Licence Appeal Tribunal File Number: 14721/MVIA

In the matter of an appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle pursuant to section 55.1 of the Act for driving while licence suspended.

Between:

Claude Trudel

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Claude Trudel, Appellant (self-represented)

For the Respondent:

Leila Pereira, Agent

Heard by Teleconference:

April 12, 2023

OVERVIEW

1Mr. Claude Trudel (the “appellant”) appeals the impoundment of his 2020 Volkswagen Tiguan under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”) on February 24, 2023 when the driver of the vehicle, his son Marc Trudel, was found to be driving while his licence was suspended.

2The appellant filed a Notice of Appeal with the Licence Appeal Tribunal (the “Tribunal”) on March 15, 2023, four days after the legislated 15-day appeal period ended. At a motion hearing on April 6, 2023, the appellant was granted an extension to the 15-day period so that his appeal could proceed.

3After the motion was heard and the extension granted, the proceeding moved immediately to the consideration of the appeal, starting with a review of the procedural elements of the hearing.

4During the procedural review portion of the hearing, the appellant reported that he had not received the respondent’s submissions, nor had he yet been able to review the relevant background materials on motor vehicle impoundments available to him on the Tribunal website. Accordingly, the evidentiary portion of the hearing was deferred to today.

ISSUES

5The issue in dispute is:

i. Issue 1: Did the appellant exercise due diligence in attempting to determine if the driver’s licence was valid and not under suspension, pursuant to s. 50.2(3)(c) of the HTA?

RESULT

6The appellant did not exercise due diligence in attempting to determine if the driver’s licence was then not under suspension and I therefore confirm the impoundment.

ANALYSIS

7The appellant’s vehicle was being driven by his son, Marc Trudel, on February 24, 2023 when it was detained for impoundment. The respondent directed me to the driving record of Marc Trudel that confirms his licence was, on the day of the impoundment, under suspension for a prescribed Criminal Code conviction, pursuant to s. 55.1(1)(3) of the Highway Traffic Act (the “HTA”). The appellant offered no evidence to refute that the vehicle was lawfully impounded.

8The owner of a vehicle which has been impounded in accordance with s. 55.1 may, under the provisions of s. 50.2, appeal the impoundment and request an order from the Tribunal that the Registrar release the vehicle.

9A vehicle owner may only appeal a vehicle impoundment on one or more of the five grounds provided in subsection 50.2(3) of the HTA. The appellant relies on s. 50.2(3)(c), i.e., that he exercised due diligence in seeking to determine if the driver’s licence was then under suspension.

10For his appeal to succeed, the appellant must prove on a balance of probabilities that he exercised due diligence in seeking to determine his son’s driver’s licence was not under suspension at the time it was detained to be impounded.

Did the appellant exercise due diligence in seeking to determine the driver’s licence was not under suspension?

11I find that the appellant did not exercise due diligence in seeking to determine his son’s driver’s licence was not under suspension.

What is the standard for due diligence?

12The HTA does not provide a definition of due diligence. In considering what constitutes due diligence for the purposes of this hearing, I refer to how the Court and the Tribunal have ruled in previous cases and appeals where the due diligence ground is at issue.

13Previous Tribunal decisions, such as Horst v. Registrar of Motor Vehicles, 2022 CanLII 106454 (ON LAT), have found that motor vehicle owners are required to ensure that their vehicle is not driven by someone without a valid driver’s licence. Due diligence, in this context, applies to the actions the owner ought to take to meet that legal responsibility.

14In considering to what extent or standard an appellant’s actions might be undertaken to reach a threshold of due diligence, I refer to the decision of the Supreme Court of Canada in R. v. Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] 2 S.C.R 1299 at page 1326. In that case the Court describes being diligent as taking all reasonable care, and what a reasonable person would have done in the same or similar circumstances.

15Examples of what reasonable actions might be in these circumstances can be found in the Tribunal’s decision in 10719 v. Registrar of Motor Vehicles, 2017 CanLII 35348 (ON LAT):

There is a range of actions for a vehicle owner to check the status of another person’s driver’s licence before letting that person drive their vehicle. This could range from asking the person if they have a valid driver’s licence, asking to see or examine a person’s driver’s licence, or using the Ministry’s telephone or online checking service and paying a small fee to verify the status. The level of inquiry and action required will depend on the nature of the relationship between the owner and the driver, as well as on the situation – for example, whether there was an indication that the driver had a past history of licence suspensions.

16I note that there is no longer a fee for verifying the status of a driver’s licence online at the Ontario Ministry of Transportation (“MTO”) website.

17Based on how the Tribunal and the Court have defined due diligence for these purposes, I must consider the circumstances of the case, the relationship between the driver and the owner, and whether the appellant demonstrated the steps a reasonable person would take in the same or similar situation, to meet their legal obligations to exercise due diligence.

Did the appellant show reasonable care to learn the licence status of the driver?

18The appellant did not exercise reasonable care to determine his son’s licence was under suspension.

19The appellant testified that he did not ask his son if his licence was valid. He said he had no reason to believe his licence was suspended. On cross examination by the respondent, the appellant indicated he had never asked to see his son’s driver’s licence and his driver’s licence status was never discussed in conversation.

20Marc Trudel lived and worked in Kelowna, BC for three years prior to returning to Ontario in the fall of 2022. The appellant recalled a conversation with his son, several years ago, about his driving privileges in BC. The appellant could not recall whether Marc was required to get a BC licence and the topic was never raised again.

21The appellant reported that he’d seen Marc driving regularly since his return to Ontario, including driving the appellant’s car on occasion. He reported that Marc’s driving history, including that his licence was suspended on January 6, 2016, came as a complete surprise to him.

22As discussed above, the appellant has a legal duty to take reasonable steps to determine whether or not the driver’s licence was under suspension. In this case, the lack of action to seek the status of his son’s driving privileges demonstrates a lack of reasonable care towards his obligations as a vehicle owner. Put another way, knowing that one has a responsibility to ensure a driver, who is borrowing or using your vehicle, has a valid licence, a reasonable person would question them about their driver’s licence status. In this case, the appellant made no inquiry.

23Accordingly, I find the appellant did not demonstrate due diligence in seeking to determine if his son’s licence was not under suspension, as he is required to do to meet his burden under the ground in s. 50.2(3)(c).

CONCLUSION

24I find the appellant has not proven that he exercised due diligence in attempting to determine if the driver’s licence was not under suspension, pursuant to s. 50.2(3)(c).

ORDER

25Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.