Licence Appeal Tribunal File Number: 14845/MVIA

In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended

Between:

Dilbagh Singh Walia

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

Dilbagh Singh Walia, Self-Represented Gurtek Walia, Applicant’s son

For the Respondent:

Ian Sookram, Representative

HEARD: May 18, 2023

OVERVIEW

1Mr. Dilbagh Singh Walia, the appellant, appeals from the 45-day impoundment of his 2016 Toyota Rav 4 motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The appellant’s motor vehicle was impounded on April 5, 2023. At the time of the impoundment, Romaine Ropon Sam was driving the vehicle while his licence was under suspension resulting from a prescribed criminal conviction.

2The appellant appeals on the grounds that he exercised due diligence in accordance with section 50.2(3)(c) of the Act.

ISSUE

3The issue in dispute is:

i. Whether the ground of due diligence under section 50.2(3)(c) of the Act is available to the appellant?

RESULT

4I find the ground of due diligence in accordance with section 50.2(3)(c) of the Act is not available to the appellant, and therefore, pursuant to section 50.2(5), I dismiss the appeal.

ANALYSIS

5The respondent presented evidence, which I accept, that establishes the following:

i. the appellant is the registered owner of the impounded vehicle, a 2016 Toyota Rav 4 (the “vehicle”);

ii. on April 5, 2023, the police discovered the impounded vehicle being driven by Romaine Ropon Sam; and

iii. Mr. Sam’s licence was under suspension for a Criminal Code conviction at the time it was impounded.

Whether the ground of due diligence is available to the appellant?

6I find that due diligence pursuant to s. 50.2(3)(c) of the Act is not a ground of appeal available to the appellant in the circumstances.

7The due diligence ground of appeal requires the appellant to establish on a balance of probabilities that he took reasonable steps in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time the vehicle was detained in order to be impounded was not then under suspension.

8This matter involves the appellant renting his personal vehicle to another. The appellant decided that he could make money renting his vehicle when he was not using it. The appellant’s son testified that, a few weeks prior to the impoundment, he had set up a profile on the TURO private carsharing application (“TURO”) for his father. He testified that the vehicle had been rented out through TURO to a person (the “renter”) that met all the requirements to be a renter under TURO.

9The appellant’s son testified that the renter rented the vehicle for a three day period from April 4, 2023 to April 7, 2023. He testified that when the renter arrived to pick up the vehicle, he asked for the renter’s driver’s licence and took a picture of the licence. He then uploaded the picture of the renter’s driver’s licence to the TURO application, as required. The appellant’s son testified that TURO checks to ensure that the renter’s licence is not suspended. He is unsure how TURO checks that a driver’s licence is not suspended, but he insists that they perform the check. The appellant’s son testified that only the person picking up the vehicle is authorized to drive the vehicle as per the terms of the rental.

10I note that there is no evidence before the Tribunal to indicate that the renter’s driver’s licence was suspended.

11The appellant’s son testified that on the day the vehicle was to be returned, April 7, 2023, he got a call from an unknown male who told him the vehicle was impounded as a person was caught drinking and driving. He testified that, without the appellant’s knowledge and in contravention of the rules of TURO, the vehicle was driven by someone other than the renter. It was driven by Romaine Ropon Sam, a person whose licence was suspended.

12The appellant’s son testified that TURO prohibits anyone other than the renter from driving. I note that it would appear that the renter breached the rental agreement. A representative from TURO told him that this is a rare incident and they have banned the renter from TURO. The appellant’s son testified that TURO is attempting to resolve the situation, and pay the impoundment costs and towing fees to bring the vehicle back to his home.

13I note that the appellant asks the Tribunal to determine that due diligence under section 50.2(3)(c) includes circumstances where the owner rents his vehicle to a person with a valid licence who then lends, or allows, another person to drive it. In my view, the language of section 50.2(3)(c) cannot be interpreted to include those circumstances.

14Section 50.2(3)(c) of the Act, provides as follows:

(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may order the Registrar to release the motor vehicle are,

(c) that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension or subject to the condition described in paragraph 2 of subsection 55.1 (1);

15As set out in the Act, an appeal against impoundment based on due diligence is only available when a vehicle owner, having made efforts to establish a person has a valid licence, allows that person the use of the vehicle and later discovers that that person’s driver’s licence was in fact suspended. Thus, the due diligence ground of appeal is intended to apply to circumstances where the individual who was driving at the time of impoundment is an individual who the owner permitted to drive the vehicle. It is not intended to apply to circumstances where the permitted person then allows someone else to drive the vehicle.

16I note that the Tribunal has previously concluded in Ott v. Registrar of Motor Vehicles, 2022 CanLII 46859 (ON LAT) that the due diligence ground of appeal is not available to an appellant in such circumstances on the basis that the vehicle owner cannot practically prevent an unlicensed individual from driving the vehicle once they have relinquished control over the vehicle. Though I am not bound by other decisions of this Tribunal, I have considered the reasoning in Ott and am persuaded to apply it here.

17Under the current circumstances, I find that Mr. Sam was not the intended driver of the vehicle. Section 50.2(3)(c) provides for an appeal where the owner exercises due diligence as it pertains to the licence status of the intended driver of the vehicle. In this case the intended driver was the renter, and not Mr. Sam.

18Given the above, I find, that the ground of due diligence is not available to the appellant and his appeal must fail.

Conclusion

19Under the circumstances, the appellant’s appeal pursuant to section 50.2(3)(c) of the Act must fail.

ORDER

20On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the appeal is dismissed.