Meagan See-Lyons v. Registrar of Motor Vehicles, 2023 CanLII 91423

Licence Appeal Tribunal File Number: 15204/MVIA

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 that Act

Between:

Meagan See-Lyons Appellant

-and-

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Jeffery Campbell, Vice-Chair

Appearances:

For the Appellant: Meagan See-Lyons Lauren Diaz, Student-At-Law

For the Respondent: Andrew Sookhoo, Agent

Heard by teleconference: September 21, 2023

Overview

1Meagan See-Lyons (the “appellant”) appeals the 45-day impoundment of her 2018 Ford F150 (the “vehicle”) on September 2, 2023, under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). At the time of the impoundment, the vehicle was being driven by Nathan Taylor while his licence was under suspension.

Issues

Preliminary Issue

Are documents from the appellant which were served not in compliance with the Licence Appeal Tribunal Rules admissible?

2I find that the documents served late are admissible for the following reasons.

3The Respondent noted that Appellant served an Affidavit of Meagan See-Lyons dated September 15, 2023 and a letter from nephrologist, Dr. Mayur Govind dated April 29, 2021 on today’s date. The Registrar advised that while he did not object to the entrance of these documents as exhibits, he wanted the late exchange of documents noted for the record.

4Rule 23.3 of the Licence Appeal Tribunal Rules (August 21, 2023) (the “Rules”) states that disclosure shall be made by the appellant at least 10 days prior to the hearing. Rule 9.3 of the Rules states that, “If a party fails to comply with any Rule, direction or order with respect to disclosure, exchange, production, or inspection of documents or things, that party may not rely on the document or thing as evidence without the permission of the Tribunal”. Rule 9.3 sets out factors which the Tribunal may consider in determining to allow the entrance of documents exchanged not in compliance with the Rules including Rule 23.3.

5While the appellant did not provide a reason for the late service of the documents, other than the fact that she was unrepresented until today and did not understand the disclosure rules, the information contained in the documents sought to be admitted is not in dispute and the Registrar did not suggest that it would be prejudiced as a result of their admission.

6The Registrar does not oppose the admission of the documents in question but only asked that their late service be noted.

7Concerning relevance, the affidavit of the appellant is of limited value as she will give oral testimony in this hearing. With respect to the letter of Dr. Govind, I find that it is relevant with respect to the issue of exceptional hardship.

8For the above reasons, I will admit into evidence both the Affidavit of Meagan See-Lyons and the letter of Dr. Mayur Govind.

Substantive Issues

9The issues to be determined are:

i. Whether 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, under s. 50.2(3)(c) of the Act.

ii. Whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.

Result

10For the reasons that follow, I find that the appellant did exercise due diligence and, pursuant to s. 50.2(5), I therefore order the respondent to release the vehicle.

Evidence and Analysis

Did the appellant exercise due diligence?

11The Registrar presented evidence, which satisfies me that:

i. the appellant is the registered owner of the impounded vehicle;

ii. on September 2, 2023, the police discovered the impounded vehicle being driven by Nathan Taylor (“Mr. Taylor”); and

iii. Mr. Taylor was driving the vehicle while his driving privileges were under suspension resulting from a prescribed Criminal Code conviction at the time of the impoundment.

12Based on the uncontradicted evidence in this case, I am satisfied that the vehicle was lawfully detained and impounded under s. 55.1 of the Act.

13The burden of proof is on the appellant to establish on the balance of probabilities, which means that it is more probable than not, that she exercised due diligence in attempting to determine the driver’s licence status. In determining the standard of due diligence in the context of administrative appeals, I agree with the following comments from the Tribunal’s decision in Marshman v. Registrar of Motor Vehicles, 2020 CanLII 95846:

As to what constitutes “due diligence”, the standard was considered by the Supreme Court of Canada in R. v. Sault Ste Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 at p. 1326 in the context of a defence to a provincial offence. Due diligence requires the appellant to prove she took “all reasonable care” to avoid the particular event. This involves a consideration of what a reasonable person would have done in the circumstances.

In Lévis (City) v. Tétreault, 2006 SCC 12, [2006] S.C.J. No. 12 (S.C.C.), the court held passivity should not be confused with diligence, rather “the concept of diligence is based on the acceptance of a citizen’s civic duty to take action to find out what his or her obligations are.”

14Whether the ground of due diligence has been made out is highly fact-specific, and the degree to which efforts are considered to be reasonable will vary with circumstances.

15The appellant testified that she lives with her partner, Ryan, who owns and operates a pool business. She advised that she has serious health issues and attends regular medical appointments in Orillia, Barrie and Toronto with respect to testing and treatment.

16As her partner does not possess a valid driver’s licence, the appellant testified that she advertised for a driver to transport her to her medical appointments when she is too unwell to transport herself. After responding to the advertisement, Mr. Taylor met with the appellant and her partner who interviewed him for the position. The appellant testified that she asked Mr. Taylor if he was fully licenced and insured. The driver then presented her with his “valid” G-class driver’s licence and proof of insurance from Aviva Insurance Company. He also assured her that he had no prior driving charges or tickets. Based upon the interview, and viewing his driver’s licence and proof of insurance, she hired Mr. Taylor to be her driver.

17On September 2, 2023, while Mr. Taylor was using the vehicle to pick up groceries and clean laundry for the appellant, he was stopped by the OPP who, upon discovering that Mr. Taylor was driving while under suspension for a criminal conviction, impounded the vehicle.

18In cross-examination the appellant confirmed that, while she did require viewing his driver’s licence and proof of insurance, she did not contact the Ministry of Transportation or do an on-line check with the Ministry to determine if Mr. Taylor had a valid driver’s licence. At the time she did not know that such a service existed. Nor did she check with her insurer regarding Mr. Taylor’s licence status, as she did not know that she was required to do so.

19I found the appellant’s testimony to be forthright and credible. I accept the appellant’s testimony that she asked to see Mr. Taylor’s licence and was provided with one that was valid on its face. I also accept her testimony that she requested, and was shown, proof of insurance.

20The respondent’s submission on the ground of due diligence was that it should be dismissed as the appellant could have and should have contacted the Ministry of Transportation to determine the status of Mr. Taylor’s driver’s licence. In these circumstances, I do not agree with the respondent’s position that the appellant was required to contact the Ministry to look behind what appeared to be a valid driver’s licence. In my view that goes beyond what is expected of the “reasonable person”. In 12280 v. Registrar of Motor Vehicles, 2019 CanLII 101460, this Tribunal has held that an individual need only ensure that the proposed driver has a driver’s licence that is valid on its face. In that case, the appellant viewed and inspected the driver’s licence of the suspended driver. In the case before me, the appellant did the same, plus viewed and inspected Mr. Taylor’s proof of insurance.

21I find that the appellant exercised due diligence in attempting to determine that the licence of the driver of the motor vehicle at the time it was impounded was not then under suspension.

Will the impoundment result in exceptional hardship as that term is defined in the Act and the Regulation?

22Having found that the appellant exercised due diligence in attempting to determine that Mr. Taylor’s driver’s licence was not suspended, it is unnecessary to consider the ground of exceptional hardship.

I ORDER AS FOLLOWS:

23On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the respondent is ordered to release the appellant’s motor vehicle.