Licence Appeal Tribunal File Number: 15550/MVIA

In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.

Between:

Gideon Oti-Gyamfi

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

Gideon Oti-Gyamfi

For the Respondent:

Leila Pereira, Representative

HEARD: January 26, 2024

OVERVIEW

1The appellant, Gideon Oti-Gyamfi, appeals under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”) from the 45-day impoundment of his 2014 Toyota motor vehicle. The impoundment occurred on January 7, 2024. At the time of the impoundment, his elder brother Evans Oti was driving the vehicle contrary to a condition on his driver’s licence that prohibited him from driving a motor vehicle not equipped with an ignition interlock device for a prescribed reason.

2Prior to the hearing, the appellant identified several grounds of appeal that he would be asserting. However, at the hearing, the appellant advised that he was proceeding solely on the ground that he exercised due diligence in attempting to determine that his brother’s driver’s licence was not subject to an ignition interlock condition at the time the motor vehicle was detained in order to be impounded.

ISSUE

3The issue in dispute is:

i. Whether the appellant exercised due diligence in accordance with section 50.2(3)(c) of the Act.

RESULT

4I find the appellant has not established that he exercised due diligence in accordance with section 50.2(3)(c) of the Act. The impoundment of the vehicle is confirmed.

ANALYSIS

5The respondent presented uncontradicted evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2014 Toyota (the “vehicle”);

ii. on January 7, 2024, the police discovered the vehicle being driven by Evans Oti (the “driver”); and

iii. the driver had a valid driver’s licence but at the time of impoundment it was subject to a condition, imposed under a conduct review program, which prohibits the driver from driving a vehicle not equipped with an ignition interlock, which was the result of a Criminal Code conviction.

Whether the appellant exercised due diligence in accordance with the Act

6The burden is on the appellant to prove on a balance of probabilities that he exercised due diligence in attempting to determine that the driver’s licence of the driver was not subject to an ignition interlock condition at the time the vehicle was detained in order to be impounded. I find that the appellant has not met his burden.

7This ground of appeal requires the vehicle owner to show on a balance of probabilities that he took reasonable steps to determine that the driver’s licence was not subject to an ignition interlock condition. In this context, due diligence requires more than making assumptions of the facts. It requires specific steps to be taken by the owner to confirm that the licence was not subject to an ignition interlock condition. The specific steps that amount to due diligence depend on the circumstances of each case. Reasonable care does not mean perfection. The Tribunal has previously held that these steps or actions could include examining the driver’s licence card or document, viewing Ministry of Transportation Ontario (“MTO”) documents that pertain to the driver’s licence status, inquiring of the MTO online or at Service Ontario as to the driver’s licence status, or discussing the licence status in conversation with the driver. These various steps or actions are not an exhaustive list. The level of inquiry and action required can depend on the nature of the relationship between the owner and the driver.

8I find the appellant did not take reasonable steps to confirm that the driver’s licence of the driver was not subject to an ignition interlock condition at the time the vehicle was detained in order to be impounded.

9The appellant testified that he was unaware that the driver’s licence had a condition requiring an ignition interlock condition. He testified that he was away attending university when he believes the condition was imposed. He testified that he first learnt of the imposed condition when the driver called him and told him the vehicle had been impounded, and why. He testified that he also spoke with a police officer who told him that there was a mandatory ignition interlock condition on the licence.

10The appellant testified that prior to allowing the driver to use the vehicle, he had reviewed the driver’s driving “abstract” which he believed did not note any conditions on the licence. The “abstract” was shown to the appellant by his father.

11I note that the “abstract” that the appellant refers to is entitled “Driver’s Licence History” and is dated November 28, 2023. The Registrar’s representative testified that a Driver’s Licence History is a history of the licence, meaning its issuance and renewals, and does not list any Criminal Code or Highway Traffic Act offences or convictions. I accept this testimony and note that the document clearly does not list any offences or convictions.

12The appellant’s father, Joseph Oti, testified that he wanted to add the driver to the family’s car insurance policy, as the driver was going to be residing in the family home and could have needed to run errands. Mr. Oti testified that he had asked the driver to obtain his driver’s licence abstract to make sure everything was okay and had been provided with what he believed was an “abstract”. He testified that he did notice that the document was entitled “Driver’s Licence History” and there was a “Y” notation after condition/restriction. He testified that he was unaware that the “Y” denoted a condition on the driver’s licence, specifically an ignition interlock. He thought it was a code of some kind but did not realize that the “Y” meant yes to a condition on the licence. He relied upon the language of “Renewal – D/L issued” on November 18, 2022.

13The appellant’s father testified that he spoke with the driver and asked him if his driver’s licence was okay, as he was going to put the driver on the family’s car insurance policy. The driver replied in the affirmative. Based upon his review of the “abstract” and conversation with the driver, he believed that the driver had a valid driver’s licence that was not subject to any conditions, including an ignition interlock condition.

14The appellant testified that his father showed him the “abstract” on his own phone, and he reviewed it. The appellant testified that he was not experienced enough to know the difference between a driver’s licence abstract and a Driver’s Licence History. He testified that he did not ask the driver what “Condition/Restriction . .*/Y” meant in the “abstract”. He testified that he did not realize that “Y” meant yes, the driver was subject to a condition or restriction. He thought the “Y” was a category or a place holder. He testified that his father also told him that the driver had a valid driver’s licence and was okay to drive, and he relied upon that assurance. The driver also told him, on one occasion, that he was okay to drive and did not mention being subject to an ignition interlock condition or that he had a Criminal Code conviction. The appellant testified that he trusted and relied upon the confidence of his father and elder brother, two authority figures in his life.

15The driver testified that he did not tell his family about his Criminal Code conviction. He testified that he believed he had completed all the requisite steps in order to have a valid driver’s licence without any conditions. However, he acknowledged that his current physical driver’s licence states “I” under conditions for ignition interlock.

16In the circumstances, I find that the appellant did not take reasonable steps to determine whether the driver had a driver’s licence that was not subject to an ignition interlock condition. I find that the appellant’s reliance upon his father and the driver’s assurances is not a reasonable step. His viewing of the “abstract” without making further inquires of any kind when he noticed the “Y” alongside condition/restriction is not a reasonable step. I agree with the Registrar that when the appellant noticed the “Y” he should have asked additional questions of the driver. He could have also called the MTO for additional clarification or conducted a MTO online search on the driver, particularly, as he had the driver’s licence number. A search on the MTO website would have revealed that the driver had a valid licence but that it was subject to a condition.

17The appellant also did not ask to review the driver’s physical driver’s licence where he would have seen an “I” under restriction/condition denoting ignition interlock.

18As noted above, this ground of appeal requires the vehicle owner to demonstrate the exercise of due diligence by showing that he took reasonable steps to determine that the driver’s licence of the driver was not subject to an ignition interlock condition. In my view, due diligence required the appellant to do more than he did, and I find that he did not take reasonable steps. The appellant has therefore not met his burden.

19Given the evidence before the Tribunal, I find, on a balance of probabilities, that the appellant did not exercise due diligence under the Act to determine that his brother’s driver’s licence was not subject to an ignition interlock condition at the time the vehicle was detained in order to be impounded.

ORDER

20On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the impoundment of the appellant’s vehicle is confirmed.