16318
Licence Appeal Tribunal File Number: 16318/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.
Between:
David Bruce
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
Vice-Chair:
Hande Bilhan
APPEARANCES:
For the Appellant:
David Bruce, Appellant
For the Respondent:
Sadia Ashraf, Representative
Heard by Teleconference:
November 6, 2024
OVERVIEW
1David Bruce (the “appellant”) appeals the impoundment of his 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, a 2014 Ford Escape, was impounded on September 19, 2024. At the time of the impoundment, Robert Joseph Demers, the appellant’s friend, was driving the vehicle with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.
2The owner of a vehicle which has been impounded in accordance with s. 55.1 may, under the provisions of s. 50.2 of the Act, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”) allowing the appeal and that the Registrar release the vehicle.
3The appellant appeals on the grounds that he exercised due diligence in attempting to determine that the driver’s licence of the driver was not under suspension and that the impoundment will cause exceptional hardship.
ISSUES
4The issues in dispute are:
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 section 50.2(3)(c) of the Act; and,
whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.
RESULT
5The appellant has proven on a balance of probabilities that he exercised reasonable due diligence. It is therefore not necessary to consider whether the impoundment will result in exceptional hardship.
6I order the release of the vehicle.
ANALYSIS
The appellant exercised due diligence in accordance with s. 50.2(3)(c) of the Act.
7The burden of proof is on the appellant to establish on the balance of probabilities, which means that it is more probable than not, that he exercised due diligence in attempting to determine if the driver of his vehicle had a valid driver’s licence that was not suspended.
8In the context of an appeal under s. 50.2(3)(c) of the Act, due diligence means taking all reasonable care and what a reasonable person would have done in the same or similar circumstances. Due diligence does not require perfection.
9Whether the ground of due diligence has been made out is highly fact-specific, and whether efforts are considered to be reasonable will depend on the circumstances.
10Examples 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.
11The appellant testified that a very good friend of his introduced him a few months ago to one of her good friends, Mr. Demers. They spent time together socially and became acquainted over the last few months. When his good friend asked him if Mr. Demers could borrow his vehicle as he was buying furniture and needed larger cargo space, the appellant agreed. When Mr. Demers came to pick up the vehicle, the appellant asked if he had his licence and asked to see it, which Mr. Demers showed to him inside his wallet in a see-through sleeve. The appellant testified that he observed that the licence was an Ontario driver’s licence, had his picture, his date of birth, and a date of expiry.
12The respondent presented an Extended Driver Record Search of the driver which states that the driver lost his licence in 2006 and argued that there could not have been a valid licence produced by Mr. Demers.
13The appellant re-confirmed under cross-examination that he saw the driver’s licence. He testified that he looked at it inside Mr. Demers’ wallet and saw it through the see-through sleeve. He admitted that he did not remove the licence from the sleeve but re-confirmed that he saw the driver’s name, photo, birthdate and an expiry date, though he couldn’t recall the dates. He submitted that perhaps the licence was fraudulent but that he did what a reasonable person would do under the circumstances and had no reason to doubt the validity of the licence under the circumstances.
14The appellant admitted that he did not check the MTO website to check the status of Mr. Demers’ driver’s licence, as he was not aware that he could do that and reiterated that no ordinary individual would know that they would be expected to do so.
15The respondent stated that he didn’t sufficiently inspect the licence, he did not check the MTO database and lent his vehicle to a person he has only known for a few months. She therefore asks that I confirm the impoundment.
16While may agree with the respondent that in some cases more diligence can be expected, due diligence means taking all reasonable care, and what a reasonable person would have done in the same or similar circumstances. I find that on a balance or probabilities most reasonable people would take the same approach as the appellant under these circumstances.
17I found the appellant’s testimony to be straightforward, credible, and consistent in the evidence he presented. I am satisfied that the appellant asked to view the driver’s licence, and that he concluded that it was valid. I am also satisfied that it is not required of every driver to be aware of the opportunity to verify the licence on the MTO, and that few citizens are aware of this option.
18Because of the above, I conclude that the appellant 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 under suspension.
19Having found that the appellant exercised due diligence, I need not consider the ground of exceptional hardship.
CONCLUSION
20Given the above findings, and based upon the evidence, I find that the appellant has established on a balance of probabilities that he 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.
ORDER
21For the reasons set out above, I order the respondent to release the appellant’s vehicle.
Released: November 7, 2024
__________________________
Hande Bilhan
Vice-Chair