Licence Appeal Tribunal File Number: 16350/MVIA

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

Between:

Stradaworx Inc o/a Stradaworx Paving

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

Phil Pecoraro, Representative

For the Respondent:

Leila Pereira, Representative

HEARD: October 29, 2024

OVERVIEW

1The appellant, Stradaworx Inc. o/a Stradaworx Paving, 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 its 2002 International commercial vehicle. The impoundment occurred on October 3, 2024. At the time of the impoundment, an employee R-Kenneth Munn was driving the commercial vehicle while his licence was suspended for a Criminal Code conviction.

2In the notice of appeal, the appellant is listed as Stradaworx Paving. In the Notice to Registrar and RIN Summary, the owner of the commercial vehicle is listed as Stradaworx Inc. At the hearing, the appellant’s representative clarified that the owner of the commercial vehicle is Stradaworx Inc. and the company is operating as Stradaworx Paving. This decision will list the appellant as Stradaworx Inc.

3Prior to the hearing, the appellant identified several grounds of appeal that it would be asserting. However, at the hearing, the appellant advised that it was proceeding solely on the ground that it exercised due diligence to determine that the driver’s licence of the driver was not under suspension.

ISSUE

4The issue in dispute is:

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

RESULT

5I find the appellant has not established that it exercised due diligence in accordance with section 50.2(3)(c) of the Act. The impoundment of the vehicle is confirmed.

ANALYSIS

6The respondent presented uncontradicted evidence which establishes that:

i. the appellant is the registered owner of the impounded commercial vehicle, a 2002 International (the “vehicle”);

ii. on October 3, 2024, the police discovered the vehicle being driven by R-Kenneth Munn (the “driver”); and

iii. the licence of the driver was under suspension for a Criminal Code conviction at the time the police detained the vehicle for impoundment.

Whether the appellant exercised due diligence in accordance with the Act

7The burden is on the appellant to prove on a balance of probabilities that it exercised due diligence in attempting to determine that the driver’s licence of the driver was not suspended at the time the vehicle was detained in order to be impounded. I find that the appellant has not met its burden.

8This ground of appeal requires the vehicle owner to show on a balance of probabilities that it took reasonable steps to determine that the driver’s licence was not suspended at the time the vehicle was detained to be impounded. 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 suspended. 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.

9I find the appellant did not take reasonable steps to confirm that the driver’s licence of the driver was not suspended at the time the vehicle was detained in order to be impounded.

10The appellant’s president and controller, Mr. Phil Pecoraro, offered testimony on behalf of the appellant. He testified that the appellant is a small company of about 8 to 9 people, and he is responsible for onboarding new employees and completing and retaining all paperwork.

11Mr. Pecoraro testified that, in approximately 2020, the appellant hired the driver as a temporary general labourer to work on construction sites. By 2021, the driver was working more regularly about 4 to 5 days a week. Around late 2022 or early 2023, the appellant experienced issues with its driver pool and thus offered Mr. Munn a role as a driver. At the time, the driver had mentioned to Mr. Pecoraro that he had a valid Newfoundland driver’s licence that he could upgrade to a commercial licence and drive for the appellant. The driver started the process to upgrade his driver’s licence to a commercial driving licence. Mr. Pecoraro testified that, in about March 2024, the driver showed him paperwork that he had obtained his commercial driver’s licence in Newfoundland. He testified that, at the time, he did not conduct a CVOR licence check or any other checks for Ontario.

12Mr. Pecoraro testified that he did not speak with the driver about obtaining a commercial vehicle driver’s licence through the Province of Ontario. He testified that the driver was from Newfoundland and visited there regularly. He assumed that the driver had roots in Newfoundland which is why he opted to keep his licence there.

13Mr. Pecoraro testified that the appellant’s usual procedure is to verify that an employee’s licence is valid by paying a third-party to conduct a background check of the driver’s driving history. The third-party only performs these services for Ontario licences. The usual practice is for the employee to present their driver’s licence and the third-party would conduct the licence check and provide information showing demerit points and three years of traffic infractions. Mr. Pecoraro testified that this usual process was not followed for the driver as his licence was not issued in Ontario.

14Mr. Pecoraro testified that the appellant did not conduct any checks on the driver’s driving privileges in Ontario, and that he assumed that the driver was able to drive in Ontario as he had obtained a commercial driver’s licence in Newfoundland. He testified that the appellant took no steps to perform any searches on the MTO website or with Service Ontario to determine the licence status of the driver in Ontario. He testified that he did not ask the driver for his Ontario driver’s abstract which is what he would usually do prior to allowing a driver to drive. He testified that he trusted the driver and his assertion that he could drive a commercial vehicle in Ontario. He testified that he was comfortable taking no additional steps once the driver had obtained his commercial licence in Newfoundland. He assumed that because the driver had a valid commercial driver’s licence in Newfoundland, he could drive in Ontario.

15The Registrar presented evidence that established that the driver held a valid driver’s licence in Ontario until it expired in 2013, and he did not renew. He incurred a Criminal Code conviction in Ontario for an impaired offence in 2021.

16In the circumstances, I find that the appellant did not take reasonable steps to determine that the licence of the driver was not suspended. The appellant relied upon the fact that the driver had obtained his commercial licence in Newfoundland, and assumed the driver could drive in Ontario. I find that the appellant took no steps to make inquires as to the driver’s driving privileges in Ontario. It did not request the driver’s Ontario driver’s abstract or make any inquires of the MTO or Service Ontario. It also did not follow its usual procedure of having a third-party conduct a background check of the driver’s driving history.

17As noted above, this ground of appeal requires the vehicle owner to demonstrate the exercise of due diligence by showing that it took reasonable steps to determine that the driver’s licence of the driver was not suspended. In my view, due diligence required the appellant to do more than it did, and I find that it did not take reasonable steps. The appellant has therefore not met its burden.

18Given 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 the driver’s licence of the driver was not suspended at the time the vehicle was detained in order to be impounded.

ORDER

19On 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.