Ryan Powell v. Registrar of Motor Vehicles, 2024 CanLII 126297

Licence Appeal Tribunal

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:

Ryan Powell Appellant

-and-

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Jeffery Campbell, Vice-Chair

Appearances:

For the Appellant: Ryan Powell For the Respondent: Sadia Ashraf, Agent

Heard by teleconference: December 13, 2024

Overview

1Ryan Powell (the "appellant") appeals the 45-day impoundment of his 2018 Jeep Cherokee (the "vehicle") on November 25, 2024, 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 K.K., whose licence was suspended due to a criminal conviction.

2The appellant appealed the impoundment to the Tribunal on November 26, 2024.

ISSUES

3The issue to be determined is:

1. Whether 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 impounded was not then under suspension, under s. 50.2(3)(c) of the Act.

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

RESULT

4I conclude that the appellant exercised due diligence, and I order the release of the vehicle. Given my conclusion about due diligence, I do not need to determine the exceptional hardship ground of appeal.

ANALYSIS

5The Registrar of Motor Vehicles (the "Registrar") presented evidence that the vehicle was stopped by police while it was being driven by K.K. ("K.K.") whose licence was suspended due to a prescribed Criminal Code conviction. I am therefore satisfied that the vehicle was validly impounded.

Issue 1 - I find the appellant did exercise due diligence in accordance with [section](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html#sec50.2subsec3_smooth) 50.2(3)(c) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html).

6The 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 that the driver's licence was valid at the time of the impoundment.

7The appellant testified that he works as a porter at a car dealership in the Greater Toronto Area. K.K. also works at the same dealership in the service department, having started employment there approximately one year ago. Shortly after K.K. began working at the dealership, the appellant asked him if he had a driver's licence. K.K. responded that he did, but preferred to take the train to work as that is more convenient.

8Part of K.K.s duties at the dealership included driving vehicles to and from the back and front of the dealership as well as a shuttling customers to and from their homes.

9The appellant testified that, upon being hired at the dealership, he underwent a background check which included providing his driver's licence and undergoing a criminal record check. The appellant's manager advised him that all employees undergo the same background check.

10On the day of the impoundment, K.K. had asked the appellant to borrow his vehicle to run an errand over his lunch break. The appellant agreed.

11The appellant submits that it was his assumption that K.K. possessed a valid driver's licence as he had passed the same background check as the appellant underwent, and the dealership was regularly utilizing K.K. as a driver. Also, K.K. had previously told the appellant that he did have a valid driver's licence.

12The Registrar submits that the appellant failed to exercise due diligence. The appellant did not ask to see K.K.'s driver's licence and did not subsequently verify the licence with Service Ontario or on the Ministry of Transportation website.

13In 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.

14Whether 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.

15Examples 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.

Conclusion regarding due diligence

16In the circumstances described, I conclude the appellant's actions to be reasonable. K.K.'s assurance to the appellant that he had a valid driver's licence was verified, in the appellant's mind, by the dealership allowing K.K. to drive its vehicles both on and off of the lot. That assumption was further confirmed by the manager of the dealership advising the appellant that all of the employees undergo the same background check that the appellant had, which included a driver's licence check. Also, within the year period that the appellant had been worked with K.K., there was no intervening event that would cause the appellant to further question the continued validity of K.K.'s licence.

17Given the context above, I conclude that a reasonable person would fairly assume that the driver had a valid driver's licence. In fact, I find that a reasonable person, given the same situation, would not rationally think to request to view their co-worker's driver's licence. As such, I find that the appellant has proven on a balance of probabilities that he exercised due diligence in determining that the driver's licence of the driver of the motor vehicle at the time it was impounded was not then under suspension.

18As I have found that the appellant has exercised due diligence, it is not necessary to consider the ground of exceptional hardship.

I ORDER AS FOLLOWS:

19Pursuant to s. 50.2(5) of the Act, I order the Registrar to release the appellant's motor vehicle.