Licence Appeal Tribunal File Number: 15430/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:

Annette Boivin

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION and ORDER

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Annette Boivin, appellant (self-represented)

For the Respondent:

Ian Sookram, Agent for the Registrar

Heard by Teleconference:

December 20, 2023

OVERVIEW

1Annette Boivin (the “appellant”) appeals the impoundment of her 2008 Honda Accord on November 20, 2023 for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

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”) that the Registrar release the vehicle.

3For the Tribunal to order the vehicle released, the appellant must prove, on a balance of probabilities, that she satisfies at least one of the five grounds set out in s. 50.2(3) of the Act. The appellant appeals on the grounds that she exercised due diligence in attempting to determine that the driver’s licence was not then under suspension (50.2(3)(c)), and that the impoundment will result in exceptional hardship (s. 50.2(3)(d)).

ISSUES

4The issues in dispute are:

(a) Did the appellant exercise due diligence in attempting to determine that the driver’s licence was not then under suspension?

(b) Will the impoundment result in exceptional hardship?

RESULT

5I find the appellant exercised due diligence in attempting to determine if the driver’s licence was not then under suspension. Since I find the appellant satisfies the due diligence ground, it is not necessary to consider whether the impoundment will result in exceptional hardship. The Registrar is ordered to release the vehicle.

ANALYSIS

Circumstances leading to the impoundment

6Under s. 55.1 of the Act, where a police officer is satisfied that a person was driving a motor vehicle while his or her licence is under suspension for certain driving-related Criminal Code convictions, the officer must detain and impound the vehicle.

7At the time the appellant’s vehicle was detained, it was being driven by Martin Rene Douglas Dwyer, the appellant’s friend (the “driver”) who has lived with the appellant the last seven years. The respondent presented unrefuted evidence that the driver’s licence was under suspension for a prescribed Criminal Code offence pursuant to s. 55.1 of the Act at the time it was detained. Accordingly, the vehicle was lawfully impounded.

Issue 1: Due Diligence

8I find that the appellant exercised due diligence in seeking to determine if the driver’s licence was not then under suspension.

9The test to meet for establishing due diligence in the circumstances, is whether an appellant took reasonable care to determine if a driver’s licence was valid, and not then under suspension. Reasonable care does not mean perfection. To prove due diligence in this matter, the appellant must establish that she took reasonable care or steps to ensure that the driver had a valid licence when she allowed him to drive the vehicle. 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. It could also include independently researching the process of driver licence reinstatement after a suspension for a Criminal Code offence. These various steps or actions are not an exhaustive list. 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.

10The appellant testified that she discussed the status of the driver’s licence after he visited Service Ontario in October 2023 to renew his health card. The driver appeared as a witness and testified that while at Service Ontario for the health card, he inquired about the status of his driver’s licence and was told that it was eligible to be reinstated as of June 2023. He testified that he paid a fine and reinstatement fee totalling $831.00, had a new photo taken, and came away from the visit understanding that his driving privileges were reinstated.

11The driver testified that he recalled from the criminal conviction proceeding that his licence would be suspended for between six months and one year. He testified that he had not received any information from MTO in relation to the conviction, setting out the duration of the suspension of his licence and what steps he would need to take to get it reinstated.

12The driver informed the appellant of what he learned at Service Ontario and showed her the receipt for payment of the fine and reinstatement fee. After the Service Ontario visit, the driver spoke to both MTO and Service Ontario by phone, to confirm what he learned about the status of his licence at Service Ontario. These calls were on “speaker” with the appellant present to hear the conversation. Neither the driver, nor the appellant, could confirm what person or office within the agencies these calls were placed to. The appellant testified that after hearing the telephone exchange between the driver and the agents, she understood that the licence was reinstated, and the driver’s driving privileges were restored. She testified that the agent said, “he is fine to drive; no restrictions”.

13The appellant testified that a new driver’s licence card arrived in the mail soon after the visit. The Driver’s Licence History lists a transaction described as RENEWAL - D/L ISSUED on October 20, 2023.

14The appellant testified that based on what she learned from the Service Ontario visit, and that the driver received a new licence card in the mail, she did not undertake any additional steps or inquiries to confirm the licence status.

The driver had two licence profiles with MTO

15The appellant testified, and the witness corroborated, that three letters from MTO had arrived in the mail for the driver two days before the hearing. The letters were addressed with two different names for the driver. The appellant did not submit the letters as evidence and did not reveal the substance of the letters.

16The respondent submitted that at the time of the impoundment, the driver had two profiles in the licence registry, one for Martin Dwyer with licence D9616-52507-50920, at 432 Pearl St. Brockville (“52507”), and a second for Martin Rene Douglas Dwyer, number D9616-52577-50920 (“52577”), at 28 Cedar St, Brockville. The police officer who detained the vehicle for impoundment advised the Registrar by email on November 21, 2023 of the two profiles and suggested the two be merged.

17The email included a statement by the police officer that the driver “has informed me he was able to obtain his driver’s licence at service [sic] Ontario and will continue to do so in order to avoid detection from police.”

18The respondent submitted an updated, merged Driver’s Licence History for the driver which reveals that on December 5, 2023 the duplicate profiles were rectified by being merged. The driver now has only one profile and licence, 52577, in the name of Martin Rene Douglas Dwyer. The respondent submitted that the three letters the driver received on December 18, 2023 were sent to advise the driver of the two profiles being merged.

19The respondent submitted that following the driver’s Criminal Code conviction on May 2, 2023, the conviction that applies to this impoundment, the driver will have received a Notice of Suspension and a package of information informing him of the duration of the suspension and the steps he would need to take to get his driving privileges reinstated. This would have been sent to the 28 Cedar St. address in Brockville, the location the appellant and driver attest to have been living the last seven years.

20The respondent submitted that both driver’s licences were suspended at the time the driver visited Service Ontario in October and that it is likely that the Service Ontario agent referenced licence 52507 in advising the driver that it was eligible to be reinstated as of June 2023.

21The merged Driver’s Record lists transactions that have occurred since the first licence was created in 1998. The transaction record shows a reinstatement application being sent to the driver on June 9, 2023. Now that the records are merged, the respondent submitted it could not confirm whether the reinstatement application was associated with licence profile 52507 or 52577. However, the merged record of the driver’s Convictions, Discharges and Other Actions, dated December 13, 2023, lists the driver’s Criminal Code infraction of November 22, 2022, conviction number 3890879, dated May 2, 2023. The record notes that this conviction carries a licence suspension until May 2, 2024.

22Based on the evidence before me, I find it is more likely than not, that the licence profile, 52507, was eligible to be reinstated as of June 2023 and it was that profile the Service Ontario agent advised was eligible for reinstatement once fees were paid. This led to the driver’s and appellant’s conclusion that the driver’s licence and driving privileges were reinstated.

The driver knew there was more than one licence profile

23The driver testified that every time he went to Service Ontario, they created a new profile. He therefore knew, or ought to have known, that a licence being available to be reinstated in June 2023 was not the licence associated with his criminal conviction several months earlier. The driver was released from a corrections facility, in relation to the driving conviction, in May 2023. Hearing from Service Ontario, five months later, that that his licence was eligible to have been reinstated in June, he testified that it came as “a surprise to him”.

24The driver admitted that Service Ontario had different profiles for him. While I find it unlikely that, in their numerous considerations and discussions of his licence status, the topic of his more than one profile was not raised, I have no evidence before me that suggests the appellant knew there was more than one profile. She therefore had no basis for questioning the driver about multiple profiles.

25The appellant testified that she was aware of the driving conviction from November 2022 and assumed the driver could not drive for at least one year. However, faced with the information she observed from the driver’s visit to Service Ontario (new photo, receipt for fees paid, and news of a reinstated licence), hearing the verbal confirmation over the phone from MTO and Service Ontario that he could resume driving privileges, and seeing a new driver’s licence card arrive in the mail in his name shortly after, I find a reasonable person would conclude that his driving privileges were indeed reinstated.

26The appellant’s reasonable conclusion that the licence was reinstated gave her less inclination to take the kind of further steps or actions discussed above, to verify the driving credentials of the driver.

27I find the appellant exercised due diligence in seeking to determine if the driver’s licence was not then under suspension because the information she obtained from the driver’s visit to Service Ontario visit was corroborated by the phone calls with MTO and Service Ontario and by the driver having received a new driver’s licence in the mail.

Issue #2 – Exceptional Hardship

28Since I find that the appellant exercised due diligence in seeking to determine if the driver’s licence was not then under suspension, it is not necessary to consider the exceptional hardship ground on which the appellant relies.

CONCLUSION

29I find the appellant exercised due diligence in attempting to determine if the licence was not then under suspension. Since the appellant need only satisfy one of the five grounds in s. 50.2(3) to succeed in her appeal, it is not necessary to consider the exceptional hardship ground.

ORDER

30Pursuant to subsection 50.2(5) of the Act, I direct the Registrar to release the impounded vehicle.