Licence Appeal Tribunal File Number: 15635/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:

Comet Contracting Ltd.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Michael Glass, Representative

For the Respondent:

Leila Pereira, Representative

Heard by teleconference:

February 21, 2024

OVERVIEW

1Comet Contracting Ltd. (the “appellant”) appeals the impoundment of its 2008 Ford F-350 truck on February 7, 2024 for 90 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”). A vehicle owned by the appellant was impounded on November 24, 2023. Because this is a second impoundment for the appellant within the last two years, the period of impoundment is 90 days pursuant to s. 55.1(3)2 of the Act and s. 1 of Ontario Regulation 631/98 (the “Regulation”).

2The owner of a vehicle which has been impounded in accordance with s. 55.1 may, under 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 it 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 it exercised due diligence in attempting to determine that the driver’s licence was not then under suspension, s. 50.2(3)(c).

ISSUES

4The issue in dispute is:

1. Did the appellant exercise due diligence in attempting to determine the driver’s licence of the driver of the motor vehicle at the time it was detained for impoundment was not then under suspension?

RESULT

5The appellant has not proven that it exercised due diligence in attempting to determine the driver’s licence was not then under suspension. The impoundment is confirmed.

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 on a highway 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 Gerald Collin (the “driver”), an employee of the appellant. 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.

Due Diligence

8I find that the appellant did not exercise 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 it took reasonable care or steps to ensure that the driver had a valid licence when it allowed him to drive the vehicle.

10The Tribunal has previously held in 10719 v. Registrar of Motor Vehicles, 2017 CanLII 35348 (ON LAT) 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 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.

11Barry Glass, an owner/director of the appellant, testified on behalf of the appellant that the driver was hired and commenced work with the appellant in early 2023. At the time of onboarding, the driver submitted his driver’s licence to the office manager for screening.

12Mr. Glass testified that a new employee’s driver’s licence information is collected at time of onboarding in one or more of three methods: obtaining the employee’s driver licence number and checking the status of it on the Ontario Ministry of Transportation (“MTO”) website, submitting the driver’s licence number to the company’s auto insurer for verification, or asking the driver for a supplementary driver’s abstract.

13Mr. Glass testified that he was unsure which of the three methods were undertaken by the office manager to confirm the driver’s driving privileges, but he assumed it was checked against the MTO website as a minimum.

14Mr. Glass testified that the other standard procedure the business uses to verify the status of its employees’ driving privileges is to submit an up-to-date list of employees who drive company vehicles, with their licence numbers, to its auto insurer each year, usually around the auto policy’s annual renewal date.

15As noted above, one of the appellant’s vehicles was impounded in November 2023 due to an employee driving with a suspended licence. Mr. Glass did not reveal any changes to the appellant’s operating policies or procedures following the November impoundment. However, he stated that an up-to-date list of the company’s drivers’ licence numbers was sent to the auto insurer in December 2023, one month after the November impoundment.

16Mr. Glass testified that the driver’s licence number was included in the list of employees’ licence numbers submitted to the auto insurer in December 2023, although he was unable to refer me to documentation that confirms it.

17Mr. Glass testified that after the list was submitted in December 2023, the appellant received inquires and questions from the insurer in relation to the years of experience some drivers on the list had, but the insurer did not flag or advise of any issues with the status of driving privileges associated with the licence holders listed. Mr. Glass testified that since no issues with the status of the licences were reported by the insurer, he assumed the drivers on the list, including the driver in this case, had appropriate driving privileges.

18Mr. Glass submits that the appellant took reasonable steps to confirm the driving status of the driver and seeks an order from the Tribunal to release the vehicle on due diligence grounds in s. 50.2(3)(c).

19The respondent submits that the driver’s licence was suspended on April 28, 2023, after the driver was hired by the appellant.

20The respondent submits that the appellant has provided no confirmation or referred to any documents that confirm any due diligence was undertaken to verify the driver’s driving privileges. It submits that relying on its employees to be honest, and/or the insurance company to spot issues with the status of employees’ driving privileges, falls below the due diligence standard of taking reasonable care to establish that the driver’s licence was valid, and not under suspension. The respondent seeks confirmation of the impoundment.

21I find the appellant failed to meet its burden in demonstrating that it exercised due diligence in attempting to confirm the driver’s licence was not under suspension.

22The relationship between the owner and driver in this circumstance is employer – employee. It follows then that due diligence in relation to the status of an employee’s driver’s licence will be found in a) the rigour of the appellant’s policies and procedures to ensure employees have appropriate driving privileges, and b) how reliably those policies are implemented. Put another way, if the polices are reasonably likely to reveal any issues with driving privileges, and are routinely and systematically implemented, the due diligence test would likely be met by simply following the policy.

23Mr. Glass described the appellant’s policy for confirming the licence status of its employees at the time of onboarding, but he could not confirm which, if any, of the three steps in the policy (MTO website check, auto insurer check, or driver abstract) were taken at the time of this driver’s onboarding. The driver’s licence was valid at the time of onboarding, prior to April 28, 2023, so neither of the three steps, if taken, would have identified a concern with the driver’s licence at that time.

24Aside from onboarding, the company’s only other procedure to verify driving privileges is the submitting of the list of employees and their licence numbers to its insurer once per year. Effectively, the company delegates the licence check to its insurer and expects it will advise them if there is an issue. I find this part of the appellant’s policy falls below the reasonable care test. As with this case, the status of driving privileges of employees can change at any time without the employer knowing. Checking the licence status of employed drivers only once per year in a business of between 20 and 30 employees, like the appellant’s, may leave it vulnerable to future impoundment scenarios.

25Secondly, delegating the verification of licence numbers to a third party, even a financial services institution such as an insurer, would only meet the reasonable care test if the employer was familiar with and could likely depend on the thoroughness of the process that third party would subject the list to.

26The appellant appears to have relied on the auto insurer to flag any issues with its employees’ licences, but Mr. Glass did not reveal or describe the steps or the process the insurer would typically take to verify a list of licence numbers, or even if they checked licence status. He assumed that if the insurer found an issue [with driving privileges] the appellant would be notified. As discussed above, since the insurer did not report any issues with the December 2023 list, Mr. Glass concluded all the licences were valid and not suspended. In any event it is clear on the evidence that the driver’s suspension was still in effect at the time, so whatever the insurer’s process may be, it does not appear to serve the purpose Mr. Glass assumed it would.

27I find the appellant did not exercise reasonable care to ensure the driver had a valid licence because it claims, without documenting have done so, to have checked the driver’s licence status only once, at the time of hire, then relied on an annual process of submitting it, as part of a list of employees’ driver’s licence numbers to a third party, without knowing whether or how the third party would scrutinize the list it received.

28Accordingly, I find that the appellant did not exercise due diligence in seeking to determine if the driver’s licence was then not under suspension.

ORDER

29Pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the vehicle.