Licence Appeal Tribunal File Number: 15684/MVIA
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:
Lesley Theriault
Appellant
-and-
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR: Jeffery Campbell, Vice-Chair
APPEARANCES:
For the Appellant: Lesley Theriault, Self-represented
For the Respondent: Sadia Ashraf, Agent
Heard by teleconference: March 11, 2024
OVERVIEW
1Lesley Theriault (the "appellant") appeals the 45-day impoundment of her 2006 Jeep Wrangler (the "vehicle") on February 17, 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 John Theriault (the "driver") on whose licence was a condition imposed for a prescribed reason that prohibits him from driving a vehicle that does not have an interlock ignition device.
2The appellant appealed the impoundment to the Tribunal on February 23, 2024.
3The issues to be determined are:
i. 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 subject to a condition prohibiting the driver from driving a vehicle that does not have an interlock ignition device, under s. 50.2(3)(c) of the Act.
RESULT
4I conclude that the appellant did not exercise due diligence and therefore confirm the impoundment of the vehicle.
EVIDENCE AND ANALYSIS
Issue 1 - The appellant did not exercise due diligence in accordance with [s. 50.2(3)(c)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html#sec50.2subsec3_smooth) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html).
5The burden of proof is on the appellant to establish on the balance of probabilities, which means that it is more probable than not, that she exercised due diligence in attempting to determine if the appellant had a driver's licence that was not subject to a condition prohibiting him from driving a vehicle without an interlock ignition device.
6In 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.
7Whether 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.
8Examples 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.
9The respondent presented documentary evidence which established that the appellant is the registered owner of the vehicle and that the vehicle was stopped by police while being driven by the appellant's ex-husband, the driver, whose licence required, for a prescribed reason, the installation of an interlock ignition device in any motor vehicle that he drives. The impounded vehicle was not so equipped. I am therefore satisfied that the vehicle was validly impounded.
10The appellant testified that she and her ex-husband do not live together, but she has allowed him to use her vehicle in the past, and did so on the date of the impoundment.
11The appellant testified that she was aware that the driver was convicted of driving with a blood alcohol content in excess of .80 mgs in 2017.
12In her Notice of Appeal, the appellant advised that she was aware that, after the suspension of his driver's licence, it was required that he had a condition that he not operate a vehicle without an ignition interlock device. She testified that she was advised by the driver that he fulfilled the requirements for that condition to be removed, and that, in fact, the ignition interlock device was removed on June 3, 2019.
13The appellant testified that it was her understanding that the final step in the driver having the ignition interlock requirement removed from his licence was the submission of a Substance Use Assessment form ("SUA form") to the Ministry of Transportation (the "Ministry"), which she stated was done in 2019.
14She testified that both she and the driver have since discovered, after the impoundment of the vehicle, that the Ministry did not receive the SUA form. She said that the driver has since submitted another SUA form to the Ministry.
15The appellant testified that, since the submission of the first SUA form, she believed that the ignition interlock condition was no longer on her ex-husband's driver's licence.
16When asked if she physically checked her ex-husband's driver's licence when he would use her vehicle, she said that she did so on a regular basis. She testified that she viewed the driver's licence on the day of impoundment before loaning the driver her vehicle.
17When asked if she observed the "I" condition on the driver's licence, she testified that she did but did not think much of it, not knowing what it meant. The appellant testified that she did not check the back of the driver's licence, which contained the definition of the "I" condition, indicating that he was prohibited from driving a vehicle not equipped with an ignition interlock device.
18The appellant also testified that she did not check her ex-husband's driver's licence on the MTO's website, as she was unaware of that service.
19The respondent submits that the appellant did not exercise due diligence in determining that the driver's licence of the driver was not subject to the condition in question, stating that the appellant failed to flip the driver's licence over to check the definition of the "I" condition and failed to check her ex-husband's driver's licence on the MTO website.
CONCLUSION
20I concur with the respondent in this instance. The appellant was aware of the ignition interlock condition having been imposed on her ex-husband's driver's licence. While she may have assumed that all of the requirements to have that condition removed were met, it was incumbent upon her to ensure that was the case. I note that, while she may have physically checked her ex-husband's driver's licence prior to allowing the use of her vehicle, she did not research what the "I" condition on that licence referred to, which could have been accomplished by turning over the licence to read the definition on the back. With the knowledge of the condition of the ignition interlock device having been imposed, and with the knowledge of her ex-husband's attempts to meet the requirements of removal of that condition, due diligence in this instance would require that the appellant, in the least, determine the meaning of the "I" condition that was visible to her on his driver's licence. She did not. I therefore find that the appellant did not exercise due diligence in determining that her ex-husband's driver's licence did not have the condition of the ignition interlock at the time of the impoundment.
I ORDER AS FOLLOWS:
21For the reasons set out above, and pursuant to subsection 50.2(5) of the Act, the Tribunal confirms the impoundment of the appellant's vehicle.
LICENCE APPEAL TRIBUNAL
____________________________
Jeffery Campbell, Vice-Chair
Released: March 13, 2024