Licence Appeal Tribunal File Number: 15810/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:

Sarah Elizabeth Rees

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION and ORDER

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Sarah Rees, appellant (self-represented)

For the Respondent:

Leila Pereira, Agent for the Registrar

Heard by Teleconference:

April 23, 2024

1Sarah Rees (the “appellant”) appeals the impoundment of her 2021 Chevrolet Silverado on April 2, 2024, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

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 HTA, 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 HTA. The appellant appeals on the grounds that she exercised due diligence in attempting to determine that the driver’s licence was not under suspension at the time her vehicle was detained to be impounded (s. 50.2(3)(c)), and that the impoundment will result in exceptional hardship (s. 50.2(3)(d)).

ISSUES

4The issues in dispute are:

i. Did the appellant exercise due diligence in attempting to determine if the driver’s licence was not under suspension at the time her vehicle was detained to be impounded?

ii. Will the impoundment result in exceptional hardship?

RESULT

5I find that the appellant has demonstrated that she exercised due diligence in attempting to determine if the driver’s licence was not under suspension at the time her vehicle was detained to be impounded. As I have found that the appellant satisfies the due diligence ground in s. 50.2(3)(c), it is not necessary to consider if the impoundment will result in exceptional hardship.

ANALYSIS

Circumstances leading to the impoundment

6Under s. 55.1 of the HTA, where a police officer is satisfied that a person was driving a motor vehicle while his or her licence was 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 Andrew Hepburn (the “driver”), a friend of the appellant’s former spouse. 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 HTA at the time it was detained. Accordingly, the vehicle was lawfully impounded.

Due Diligence

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

9The test to meet in the s. 50.2(3)(c) due diligence ground, is whether the appellant took reasonable care to determine if the intended driver’s licence was valid and not under suspension.

Standard for due diligence

10The HTA does not provide a definition of due diligence. However, previous rulings of the Court and the Tribunal provide guidance as what constitutes due diligence for these purposes. For example, in Horst v. Registrar of Motor Vehicles, 2022 CanLII 106454 (ON LAT), the Tribunal found that due diligence applies to the actions the owner ought to take to meet the legal responsibility of ensuring their vehicle is operated by a licensed driver.

11In considering the extent of those actions, R. v. Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] 2 S.C.R 1299 (“R. v. Sault”) describes due diligence as taking all reasonable care and the actions a reasonable person would have taken in the same or similar circumstances.

12The Tribunal, in 10719 v. Registrar of Motor Vehicles, 2017 CanLII 35348 (ON LAT), found that the extent of inquiry and action to determine the validity of a licence may also depend on the nature of the relationship between the owner and the driver, as well as on the circumstances under which the driver is permitted to use the vehicle.

13To prove due diligence, the appellant must therefore establish that she took reasonable care and undertook actions to determine that the intended driver was properly licensed. Reasonable care does not mean perfection and is considered in the context of the circumstances under which use of the vehicle is being permitted by its owner.

The appellant took reasonable care to determine the validity of the driver’s licence

14The appellant testified that her former husband asked her to lend the vehicle to a friend of his, the driver, as a favour. The driver is known to the appellant. She testified that he is employed at a local construction company and she has seen him driving company vehicles for work in and around Elliot Lake, her home community. Before agreeing to lend the vehicle to the driver, she asked her ex-spouse about the status of the driver’s licence. The ex-spouse assured her there was no problem with driver’s driving privileges.

15The appellant testified that when the driver presented himself to borrow the vehicle, he showed her a driver’s licence card and said, “I was told you would want to see my driver’s licence”. She testified that the driver presented what seemed to be a legitimate licence card.

16The respondent submitted that the licence card presented to the appellant must have been invalid and submitted evidence that he voluntarily surrendered his driver’s licence in June 2023. The driver’s licence was suspended on January 16, 2018 for a Criminal Code driving offence, as noted above. The respondent presented evidence that the driver thereafter obtained a driver’s licence in Newfoundland and Labrador, and later, in Alberta. Upon his return to Ontario in June 2023, the driver was unable to reinstate his Ontario driver’s licence. It remained suspended and was subject to unpaid fines.

17The respondent submits that when a driver surrenders his or her driver’s licence, as I find this driver did in June of last year, the physical licence card is not always returned to the issuer (MTO or Service Ontario). The respondent submits that in this case, the driver appears to have kept an invalid licence card, and it was that card which he presented to the appellant.

18The respondent submitted that the appellant did not take sufficient care to investigate the status of the driver’s licence. For example, she did not inspect the expiry date of the card or use the MTO website to check the validity of the licence. The respondent submitted that the appellant relied too heavily on her former spouse to determine the validity of the driver’s privileges. The respondent seeks confirmation of the impoundment.

19I find the appellant took the steps that a reasonable person would have, under the circumstances, to determine that the driver’s licence was not under suspension.

20The circumstances, in this case, include agreeing to lend the vehicle as a favour to her ex-spouse, who is not only the father to two of her children, but also the source of child support income she depends on. The relationship between the appellant and the driver connects only through the ex-spouse, who asked the appellant to lend the vehicle and gave assurances of the driver’s credentials. Despite those assurances and seeing for herself that the driver was operating company vehicles, the appellant still sought confirmation of the driver’s licence status by requesting that he show her a licence card.

21The appellant was forthcoming and credible in her testimony. Although her examination of the card missed the fact that it was expired, her efforts to determine the status of the driver’s licence are consistent with what a reasonable person would do in the same or similar circumstances, to ensure their vehicle is operated only by a licensed driver. Having observed the driver operating company vehicles for work, the appellant could reasonably expect that his driving credentials had been scrutinized by the employer. Any apprehension she might have had about the driver’s credentials was tempered by her ex-spouse’s endorsement, that the driver was operating vehicles on public roadways for work, and that he showed her what appeared to be a valid licence card. In these circumstances, a reasonable person would conclude the driver’s licence was not under suspension.

22The respondent noted that she did not ask the driver when his licence expires, and her examination of the physical licence card was not thorough enough to reveal that it was expired, however I find that the extent of her actions, in this case, meet the standard in R. v. Sault. She took reasonable care and the actions that a reasonable person would take in the same or similar circumstances.

23I find the appellant meets her burden in proving, on a balance of probabilities, that she exercised due diligence in attempting to determine if the driver’s licence was not then under suspension.

Exceptional Hardship

24As I have found that appellant meets the ground of due diligence, it is not necessary to consider whether the impoundment will result in exceptional hardship. The appellant need only satisfy one of the five grounds in s. 50.2(3).

CONCLUSION

25I find the appellant exercised due diligence in attempting to determine if the driver’s licence was valid and not then under suspension, in relation to s. 50.2(3)(c) of the HTA.

ORDER

26Pursuant to subsection 50.2(5) of the HTA, I order the Registrar to release the appellant’s motor vehicle.