Licence Appeal Tribunal File Number: 15893/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:

Marina Luymes

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION and ORDER

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Marina Luymes

Charles Gibson, Representative of the Appellant

For the Respondent:

Sadia Ashraf, Agent for the Registrar

Heard by Teleconference:

June 4, 2024

OVERVIEW

1Marina Luymes (the “appellant”) appeals the impoundment of her 2010 Jeep Patriot on May 8, 2024, for 90 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. As this is the second impoundment in two years, the applicant is barred from appealing on the ground of exceptional hardship, (s. 50.2(3)(d)). The appellant appeals on the ground 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)).

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?

RESULT

5I find that the appellant has not 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 for impoundment. The impoundment is confirmed.

ANALYSIS

6Under s. 55.1 of the Act, a police officer is required to impound a motor vehicle if the officer is satisfied that it was being driven by a person whose licence was under suspension for certain driving-related Criminal Code convictions.

7The respondent submitted evidence that at the time of the impoundment the vehicle was being driven by Charles Gibson (the “driver”), friend of the appellant., whose licence was under suspension for a prescribed Criminal Code offence pursuant to sections 41 and 42 of the Act.

8This is a second impoundment for the appellant. The driver was driving the same vehicle on September 10, 2022 when he was apprehended by police and the vehicle was impounded for 45 days. As this is a second occurrence in a two-year period, the impoundment of May 8, 2024 results in a 90-day impound period pursuant to s. 55.1(3)2 of the Act.

Due Diligence

9I find that, under the circumstances, the appellant did not exercise due diligence in attempting to determine if the driver’s licence was not then under suspension.

10The test to meet in the s. 50.2(3)(c) due diligence ground, is whether the appellant took reasonable care to determine if the driver’s licence was valid and not under suspension.

Standard for due diligence

11The Act 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.

12In considering the extent of those actions, the Supreme Court of Canada, in R. v. Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] 2 S.C.R 1299 (“R. v. Sault Ste. Marie”), describes due diligence as taking all reasonable care and the actions a reasonable person would have taken in the same or similar circumstances.

13The 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.

14To prove due diligence, the appellant must establish that she took reasonable care and undertook actions to determine that the 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.

Under the circumstances, the appellant did not take reasonable care to determine the validity of the driver’s licence

15The appellant testified that she was aware the driver’s licence had previously been suspended because it resulted in her vehicle being impounded September 10, 2022. She testified that her brother helped her pay the impoundment fees at that time, approximately $4,000.00.

16The appellant testified that the driver attended court early in January 2023 in relation to the previous impoundment. In the months following that court appearance, the appellant asked the driver if his licence was reinstated. The driver, who also represented the appellant in this proceeding, said he had paid fines and his licence was reinstated. This was the last occasion the appellant inquired about the driver’s licence status.

17The appellant testified that with the belief that driver had his licence back, she resumed allowing him to use her vehicle for work once per week on average.

18The appellant testified that the driver lives in the same building, in a basement apartment, and he helps her almost daily with household tasks. He accompanies her to medical appointments and trips she makes to get household supplies. The appellant has known the driver for over 30 years.

19The appellant testified that she manages her own finances, including online financial transactions. Her sole income is from ODSP. The appellant drives nearly every day for medical appointments and getting household needs such as groceries and pharmaceuticals.

20The driver testified that he deceived the appellant by not telling her the truth about his suspended licence. He testified that he lied to appellant about his licence being reinstated, that she trusted him and had complete faith in what he told her.

21The driver testified that the appellant lacks the instinct and resourcefulness to make her own inquiries about the reasons why her vehicle was impounded, what the consequences of an impoundment are, and what steps she should take to respond. For example, he stated that the appellant does not have the technical ability to search the MTO website to check the driver’s licence status. The driver testified that the appellant seeks his advice on any mail sent to her address from the MTO, that he keeps these documents organized for her in a binder, and she probably does not understand the complexities of them.

22The driver submits that the appellant should not have to suffer for the fact that he deliberately misled her and considering the high level of trust she put in him, she took reasonable steps and exercised due diligence in attempting to confirm that the driver’s licence was not under suspension.

23The respondent submits that the vehicle was lawfully impounded for 90 days and since the appellant had already suffered a previous impoundment caused by driver’s suspended licence, the appellant did not take appropriate steps to confirm that his licence was reinstated. For example, she did not ask to see the licence card or a licence abstract or inquire of MTO or Service Ontario about his licence. The respondent submits that, having experienced a previous impoundment with the same driver, the appellant failed to take reasonable steps to prevent a second occurrence. The respondent seeks confirmation of the impoundment.

24I find the appellant’s knowledge of the first impoundment raises the level of care and attention she would reasonably be expected to give to determining if the driver had a valid licence. Considering the degree to which she relies on her vehicle and the despair she is experiencing from this impoundment she was undoubtedly distressed and disappointed by the first impoundment also. The experience of the first impoundment should have compelled her to give more attention and take actions to ensure the driver had a valid licence.

25I find a reasonable person in these circumstances would be more vigilant in preventing a reoccurrence despite the bonds of friendship they might share with the driver responsible.

26The driver claims that the appellant is unsophisticated and does not have the technical savvy to investigate someone’s licence status, but his claim is inconsistent with the appellant’s oral evidence.

27I find the appellant is capable and demonstrates an ability to inform herself about the circumstances and challenges she encounters in life. The appellant manages her own finances, including online electronic transactions, drives almost daily for her health appointments and household needs, and managed to buy her vehicle and pay for its expenses all on an ODSP income.

28The driver testified that he helped organize the mail from MTO the appellant received in relation to the first impoundment, such as the Notice to Registrar and the Notice of Impoundment and Release. These documents explain the reasons why an impoundment occurred, spell out the consequences if there is a second impoundment, and how to get further information if the vehicle owner needs it. Given her concerns with losing her vehicle, it is simply not credible to suggest the appellant is incapable of informing herself about these matters.

29The appellant was informed by a previous impoundment, was capable of making inquiries to understand the consequences of continuing to let the driver use her vehicle, and had information at her fingertips to assist her in that endeavour.

30I find, under the circumstances, that the appellant does not meet her burden in proving that she exercised due diligence to determine the validity of the driver’s licence. I find that the appellant did not take reasonable care and the steps that a reasonable person in these circumstances would have to determine that the driver’s licence was not under suspension.

CONCLUSION

31I find the appellant did not exercise due diligence in attempting to determine if the driver’s licence was valid and not then under suspension at the time the vehicle was detained, in relation to s. 50.2(3)(c) of the Act.

ORDER

32Pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the vehicle.

Bruce Stanton

Adjudicator