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:
Heather Heath
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Jan Dymond, Vice-Chair
APPEARANCES:
For the Appellant: Heather M. Heath, Self-Represented
For the Respondent: Sadia Ashraf, Agent
Heard by teleconference: January 7, 2025
OVERVIEW
1Heather M. Heath (the "appellant") appeals the 45-day impoundment of her 2022 Dodge RAM under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the "Act"). The vehicle was impounded on December 15, 2024. At the time of the impoundment, C.M. ("the driver") was driving the vehicle while his licence was under suspension resulting from a prescribed criminal conviction.
2Section 50.2 of the Act provides that the owner of an impounded vehicle may appeal the impoundment to the Tribunal. That section limits the grounds upon which the Tribunal can order the release of the vehicle.
3The appellant appealed the impoundment to the Tribunal on December 16, 2024.
ISSUES
4The issues to be determined are:
Whether the appellant exercised due diligence in attempting to determine that the driver's licence of the driver of the motor vehicle at the time it was impounded was not then under suspension under s. 50.2(3)(c) of the Act, and
Whether the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the Act.
RESULT
5I find that the appellant exercised due diligence and order release of the vehicle.
6Having found that the appellant meets the test under s.50.2(3)(c) of the Act, I have not considered whether the impoundment will result in exceptional hardship.
ANALYSIS
7The Registrar of Motor Vehicles ("the Registrar") presented evidence that the vehicle was stopped by police while it was being driven by C.M. whose licence was suspended due to a prescribed Criminal Code conviction. I am satisfied that the vehicle was validly impounded. The Notice to Registrar indicates that C.M. did not present a driver's licence at the time the vehicle was stopped by police.
Has the appellant established that she exercised due diligence in attempting to determine that C.M.'s driver's licence was not under suspension?
8I find that the appellant has established that she exercised due diligence in attempting to determine that the driver's licence of the driver at the time it was impounded was not under suspension in accordance with s. 50.2(3)(c).
9To prove due diligence, the appellant must establish that she took reasonable care and undertook actions to determine that the driver was properly licensed.
10The appellant testifies that on or about mid-November 2024, C.M. asked to borrow the appellant's vehicle and before agreeing, she asked the driver whether he had a licence and asked to see his driver's licence. She testifies that C.M. told her he had a licence and produced a driver's licence that appeared to be in order except for an outdated address. She testifies that the driver told her that he would be correcting the address.
11The appellant testifies that she did not take any steps to further confirm the validity of the licence. The appellant also testified that she was aware that C.M. regularly made use of his mother's vehicle which further supported her confidence that his driver's licence was valid.
12The event that led to the impoundment occurred approximately four weeks later while the appellant was at work. The driver asked to borrow the vehicle and attended the appellant's place of work to pick up the keys. The appellant testifies that she asked the driver whether he had his licence with him and that he confirmed that he did. She did not ask to see the licence on that occasion.
13The respondent submits that the appellant did not exercise due diligence because the appellant did not ask to see the driver's licence of the driver on the day of the event that led to the impoundment.
14The respondent further submits that the appellant failed to exercise due diligence the first time C.M. asked to borrow the vehicle in mid-November because the appellant did not notice that C.M.'s driver's licence had expired in 2016 and because the appellant did not check on the status of the driver's licence through Service Ontario or the Ministry of Transportation website or phone line.
15The appellant testifies that she was unaware of the Service Ontario/MTO services at the time and that, having seen the driver's licence in mid-November, she had no reason to believe she needed to ask again four weeks later. She submits that she does not recall the expiry date and assumes that she must have misread the expiry date as 2026.
16In 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.
17Whether the ground of due diligence has been established is fact specific. Whether efforts are considered to be reasonable depend on the circumstances.
18Examples 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.
19In the circumstances described, I find that the appellant took reasonable care and actions by asking C.M. whether he had a driver's licence and asking to see the licence the first time he asked to borrow the vehicle. The likelihood that C.M. had a valid driver's licence was reinforced by the appellant's knowledge that C.M. used his mother's vehicle regularly. The appellant does not recall noticing anything out of order with respect to the expiry date and the driver did not present his driver's licence to the police. We do not know whether the 2016 date appeared on the licence presented to the appellant. I also find that it reasonable that the appellant did not ask to see C.M.'s driver's licence on December 15, 2024, having seen the licence four weeks earlier.
20Given the context above, I conclude that a reasonable person would fairly assume that the driver had a valid driver's licence. As such, I find that the appellant has proven on a balance of probabilities that she exercised due diligence in determining that the driver's licence of the driver of the motor vehicle at the time it was impounded was not then under suspension.
21As I have found that the appellant has exercised due diligence, it is not necessary to consider the ground of exceptional hardship.
ORDER
22Pursuant to s. 50.2(5) of the Act, I order the Registrar to release the appellant's motor vehicle.
Jan Dymond
Vice-Chair
Released: January 9, 2025