Licence Appeal Tribunal File Number: 16619/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:
Yesenia Suarez
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION and ORDER
VICE-CHAIR: Robert Maich
APPEARANCES:
For the Appellant: Yesenia Suarez
For the Respondent: Sadia Ashraf, Agent for the Registrar
Heard by Teleconference: January 16, 2025
OVERVIEW
1Yesenia Suarez (the “appellant”) appeals the impoundment of a 2013 Ford SPE motor vehicle on December 20, 2024, for 45 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, may appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”) that the Registrar release the vehicle.
3This hearing commenced on January 16, 2025, with the appellant and respondent in attendance.
4For the Tribunal to order the vehicle to be 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. The appellant appeals on the ground that she exercised due diligence.
ISSUE
[5] The issue in dispute is: i. Whether the appellant exercised due diligence in accordance with section 50.2(3)(c) of the Act?
RESULT
6I find the appellant has not established that she exercised due diligence in accordance with section 50.2(3)(c) of the Act. I confirm the impoundment of the motor vehicle.
ANALYSIS
Circumstances leading to the impoundment
7Under s. 55.1 of the Act, 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.
[8] The respondent presented uncontradicted evidence which established that: i. i. the appellant is the registered owner of the motor vehicle, a 2013 Ford SPE (the "vehicle"); ii. ii. on December 20, 2024, the police discovered the vehicle being driven by the appellant's friend, Razak Mohamed (the "Driver"); and iii. iii. the licence of the Driver was under suspension for a prescribed Criminal Code conviction at the time the police detained the vehicle for impoundment.
Whether the appellant exercised due diligence in accordance with the Act
9I find that the appellant did not exercise 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 under suspension.
10This ground of appeal requires the vehicle owner to show on a balance of probabilities that she took reasonable steps to determine that the driver’s licence was not suspended. In this context, due diligence requires more than making assumptions as to the facts. It requires specific steps to be taken by the owner to confirm that the licence was not suspended. The specific steps that amount to due diligence depend on the circumstances of each case. Reasonable care does not mean perfection. The Tribunal has previously held 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 can depend on the nature of the relationship between the owner and the driver.
11The appellant testified she has known the Driver for approximately four years. Further she stated she was aware that the Driver had previously been charged and convicted for impaired driving or exceeding blood alcohol of .08 contrary to the Criminal Code.
12The appellant testified she was previously advised by the Driver that he had completed his probation for the aforementioned criminal offence and restored his driver’s licence. The appellant further stated she had incidentally viewed the driver’s licence of the Driver a couple of months prior to the impoundment; she admits she did not examine the driver’s licence closely to determine whether it was valid.
13The appellant testified that she had good reason to accept the Driver’s word that he had restored his licence as he had not lied to her on any important matter over the four years she had known him. I find the appellant trusted and believed the Driver at his word that he restored his driver’s licence.
14Upon cross examination, the appellant revealed that she did not examine the driver’s licence of the Driver to determine its validity, nor had she asked him to produce it for her to physically examine. Further, the appellant admitted that she did not complete a validity check of his driver’s licence as she did not know an online tool was available for verification until after the impoundment had occurred.
15I find the appellant was aware the Driver had been convicted of an offence that resulted in the suspension of his driver’s licence. Although the appellant believed the Driver had completed the steps to restore his driver’s licence, the appellant took no independent steps to determine that his licence was not suspended.
16In the absence of any reasonable steps to independently confirm the Driver’s statement, that he now possessed a valid driver’s licence, the appellant cannot be found to have exercised due diligence by merely taking the word of the Driver.
17I find the appellant did not ask the Driver to produce a valid driver’s licence, with the full knowledge that his driver’s licence had been previously suspended, nor did the appellant make any inquiries of the MTO or the Registrar of Motor Vehicles to determine if the Driver possessed a valid driver’s licence.
18As noted above, this ground of appeal requires the appellant to demonstrate the exercise of due diligence by showing that she took reasonable steps to determine that the driver’s licence of the Driver was not suspended. In my view, due diligence required the appellant to do more than she did, and I find that she did not take reasonable steps. The appellant has therefore not met her burden.
19I find that the appellant did not exercise 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 under suspension.
CONCLUSION
20I find the appellant did not meet her burden on a balance of probabilities pursuant to s. 50.2(3)(c) of the Act, meaning the owner did not exercise 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 under suspension.
ORDER
21Pursuant to section 50.2(5) of the Act, I confirm the impoundment of the subject vehicle.
Robert Maich Vice-Chair
Released: January 31, 2025