Licence Appeal Tribunal File Number: 16634/MVIA
In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.
Between:
Deborah Tucker
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
VICE-CHAIR:
Jeremy A. Roberts
APPEARANCES:
For the Appellant:
Deborah Tucker, Self-represented Brian Tucker, Husband
For the Respondent:
Sadia Ashraf, Representative
HEARD: January 23, 2025
OVERVIEW
1The appellant, Deborah Tucker, appeals from the 45-day impoundment of a 2020 Ford Escape motor vehicle (the "vehicle") under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the "Act"). The appellant's motor vehicle was impounded on January 11, 2025.
2At the time of the impoundment, the appellant's son, Ryan, was found by police in the driver's seat of the vehicle during a period in which his driving privileges were suspended as a result of a Criminal Code conviction. The appellant had given the keys to the vehicle to her son's girlfriend, Melissa, prior to the vehicle's impoundment. The appellant testified that Melissa gave Ryan the keys to the car in order to warm the car up in the parking lot, which is what Ryan was doing at the time of the impoundment. Police were called to the scene not as a result of a traffic offence but because of an altercation, and they impounded the vehicle upon identifying Ryan's suspended licence.
3The appellant appeals on the grounds that the owner of the vehicle exercised due diligence in attempting to determine that the driver's licence of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension.
ISSUES
4The issues in dispute are:
i. Did the appellant 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?
RESULT
5I find that that the appellant has satisfied the Tribunal that she exercised proper due diligence in this matter. I therefore order the Registrar to release the vehicle.
ANALYSIS
The appellant exercised proper due diligence
6I find that the appellant exercised proper due diligence in this matter because she took reasonable steps to ensure that the driver's licence of the individual she gave her keys to who was driving at the time of the impoundment was not under suspension.
7Section 50.2 of the Act sets out the grounds on which the owner of a motor vehicle may appeal its impoundment. One of the grounds is s. 50.2(3)(c): "that 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 under suspension."
8The Act does not provide a definition of due diligence. However, previous rulings of the Tribunal provide guidance as to what constitutes due diligence for these purposes. For example, in Horst v. Registrar of Motor Vehicles, 2022 CanLII 106454 (ONT 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 licenced driver.
9Equally important in this case is the legal definition of the word "driver" as it relates to the test for due diligence. The Act provides two definitions for the word "driver" in s. 1(1) and s. 48(1). In paragraph 40 of R. v. McColman, 2023 SCC 8, the Supreme Court of Canada found that "under a harmonious reading of the two definitions of "driver", for the purpose of s. 48(1), "driver refers to a person who is driving, or has care or control of, a motor vehicle on a highway. A person who has care or control of a motor vehicle but who is no longer on a highway would not be a "driver" under the Highway Traffic Act, 1990."
10The appellant argued that in this scenario, she undertook all reasonable due diligence to ensure that at the time of this impoundment, the vehicle was being operated by someone with a valid licence. She testified that she and her husband knew that their son's licence was suspended and had clearly communicated to him that he was not to operate the vehicle. In this particular instance, the vehicle was lent to her son's girlfriend Melissa, who was under strict instructions not to let Ryan operate the vehicle. The appellant testified that she inspected both Melissa's driver's licence and the Ministry of Transportation online Driver's Licence Check, prior to letting her take the vehicle in order to confirm that she had a valid licence. Furthermore, the appellant testified that she observed the car depart her laneway with Melissa in the driver's seat and Ryan in the passenger seat. These collective actions, the appellant argues, constitute reasonable due diligence because they forbade their son from driving and gave the vehicle to Melissa, who they verified had a valid licence.
11The respondent argued that the appellant knew about their son's suspended licence and yet still put him in a situation where he could reasonably be expected to operate the vehicle. It argued that the steps the appellant took to prevent Ryan from operating the vehicle were insufficient and do not demonstrate reasonable due diligence in ensuring that the operator of the vehicle at the time of impoundment had a valid licence.
12In this circumstance, I agree with the appellant and find that she exercised reasonable due diligence in ensuring that the driver of the vehicle at the time it was impounded had a valid driver's licence. Firstly, based on the facts of this case as presented, I reject the conclusion that Ryan was the "driver" of the vehicle at the time of the impoundment. Based on the finding in McColman, Ryan was not driving the vehicle on a highway, nor did he have care or control of the vehicle while on a highway. The testimony before us suggests that Ryan was found in the driver's seat of the vehicle in a parking lot. I heard testimony from the appellant that she watched Melissa depart her residence in the driver's seat. Based on this and any lack of evidence to the contrary, I infer that it was Melissa who drove the vehicle to the parking lot where it was later impounded. Given this, I find that the appellant took reasonable steps to ensure that Melissa (the driver) had a valid driver's licence at the time of the impoundment. She reviewed her driver's licence and its status on the Ministry of Transportation online portal. Beyond this, she gave explicit instructions to Melissa that only she was to drive the vehicle. I find that this rises to the level of reasonable due diligence under the Act.
ORDER
13I order the following:
i. Pursuant to s. 50.2(5) of the Act, I order the Registrar to release the appellant's motor vehicle.
Released: February 6, 2025
__________________________
Jeremy A. Roberts
Vice-Chair