Preventing tickets...

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Information for individuals and businesses who lend out their vehicles...

Owners may be able to protect themselves from tickets incurred by other drivers by documenting and proving they exercised "reasonable care and diligence" (or simply "due diligence") (under section 83.1(3)(b) of the Motor Vehicle Act) in lending out their vehicle to a driver. For background, please read our press release first. This defence was successfully used in the December 1997 R. v. Columbia Dodge 1967 Ltd. trial.

SENSE has created a form ("Record of Owner Responsibility - Automated Tickets" web version, Adobe PDF version) that you can download. There is absolutely no guarantee that these procedures will work in all situations!

For owners who lend their vehicles to drivers who reside outside of BC, the "due diligence" defence may be the only way to protect yourself as you cannot nominate drivers outside of BC. Owners who allow friends, relatives, or employees to regularly use their vehicles could benefit too by protecting themselves from tickets. When an owner has successfully defended a ticket using section 83.1(3)(b), the Crown has not been pursuing charges against the indicated driver.

While these procedures may seen onerous to some, we expect the government will add penalty points to photo radar and red light tickets in the future. This will result in a significant increase in the cost of tickets to an owner. The current range of fines for speeding tickets is $115 to $430 (red light tickets are $144) -- penalty points would add an average $135 for a total $250 to $565 for one ticket. A history of due diligence practices will help you fight these tickets.

A note for employers: it would appear that the Employment Standards Act (ESA) prevents an employer from deducting from employee wages any amounts not specifically provided for under the ESA. It would also appear an agreement about traffic tickets between the employer and employee would not override the ESA, and therefore have no effect. Thus, defending a ticket under "due diligence" may be the only option.

The form is self-explanatory, but you must be able to satisfy the court that you acted responsibly and genuinely believed that the driver would act responsibly. This form is not a replacement for responsible behaviour, only a method to document it. Half-hearted attempts will likely fail. As this is not an officially prescribed process or form, we want to hear from you if this procedure does or does not work. Either way, please e-mail us if you end up defending a ticket using this form.

The form will print best if you use the Adobe PDF version. If the file won't download, try holding your right mouse button and selecting "save..." The latest version of the form is "99.0". Ensure that the final signed form is on ONE page, or that pages are securely attached together and each page is initialed and dated.

SENSE believes that identification and charging of the driver should be the responsibility of the police, not the owner, and that responsible owners should not be liable for the illegal actions of another driver.

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Proactive measures...

Here are some key points (from case law) which should be covered when lending the vehicle -- adopt as many as possible to ensure the safety and compliance of the driver. Not all points will be applicable in all situations.

• Mandatory:
• The owner must be satisfied that the driver will responsibly operate the vehicle and not break the law.
• The owner must demonstrate to the justice that the owner made a "good faith" attempt to ensure compliance with the law.
• The driver must have a good history of accidents, tickets, penalty points, warnings, etc.
• A written policy forbidding speeding and red light running.
• A written policy which reflects the seriousness of the offence of speeding and red light running.
• The driver is aware that there are consequences for bad behaviour -- typically a progressive structure: warning, written reprimand, loss of privilege/employment.
• Drivers entrusted with a vehicle are forbidden from allowing anyone else to operate the vehicle.
• The owner must establish that at the time of the offence, the driver was the operator of the vehicle.
• Additional:
• Driving history:
• A Driver's Abstract ("driving record", available free from Motor Vehicles) has been obtained and viewed, preferably periodically, but generally at the time of hiring/granting of priviledge.
• The owner has extensively observed the driving habits of the driver.
• The owner has known the driver for a long period of time.
• Regular checks are made for a valid driver's licence, good driving record, tickets, warnings, etc.
• The driver has many years driving experience.
• Any other indications of driver's ability to responsibly operate a vehicle.
• Training:
• The driver has taken additional driving/safety training.
• The owner conducted driver training/safety workshops.
• Drivers who drive extensively should take additional training (e.g. Pacific Traffic Education Centre).
• Policies:
• For owners of fleets, a garage/vehicle management policy is in effect. For example, use the ICBC Fleet Safety Manual.
• Written policies forbidding speeding and red light running and reflecting the seriousness of the offences of speeding and red light running, policies should also cover other areas of safe vehicle operation.
• Drivers are required to periodically review, acknowledge, and sign the written policy.
• Copies of the policies are provided to the drivers periodically.
• Post the policies in the workplace.
• Detailed logs of who was operating the vehicle at a particular time are maintained.
• Schedules do not require the drivers to speed in order to meet them.
• Post "road safety" signs in the workplace.
• Enforcement:
• Monetary penalties are passed on to the driver if possible.
• Consistency has been applied to the application of the policies to all drivers.
• Complaints about poor driving are followed-up and disciplinary action taken when required.
• Previous drivers have been disciplined for bad behaviour.

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Disputing a ticket...

As an owner, if you receive a ticket, you could file a dispute and then argue "due diligence" (that you met your responsibility under section 83.1(3)(b) of the Motor Vehicle Act) and that the ticket should be dismissed. You will need to bring the original form and two photocopies to court (one each for the Justice and Crown), along with originals and two copies of any other supporting documentation.

In court you could detail, to the justice, each point on the form and what persuaded you that the driver would operate the vehicle responsibly. Proof of acting with due diligence is based upon a "balance of probabilities," not the higher "proof beyond a reasonable doubt." In addition, you should detail all applicable points (from the "proactive measures" table above or others) which support the position that you acted responsibly. You would need to be able to state with absolute confidence that at the time of the offence, the indicated driver was operating the vehicle.

The leading Supreme Court of Canada case on reasonable care is R. v. Sault Ste. Marie (City), [1978] 2 S.C.R. 1299, 3 C.R. (3d) 30, 21 N.R. 295, 7 C.E.L.R. 53, 40 C.C.C. (2d) 353, 85 D.L.R. (3d) 161. A passage in the decision states ([1978] 2 S.C.R. 1299 at 1331):

"The due diligence which must be established is that of the accused [the employer] alone. Where an employer is charged in respect of an act committed by an employee acting in the course of employment, the question will be whether the act took place without the accused's direction or approval, thus negating willful involvement of the accused, and whether the accused exercised all reasonable care by establishing a proper system to prevent commission of the offence and by taking reasonable steps to ensure the effective operation of the system."

Note: the standards for employer-employee will be higher than friend-friend or relative-relative due largely to the familiarity and control that individuals will have with each others driving habits. This is stated in R. v. Tilden Car Rental Inc. at page 10:

"... it seems to me that a relevant element of due diligence on behalf of an individual owner who lends his or her vehicle to another, particularly a child of the owner, would be knowledge of that person's driving history and attitude. A poor history would negate due diligence; an excellent record coupled with the exercisable power a parent/personal owner has over the vehicle and family and friends might well establish due diligence."

We are aware of the following BC Justice of the Peace (lower court) decisions which have dealt with employer's standard of reasonable care. Our suggestions arise out of these decisions, but the decisions might not necessarily be upheld by higher courts.

• R. v. Columbia Dodge 1967 Ltd. (No. 2) (December 18, 1997), unreported - oral judgment, (B.C. Provincial Court - Traffic Division, Proctor JP).
• originals available for purchase from: Omni-Script Services Ltd., 2016 - 7445 - 132 Street, Surrey, BC, Phone: 604-591-6677, Fax: 604-591-1567.
• R. v. Columbia Dodge 1967 Ltd. (No. 1) (January 22, 1997), unreported - proceedings at trial, (B.C. Provincial Court - Traffic Division, Morrison JP).
• originals available for purchase from: Omni-Script Services Ltd., 2016 - 7445 - 132 Street, Surrey, BC, Phone: 604-591-6677, Fax: 604-591-1567.
• R. v. BC Transit [judgment only posted] (August 5, 1997), unreported - proceedings at trial, (B.C. Provincial Court - Traffic Division, Victoria Registry No. SA00451279, Rivett JP), (38 pages).
• originals available for purchase from: J.C. WordAssist Ltd., 111 Skinner Street, Nanaimo, BC V9R 5E8, Phone: 250-754-7822, Victoria Phone: 250-477-8080.
• R. v. Best Buy Car and Truck Rentals (n/a)
• R. v. Black Top Cabs Ltd. (January 22, 1998), unreported - written judgment, (B.C. Provincial Court - Traffic Division, Vancouver Registry No. SA01334391, Makhdoom JP), (11 pages).

There is detailed information on licence plate covers on the page.

Rev: 1999.07.20