Court Information and Parties

CITATION: Husain v. Licence Appeal Tribunal, 2022 ONSC 1816

DIVISIONAL COURT FILE NO.: 332/21

DATE: 20220323

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Syed Husain, Applicant

AND:

Licence appeal tribunal and registrar of motor vehicles, Respondents

BEFORE: Swinton, Baltman and Nishikawa JJ.

COUNSEL: Syed Husain, self-represented

Matthew Peachey, for the Respondent Licence Appeal Tribunal

Andi Jin, for the Respondent Registrar of Motor Vehicles

HEARD at Toronto by videoconference: March 22, 2022

ENDORSEMENT

Baltman J.

INTRODUCTION

[1] This is a judicial review of four decisions of the License Appeal Tribunal dated July 9, 2020; March 22, 2021; January 14, 2021 and March 23, 2021 denying the Applicant’s appeal of his two vehicle impoundments. The Applicant submits that the Decisions were unreasonable and procedurally unfair.

BACKGROUND

[2] In December 2019, the Applicant was convicted of impaired driving and failure to provide a breath sample. As a result of his conviction, the Applicant’s driver’s license was automatically suspended under s. 4(1) of the Highway Traffic Act (the “HTA”).

[3] The Applicant continued to drive his vehicle while his license was under suspension, which led to his vehicle being impounded twice under s. 55.1 of the HTA, once in April 2020 and once in September 2020.

[4] The Applicant appealed both impoundments to the Tribunal under s. 50.2 of the HTA and both appeals were dismissed. He requested the Tribunal reconsider both of its dismissals and both reconsideration requests were denied. He now challenges all four of the Tribunal’s decisions (i.e. two appeals, two reconsiderations).

THE DECISIONS

Decision dated July 9, 2020

[5] The Applicant’s vehicle was first impounded on April 11, 2020. He appealed his impoundment on the basis of s. 50.2(3)(c) and (d) of the HTA, submitting that he exercised due diligence in attempting to determine that the license of the driver was not under suspension, and that the impoundment will result in exceptional hardship.

[6] In its decision dated July 9, 2020, the LAT confirmed the impoundment. The LAT found the Applicant had not exercised due diligence to ensure his license was not under suspension at the time of impoundment. The Applicant’s driver’s license had been suspended in February 2020 because of convictions for impaired driving and failure to provide breath and blood samples in December 2019. The Applicant submitted that he knew his license had been suspended, but was told by his lawyer that once an appeal was filed, his license would be reinstated

[7] The LAT found that the Applicant did not act responsibly because he did not seek confirmation that the appeal had been filed. When he called a court reporter she advised him “not to make a move” until he heard from his counsel that an appeal had been filed, advice he ignored.

[8] The LAT also found that the Applicant failed to establish that the impoundment would result in exceptional hardship. He submitted that he had asthma and that without a license he would be forced to travel by bus where it was hard to physically distance himself.

Reconsideration Decision March 22, 2021

[9] On January 30, 2021, six months after his appeal had been dismissed, the Applicant requested a reconsideration of that dismissal on the basis that the LAT made an error of law but for which it would have reached a different result, and that there was new evidence that could not have been obtained previously.

[10] The LAT denied the request for reconsideration, noting that Tribunal Rules require that requests for reconsideration be made within 21 days and therefore the Applicant’s request for reconsideration was more than five months late. The Applicant’s request for an extension of time because he “didn’t know” about the timeline was denied on the basis that a “professed lack of knowledge” of Tribunal rules was not a sufficient basis to extend the time. The Tribunal further held that in any event the Applicant’s request lacked merit and he had already recovered his vehicle.

Extension of Time Decision dated January 14, 2021

[11] The Applicant’s car was impounded again on September 12, 2020. On November 4, 2020, he secured a stay of his driving prohibition pursuant to the Criminal Code pending appeal of his convictions before the Superior Court. On November 25, 2020, he filed an appeal of the impoundment, and, because the appeal was outside the 15-day timeline, he also filed a motion for an extension of time to appeal.

[12] On January 14, 2021, the Tribunal denied an extension of time, finding he did not seriously consider an appeal until after securing a stay of his driving prohibition, i.e. after the appeal period had expired. Moreover, the Applicant did not file the appeal until 21 days after securing the stay. Finally, the Tribunal determined that the proposed appeal lacked merit, as the stay order respecting a driving prohibition did not have retroactive effect.

Reconsideration Decision dated March 23, 2021

[13] On February 4, 2021, the Applicant sought a reconsideration of the previous denial of an extension of time to appeal. He argued that he had in fact submitted “an initial impoundment appeal within the time restraints”. On March 23, 2021, the Tribunal denied the reconsideration request, noting that back in September 2020 the Applicant had received emails from Tribunal staff that made it clear he had not in fact submitted an appeal in time.

STANDARD OF REVIEW

[14] With respect to allegations regarding procedural fairness, there is no standard of review; the Court must simply determine whether the proceedings below were fair. As for the merits of the decisions, the standard of review is reasonableness.

ISSUES AND ANALYSIS

Issue #1: Were the Decisions procedurally unfair?

[15] The Applicant alleges that the proceedings below were unfair because the Tribunal misled him in respect of filing deadlines. However, the Applicant has not particularized these allegations or filed any corroborating evidence.

[16] Even if the allegations are true, they have no bearing on procedural fairness because, on the matters in which the Applicant failed to meet his filing deadline, the Tribunal ultimately heard and considered his positions on their merits. There was no denial of procedural fairness.

Issue #2: Were the Decisions unreasonable?

[17] The Applicant’s primary submission in his factum is that the LAT did not adequately consider and apply the evidence of his medical condition when considering whether he would have suffered exceptional hardship without his vehicle, particularly given his fear of taking public transit after he lost four family members to the COVID virus.

[18] I disagree. The Tribunal acknowledged that taking public transit may pose a heightened risk but reasonably declined to recognize that all vehicle owners with asthma would, by reason of impoundment, be forced to use public transit. It was also reasonable for the Tribunal to decline to recognize a “class” of persons who would be exempt from impoundment during the COVID pandemic, and to determine this ground of appeal on a case-by-case basis. The Tribunal noted the facts of the Applicant’s asthma but properly distinguished Hall. Finally, it was reasonable for the Tribunal to find that the Applicant failed to demonstrate exceptional hardship in his specific circumstances.

[19] At the hearing of this application, the Applicant argued that the Tribunal unreasonably upheld the impoundment of his vehicle in September 2020 because the decision of Nakatsuru J. in April 2021 overturned his conviction. He also relies on the fact that the Superior Court ordered a stay of his driving prohibition under the Criminal Code in November, 2020. However, the stay was issued after his vehicle was impounded and the Tribunal correctly determined that the stay was not retroactive. Indeed, the opening proviso of the Stay Order makes that clear, stating that the “driving prohibition shall be stayed in this matter once the Appellant has entered into an undertaking” [emphasis added]. Accordingly, the Tribunal reasonably concluded that the Applicant had been driving his vehicle while his license was suspended in September 2020, and there was no merit to his second appeal.

CONCLUSION

[20] The Application is dismissed. The Applicant shall pay costs of $650, inclusive of HST, to the Registrar. The Tribunal does not seek costs.

Baltman J.

I agree _______________________________

Swinton J.

I agree _______________________________

Nishikawa J.

Date: March 23, 2022