Bi.R. and Ba.R. v. Registrar of Motor Vehicles, 2018 CanLII 126554

Licence Appeal Tribunal

Date: 2018-11-20

Appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to Section 55.1(3) of the Act

Between:

Bi.R. and Ba.R.

Appellants

-and-

Registrar of Motor Vehicles

Respondent

DECISION

Panel: Dawn Kershaw

Appearances:

For the Appellant: Ricardo Rowe, Paralegal

For the Respondent: Sanjay Kapur, Agent

Place and Date of Hearing: In Person September 19, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW:

1An in-person hearing was held to consider the appellants’ appeal of the 45-day impoundment of a 2014 GMC Sierra (the “vehicle”). The vehicle, owned by both appellants, was impounded on July 18, 2018 and was due to be released on September 1, 2018.

ISSUES:

2As set out in the Case Conference Order, the issues to be determined were identified as whether:

a. the vehicle was stolen at the time it was impounded;

b. the driver of the vehicle at the time it was impounded had a valid licence;

c. the appellant exercised due diligence in attempting to determine that the licence of the driver was not under suspension; and

d. the impoundment will result in exceptional hardship.

3However, the parties’ evidence addressed only the identity of the driver and whether that driver had a suspended licence, as set out in paragraph 50.2(3)(b).

CONCLUSION:

4On the evidence before me at the hearing, I find that the licence of the driver of the vehicle at the time it was impounded was suspended. I therefore deny the appeal and confirm the impoundment order under section 50.2(3)(b) of the Highway Traffic Act, R.S.O., 1990, c. H.8 (“HTA”).

PRELIMINARY ISSUES:

Was the appellants’ attendance at the hearing required given the disputed identity of the driver?

5The appellants’ representative advised that he acted for both appellants, although he advised that one of them was not going to attend the hearing and the other was in the building but was not in the hearing room. One of the appellants, Bi.R. alleged that he was not driving the vehicle at the time the vehicle was impounded. The police officer said he was driving. The respondent issued a summons to have Bi.R. attend the hearing so the officer could identify him as the person he pulled over. However, the appellants’ lawyer did not want Bi.R. in the room until necessary, given the issue of identification.

6The respondent agreed that Bi.R. did not have to be in the room at the outset of the hearing, and the hearing commenced in his absence. Shortly after the hearing commenced, a person entered the room and sat at the back. Later, during the police officer’s evidence, the police officer identified this individual as Bi.R., who he said was driving the vehicle at the time of the impoundment.

Were the respondent’s documents delivered to the appellants late such that they should be excluded as evidence at the hearing?

7The appellants submitted that the respondent’s documents to be relied on at the hearing were not served on them five days before the hearing, in accordance with the requirement in section 23.3(b) of The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (“Rules”) because they were served after 6 p.m. on the Friday before the Wednesday hearing. They submitted that this did not comply with the Tribunal’s disclosure Rules requiring disclosure 5 days in advance of the hearing. They further submitted they did not have time to read the notes in advance of the hearing and their rights under section 24 of the Charter of Rights and Freedoms were violated, though they did not specify what rights.

8The respondent denied its submissions were late, with the only possible exception being the police officer’s handwritten notes. It advised that its documents were served on the appellants six days before the hearing. It conceded that the police officer’s notes were not included in that disclosure, but submitted that it delivered those to the appellants on the Friday.

9While the Rules state that disclosure must be made five days in advance of the hearing, the adjudicator ordered after the case conference that the parties’ disclosure was to be made by September 6, 2018 and also that the hearing would take place on September 12, 2018. In effect, the adjudicator ordered disclosure six days prior to the hearing. Given that the eventual hearing date was a week later than scheduled, namely September 19, 2018, disclosure six days before the hearing in effect was ordered for September 13, 2018.

10The officer’s notes clearly were not sent six days in advance of the hearing because they were delivered to the appellants’ representative one day late on September 14, 2018.

11I asked the appellants at the outset of the hearing if they wanted an adjournment or needed time to review the officer’s notes before the hearing of any evidence and they declined. As a result, I admitted the officer’s notes as evidence, and I vary the deadline for filing the police officer’s notes as I am permitted to do pursuant to Rule 3.1, given that any prejudice to the appellants could have been avoided by providing them with additional time to review the notes.

Should the police officer’s notes be excluded from the hearing because the respondent’s representative attempted to transcribe them?

12The appellants also took exception to the fact that the respondent’s representative tried to transcribe the police officer’s notes. The appellants submitted they did not know if the transcription was accurate or reflected what the representative wanted the notes to say. The appellants asked that their appeal be granted because the evidence was tainted. The respondent’s representative advised he was trying to be helpful and assist the appellants in reading the notes.

13I advised that I would not exclude the officer’s notes. I offered the appellants a chance to speak to the officer about what his notes said in advance of any evidence being heard, but they declined. I further advised the appellants that any attempted transcription by the respondent’s representative was not evidence that would be considered by the Tribunal in reaching its decision, and that the Tribunal would consider only the actual notes in evidence as well as any oral evidence that was given by the police officer at the hearing.

14There was no prejudice to the appellants that could not be cured by either a short delay or by an adjournment and/or by them speaking to the police officer so he could assist with any notes they could not read. They declined all of these options.

Alleged Improper Service of Summons & Resulting Credibility Issue

15The appellants further submitted that their appeal should be granted because they allege that the respondent tried to summons one of the appellants and stated that the summons to witness was served on someone named “Amy”, which the appellants deny. They submitted that this called into question the respondent’s credibility and because of that and its attempt to transcribe the police officer’s notes, the appeal should be granted.

16The respondent’s representative submitted that it included in its submissions an acknowledgment by “Amy” who accepted the summons to witness. He further submitted that he asked the appellants’ representative to ensure that the appellant was at the hearing because he assumed the representative and the appellant were in contact. In fact, the appellant that was summonsed did appear.

17I declined to grant the appeal based on this argument. Not only will the respondent’s credibility be tested during the evidentiary portion of the hearing, I can only grant the appeal based on the grounds set out in section 50.1(3) of the HTA.

LAW AND ANALYSIS:

18The owner of a vehicle that has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment only on the grounds set out in s. 50.2(3) of the HTA. Here, the appellants rely on paragraphs (a) and (b) of section 50.2(3), as set out in paragraph 2, above. If I find that any of the grounds of appeal have been satisfied, I may, pursuant to subsection 50.2(5) of the Act, order the Registrar to release the motor vehicle.

19The appellants’ case was based on the assertion that Bi.R., who had a suspended licence, was not driving the vehicle when it was impounded after the police officer stopped the vehicle on July 18, 2018. They assert that the car was being driven by J.R., Bi.R.’s cousin from Guyana who was an unlicensed driver and who took the vehicle without Bi.R.’s knowledge or permission.

20The Registrar submitted that Bi.R.’s licence was suspended on a prior occasion in 2016.

21The Registrar had the police officer who pulled the vehicle over testify. He testified that he pulled the vehicle over because he ran the plate and discovered that one of the owners of the vehicle had a suspended licence. Once the driver stopped the car, the officer testified he used his own car to box the other car in. He testified he approached the vehicle, and the driver was wearing an orange construction vest. He told the driver that one of the vehicle’s owners had a suspended licence. He asked the driver for his licence. The driver advised him that he did not have a licence. The officer testified that the driver said: “please, sir, I have a family”. The appellants’ representative objected to this evidence because this statement was not in the officer’s notes. The officer testified he remembered the driver saying this. The officer then asked the driver for the ownership, which he gave to the officer. He testified he still has the driver’s ownership and insurance documents.

22The driver then told the officer his brother owned the car, though the officer agreed this was not in his notes and it would have been better if it was. The officer testified he asked for the driver’s name and because it was long, he made a “live note” of it – in other words, he asked the driver to spell it for him and wrote it down at the vehicle. He testified that the driver had a good command of English although he spoke with an accent. He was able to spell his name for the officer and give him his birthdate, which was Bi.R’s name and birthdate.

23The officer went back to his car. He confirmed that Bi.R.’s licence was suspended. He did not have a photo licence, but the driver’s photo was on the MTO database, which the officer reviewed in his car. The officer testified he confirmed that the licence suspension was valid, and that the suspended driver was the driver he had pulled over, namely Bi.R. He testified that he looked at the photos of both Bi.R. and Ba.R., though this is also not in his notes. He admitted on cross-examination that at times he has encountered situations where people look similar, but he differentiates by asking for name, address and birthdate, which this driver had no trouble giving him.

24The officer denied having any difficulty identifying the driver. He said it was sunny and visibility was good. In addition, although the appellant had a shaved head, unlike the MTO photo, he was satisfied it was Bi.R. He testified he spoke to the driver for a total of about five minutes, though he said it could have been three.

25After reviewing the MTO database, the officer went back to the driver’s car and told him to wait because he would be serving him with some paperwork. The officer testified that the person in the driver’s seat was still the person he had identified as Bi.R.

26The officer returned to his car and completed the paperwork. He then pulled his car closer to the driver’s side of the other vehicle because he was blocking the driveway of the coffee shop. When he returned to the driver’s car with the paperwork, the driver was gone. The officer testified that the steering wheel had been locked with a device that required a small key. The officer assumed that the driver slipped out the passenger door because he did not exit the driver’s side. He confirmed on cross-examination that the police car was equipped with a video recorder, and video of this event was available but not produced. He testified he asked the Registrar if they wanted it and he did not receive a response. On re-examination, he testified that the driver’s face was not clearly visible in the video.

27Neither Bi.R. nor Ba.R. testified. Their only evidence was an affidavit from Bi.R.’s cousin, J.P., a resident of Guyana. He stated he was visiting from April 10 to August 13, 2018, and took his cousin’s vehicle without consent. He stated that when the police officer asked who he was, he told him he was Bi.R.

28He states in the affidavit that several days after this incident, Bi.R. found out what happened and asked him where he got the key. He told Bi.R. that he searched his house and found it. Because the truck was sitting there and they are family, he thought he could drive the truck because he can do so in his home country without a licence. He realized later this got his cousin in trouble, and it caused big problems in the family.

29The appellants’ case was based solely on the following premises:

a. Bi.R. was not driving the vehicle at the time it was impounded;

b. The police officer failed to properly identify who was driving the vehicle; and

c. The vehicle was being driven by an unlicensed driver.

30The evidence in this case persuades me on a balance of probabilities that Bi.R. was driving the vehicle while his licence was suspended. Several factors persuade me of this. First of all, when the officer pulled the car over, the driver was wearing an orange construction-type vest. It is unlikely that J.P., a visitor from Guyana, would have been wearing such a vest, and he was not available to be cross-examined with respect to this. It is more probable that it was Bi.R. who was on his way to work, and not J.P. who was visiting.

31Secondly, the officer testified that when he asked for the ownership, the driver produced it without hesitation. In fact, he still has the ownership and insurance documents. Again, it is unlikely that J.P. would be able to produce these so readily. It is more probable than not that the documents were easily produced because the driver was Bi.R.

32Thirdly, when the driver of the vehicle ran away, he first locked the car’s steering wheel with a device that required a small key. Again, it is an unlikely act for J.P. and it is more probable that Bi.R. was able to lock the steering wheel before he ran away because he was the person who usually used that device and who had the key.

33The officer’s evidence was not perfect, but it was the best evidence, and it was not shaken by cross-examination. The officer testified with respect to a couple of details from memory, such as the fact that he looked at the photos of both owners of the vehicle and that the driver told him his brother owned the car, that were not written in his notes. He also did not record each of the questions he asked the driver. However, these details do not change my assessment of the three factors, above, which persuade me that the officer correctly identified the driver of the vehicle, and that the driver, Bi.R., had a suspended licence at the time. In addition, the fact that the officer did not record the questions he asked but just the information he received in response to those questions does not change the evidence obtained from those answers.

34The appellants’ representative submitted that the video and audio recording of the interaction should have been disclosed and could have cleared up this matter. However, the only testimony I had with respect to the recording was that the driver’s face was not visibly identifiable on the tape.

35My finding that Bi.R. was driving the vehicle at the time it was impounded is further supported by the fact that the officer testified he was sure at the time that the driver he dealt with was Bi.R. because he looked at his photo on the MTO database when he went to his car after having talked to the driver.

36In sum, I am satisfied on a balance of probabilities that Bi.R. was driving the vehicle while his licence was suspended.

ORDER:

37Pursuant to subsection 50(2)(5) of the HTA, I confirm the impoundment order.