Date: 2018-04-04

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act for driving while suspended.

Between:

Eco Green Insulation Ltd.

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Jacqueline Castel, Member

Appearances:

For the Appellant: Masood Firoozian, Agent

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: March 27, 2018

REASONS FOR DECISION AND ORDER:

A. Overview

1The appellant is appealing the impoundment of its vehicle, a 2017 Ford F450, on the basis that the driver, at the time the vehicle was driven, did not have a suspended licence.

2The appeal involves conflicting evidence concerning who was driving the vehicle on February 24, 2018, the date on which the vehicle was impounded.

3The appellant alleges that it permitted a part-time employee, who holds a valid driver’s licence, to drive the vehicle on the date in question. According to the appellant, the suspended driver was a passenger in the vehicle and did not drive the vehicle.

4Two witnesses told the police that they observed the suspended driver driving the vehicle on the date in question. The witnesses called the police because they believed that the suspended driver was going to drive while impaired.

5The police officer, who impounded the vehicle, did not witness the suspended driver driving the vehicle. He based his decision to impound the vehicle on the evidence of the witnesses who stated that they observed the suspended driver driving the vehicle earlier in the evening.

6I am required to determine whether or not the suspended driver drove the vehicle or was simply a passenger on the date in question.

7Based on the evidence, I am satisfied that the suspended driver did in fact drive the vehicle on February 24, 2018. As such, I confirm the impoundment.

ISSUES:

8The appellant raises one issue on this appeal:

Did the suspended driver drive the vehicle on the date of the impoundment, or was he simply a passenger?

B. EVIDENCE:

Appellant’s Evidence

9Mr. Masood Firoozian, who is an officer/director of the appellant, testified that he had no direct knowledge of what happened on February 24, 2018 as he was not present. In the Notice of Appeal, which he signed, he stated that he gave an employee, K.M., permission to drive the vehicle to Toronto on February 24, 2018. K.M. holds a valid driver’s licence. He also stated, in the Notice of Appeal, that he was aware that J.W., the suspended driver, was a passenger in the vehicle on February 24, 2018, but that he did not give him permission to drive the vehicle.

10J.W. testified that K.M. drove the vehicle from Newmarket to Toronto on February 24, 2018, and that he and K.M.’s girlfriend were both passengers in the vehicle. According to J.W.’s testimony, J.W. did not drive the vehicle at any time on February 24, 2018.

11When they arrived in Toronto, K.M. parked the vehicle on a residential street, near the house of L.H. (a friend of the woman J.W. was dating at the time). K.M. and J.W. then parted ways for the evening. K.M. went to a nightclub with his girlfriend, and J.W. walked to the residence of L.H. to meet his date, R.M.

12J.W. had made arrangements to meet R.M. at L.H.’s residence, and then he had R.M. were planning to go to a bar. They had drinks at L.H.’s residence and after about one hour L.H. accused him of being impaired and insisted on moving the vehicle, which was parked illegally. After L.H. moved the vehicle, she returned the keys and informed him of the location of the vehicle. J.W. subsequently left L.H.’s residence alone.

13Initially, J.W. walked around the neighbourhood as he waited for K.M. and his girlfriend to return. Eventually, he felt very cold and decided to return to where the vehicle was parked. He sat in the back seat of the vehicle and texted K.M. about the location of the vehicle.

14After a while, J.W. saw a police car driving slowly down the street. He exited the vehicle from the backseat passenger side and walked down the street. The police officer stopped him and said that he was suspected of impaired driving. J.W. told the officer he had not been driving and provided his identification, as requested. The police officer charged him with driving while his licence was under suspension and impounded the vehicle.

15In response to a question from Mr. Kapur, J.W. acknowledged that he has driven on prior occasions while his licence was under suspension, but emphasized that he did not drive on February 24, 2018.

16In response to another question, J.W. stated that he had the keys of the vehicle when he attended L.H.’s residence, even though it was allegedly K.M. who was driving the vehicle, because he wanted to impress R.M. with the fancy and expensive vehicle. He clarified that he was not planning on driving the vehicle that evening. Rather, his plan was to tell R.M. that he could not drive because he had too much to drink.

Respondent’s Evidence

17Mr. Kapur called three witnesses, the police officer who impounded the vehicle, and the two women (R.M. and L.H.) who gave statements to the police that they observed J.W. driving the vehicle on the date in question.

18Toronto Police Service Constable (PC) Nicholas Alley testified that on February 24, 2018 he received a call from dispatch that two women, R.M. and L.H., were concerned that a male who was impaired was going to drive. He noted the description and location of the male’s vehicle.

19PC Alley testified that he observed the male, later determined to be J.W., exit the parked vehicle from the back passenger seat of the vehicle. He did not observe J.W. drive.

20PC Alley explained that he impounded the vehicle because J.W. was a suspended driver and R.M. and L.H. both provided statements that they had observed J.W. driving the vehicle earlier in the evening.

21PC Alley testified that he called Mr. Firoozian to let him know the vehicle was being impounded. Mr. Firoozian told him that he did not give J.W. permission to take his vehicle. He also stated that J.W. is not permitted to drive at work. Mr. Firoozian did not say anything to PC Alley about giving a part-time employee or anyone else permission to drive the vehicle on the date in question.

22R.M. testified that she observed J.W. driving the vehicle, from the front bay window of L.H.’s residence, on the evening of February 24, 2018. She also observed him exit the vehicle from the driver’s seat. As J.W. parked the vehicle illegally and was subsequently approaching the wrong house on foot, R.M. went out onto the porch of L.H.’s residence, waved to J.W. and told him where to park. She then observed him enter his vehicle, drive it to another parking spot, and park it facing the wrong direction. R.M. testified that at no time did she observe anyone else in the vehicle.

23R.M. stated that when J.W. came inside, she introduced him to L.H. and they offered him a beer. It soon became apparent that J.W. was drunk. He was speaking slowly, slurring his words, and when it was time to leave, he had difficulty putting his shoes on. R.M. stated that J.W. admitted to them that he had consumed about one bottle of wine before driving from Newmarket to Toronto to meet them. However, he told them that the alcohol did not affect him until he consumed the beer at L.H.’s residence.

24R.M. testified that L.H. took the keys of the vehicle and parked it properly in a legal parking spot. They offered to call UBER for J.W. but he refused and left. J.W. did not mention anything about meeting a friend who would drive him home. As they were concerned that he was going to drive while intoxicated, they called 911.

25R.M. testified that she witnessed J.W. driving in Barrie in December 2017 when they met for an initial date. She also testified that she was a passenger in the vehicle while J.W. was driving in Barrie on January 3, 2018. She was not aware that his licence was under suspension at the time.

26L.H. testified that she also observed J.W. driving the vehicle from her front bay window and that she did not observe anyone else in the vehicle. She also testified that she moved J.W.’s vehicle because it was parked illegally and he was impaired. L.H. stated that she told R.M. that she would not let her get into a car with J.W. in his condition. L.H. also testified that they called 911 because she was afraid that J.W. was going to drive while impaired; she was concerned about liability since the last alcoholic beverage he consumed was at her residence.

27L.H. testified, in response to a question, that J.W. did not mention anything about a friend having driven him to Toronto from Newmarket, nor did he mention anything about this friend driving him home.

28Mr. Kapur filed the following documents which were admitted into the record:

1. Copy of the Ministry of Transportation records indicating that among other things, the impounded motor vehicle is registered in the name of the appellant as owner.
2. Copy of the notice prepared by the officer who detained the impounded motor vehicle indicating, among other things, that the vehicle was being driven by a driver suspended under s. 41/42/43 of the HTA.
3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment.
4. Copy of the Ministry of Transportation records indicating that the licence of J.W. at the time of the impoundment, was suspended until November 25, 2020 for driving while disqualified.
5. Copy of notes of Toronto Police Service Constable Nicholas Alley for February 24, 2018.

C. LAW:

29Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the HTA, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority, the impound period and the other requirements and obligations. The impound period is 45 days if there has been no previous impoundment in the last two years.

30Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal and on which the Tribunal may order the Registrar to release the motor vehicle. The Appellant appeals on the basis of paragraph (b) of s. 50.2(3), which states:

50.2(3) the only grounds on which an owner may appeal under section (1) and the only grounds on which the tribunal may order the Registrar to release the motor vehicle are,

(b) 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;

31For the purpose of s. 50.2(3)(b), the onus is on the appellant to prove, on a balance of probabilities, that the driver of the vehicle, at the time it was detained in order to be impounded, was not a suspended driver.

32Following a hearing under s. 50.2(5) of the HTA, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

ANALYSIS:

33Based on the evidence, I am satisfied that JW, the suspended driver, drove the vehicle on February 24, 2018.

34The appellant’s evidence was inconsistent and self-serving. Mr. Firoozian stated in the Notice of Appeal that he gave a part-time employee permission to drive the vehicle on February 24, 2018 and that he was aware that J.W. was a passenger in the vehicle. When P.C. Alley called him on the night in question, he stated that he did not give J.W. permission to drive his vehicle, and he made no mention of giving an employee or anyone else permission to drive the vehicle. At the hearing, he admitted that he has no direct knowledge of what happened on February 24, 2018.

35If an employee of the appellant drove J.W. from Newmarket to Toronto on February 24, 2018, as alleged, the appellant could have called this individual as a witness to give evidence. The appellant also could have called this employee’s girlfriend, who was allegedly a passenger in the vehicle, as a witness. The appellant did not call any witnesses other than J.W. Nor did the appellant explain why he chose not to call the employee or his girlfriend as witnesses.

36J.W.’s evidence also lacked credibility. At the outset, his testimony was not consistent with his signed statement, provided to the respondent and the Tribunal as part of the appellant’s disclosure package. In his statement, he made no mention of having any discussions with R.M. and L.H. about being impaired or having consumed alcohol that evening. Rather, he simply references a “heated argument” and L.H. asking him to leave. However, he testified that L.H. accused him of being impaired and moved the vehicle for him because she believed he had consumed too much alcohol.

37In addition, when J.W. was asked why he had possession of the keys to the vehicle, if he was not driving the vehicle that evening, the only explanation provided was that he wanted to impress R.M. with the fancy and expensive vehicle. This explanation was not credible, particularly in the absence of any evidence from K.W., the alleged driver. Further, although J.W.’s driver’s licence has been under suspension since 2016, J.W. acknowledged that he has driven on other occasions as a disqualified driver. R.M. also testified that she witnessed J.W. driving on two other occasions, once in December 2017 and another time in January 2018. As such, based on the evidence, it would appear that J.W. was in the habit of driving while his licence was under suspension.

38Both R.M. and L.H. had good independent recollections of what transpired that evening. Also, unlike the appellant and J.W., they had no vested interest in the outcome of the case. Their only interest, on the night of February 24, 2018, was in ensuring that J.W. did not drive while impaired. They had no knowledge at that time that J.W. was a suspended driver. R.M. and L.H. gave consistent and credible evidence that they observed J.W. driving the vehicle prior to attending L.H.’s residence. There was no reason for R.M. and L.H. to lie to the police officer about observing J.W. driving the vehicle earlier in the evening.

ORDER:

39Therefore, for the reasons set out above, pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s motor vehicle. The vehicle will remain in the impound facility for the remainder of the impoundment period.