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
Between:
Haley Milan
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Theodore Crljenica
Appearances:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis, Agent
Place and date of hearing: By teleconference April 3, 2020
REASONS FOR DECISION AND ORDER
OVERVIEW
1A teleconference hearing was held on April 3, 2020 to consider an appeal filed by Haley Milan (the “appellant”) under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA” or the “Act”) relating to the impoundment of her motor vehicle.
2The appellant’s motor vehicle was impounded on February 21, 2020 on the grounds that the operator of the motor vehicle, the appellant herself, had a suspended licence. A Notice of Impoundment was issued for a period of 45 days.
3The appellant’s Notice of Appeal is dated March 3, 2020. In it she has raised three grounds of appeal:
a. That her licence was not suspended at the time the vehicle was detained in order to be impounded (“the time of impoundment”);
b. Alternatively, that she exercised due diligence in determining that her driver’s licence was not suspended at the time of the impoundment; and
c. That the impoundment will result in exceptional hardship.
4For the reasons set out below, the appeal.is allowed.
ISSUES:
5The issues to be determined in this appeal are:
a. Was the appellant’s driver’s licence under suspension at the time of impoundment?
b. Is the statutory test of due diligence satisfied on the basis that at the time of impoundment the appellant held a valid driver’s licence issued by the Ontario Ministry of Transportation in 2017 in her married name?
c . Did the appellant establish exceptional hardship?
SUMMARY
6The appellant was driving her own vehicle on February 21, 2020 when it was detained and impounded. At the time she held a valid Ontario driver’s licence in her married name.
7In 2000, unbeknownst to the appellant, the Ministry of Transportation “issued” a driver’s licence in her maiden name following a conviction for impaired driving for which the sentence included a one year licence suspension. She was unlicensed at the time of the conviction and the Ministry created a licence for her in order to administer the suspension. The Ministry did not notify her of this.
8In 2017 she obtained a driver’s licence in her married name. At the time of impoundment she was operating her vehicle pursuant to this licence. She learned of the existence of the previously issued and suspended licence when her vehicle was impounded.
ANALYSIS
Did the appellant exercise due diligence?
9For the reasons below, I find that the appellant exercised due diligence in determining that her driver’s licence was not under suspension at the time of impoundment. Thus, I will address this issue first.
Evidence
10In 2000, when the appellant 18 years old and unmarried, she was charged with impaired driving. She and some friends had been drinking alcoholic beverages in a rural area following which the appellant drove a friend’s vehicle on a rural road and was involved in a single car accident. At the time of this accident she did not have and had never had a driver’s licence. She was injured and hospitalized, and thus, has little recollection of her interactions with the police at that time.
11The appellant was charged with impaired driving. She was not represented by a lawyer and did not recall if she spoke to duty counsel but she pleaded guilty to impaired driving. According to the respondent’s records this was on March 23, 2000.
12According to the appellant, after she entered her guilty plea, she was sentenced – her licence was suspended for one year, she was required to complete the “Back on Track” remedial program in order to have her licence reinstated and she was fined $800.
13The appellant testified that she knew she would have to pay the fine but as she was not working at the time she did not take any steps to pay it. She believed that as she did not have a driver’s licence at the time that the reference to a one year suspension precluded her from applying for a driver’s licence for one year. It was also her belief that as she did not have a driver’s licence at that time which could be reinstated, she was not required to complete the Back on Track program. Consequently, she did not register for the program.
14One of the documents entered into evidence by the respondent is the Ministry’s “Driver’s Record” for the appellant. On that document are two entries of significance dated March 31, 2000. They appear under the heading “Transactions. One of the entries reads “Create Master” and immediately below it “Amendment – D/L Issued”.
15According to the respondent’s agent, these entries indicate that on March 31, 2000, one week and one day after the appellant pleaded guilty and was sentenced, the Ministry of Transportation, on its own initiative, created a driver’s licence in the appellant’s then current (maiden) name (“the 2000 licence”). The agent explained that this is done for the Ministry to administer the suspension when a driver’s licence suspension is issued for an unlicensed driver.
16There was no evidence as to what the word “issued” in the entry “D/L Issued” means, whether a physical licence was created, or whether this was simply an internal driver’s licence number generated by the Ministry for internal use.
17Thus, since March 31, 2000, the appellant has had a driver’s licence in her maiden name, but this licence was suspended. It is not clear from the Ministry documents whether this licence was suspended as of March 31, 2000, the date of its creation, or if the suspension was back-dated to March 23, 2000.
18Nor is there any evidence that the Ministry advised the appellant of the existence of the 2000 licence and/or that the licence was suspended.
19One of the documents relied on by the respondent indicates that on the first anniversary of the appellant’s conviction, the Ministry “suspended” the appellant’s driver’s licence as a result of “Fail to complete remedial program”. There is no evidence that the Ministry advised the appellant of the extension of the suspension of the 2000 licence.
20The appellant testified that up to and including the date of impoundment she was not advised of, nor aware of, the existence of the 2000 licence and its status.
21Nothing of significance occurred until in or around 2009. In or around that time, for employment purposes the appellant enquired into applying for a pardon for the impaired driving conviction. She was told that by someone, but she is not certain who, that she could not obtain a pardon as the $800 fine was still outstanding. Nothing was said to her about not having completed the Back on Track program.
22The appellant eventually paid the $800 fine but does not recall when. She did not take any further steps to obtain a pardon for the impaired driving conviction.
23The next event occurred in 2012. That year the appellant attended at a Service Ontario location to begin the process of obtaining her driver’s licence. By that time she was married but she testified that she showed the clerk her birth certificate on which her maiden name was recorded. The appellant proceeded through the process to become a fully licenced driver, having attended at a Service Ontario location to progress from a G1 licence to a G2 and finally a G licence. According to the Ministry documents this licence was issued in 2017 (“the 2017 licence”). She spoke to a clerk on each attendance at Service Ontario and presented her identification but was not advised of the existence of the 2000 licence or that it was under suspension.
24On February 21, 2020 the appellant was stopped by a police officer. After checking the appellant’s record from his cruiser, the officer advised the appellant that a driver’s licence had been issued in her maiden name and that it was under suspension. He then detained and impounded her motor vehicle.
25Shortly thereafter, the appellant attended at a Service Ontario office to determine the status of her driver’s licence. Service Ontario confirmed the existence the 2000 licence and “merged” the two licences under the 2017 licence number. The result that she has only one licence and the suspension of the 2000 licence was applied to the 2017 licence.
26Afterwards the appellant took the steps necessary to have the suspension rescinded. It was the appellant’s testimony that had she known about the 2000 licence and its suspension, she would have dealt with it earlier.
Analysis
27This ground of appeal is based on subsection 50.2(3)(c) of the HTA, which reads:
50.2(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may order the Registrar to release the motor vehicle are:
(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;
28I find the appellant to a very credible witness. She did not waiver in her testimony during examination by the respondent’s agent, readily acknowledged when she did not know the answer to a question and overall came across as a sincere witness. Therefore, I accept the appellant’s evidence in its entirety, including:
a. That she was not advised by the Ministry of Transportation of the existence of the 2000 licence or that it had been suspended;
b. In 2012, the appellant advised Service Ontario of her maiden name when she applied for a G1 licence, and at no time during her interactions with Service Ontario from 2012 until 2017 did anyone at Service Ontario advise her of the existence of the 2000 licence or the fact that it had been suspended;
c. From 2012 until the date of impoundment the appellant held a valid driver’s licence in her married name and at no time prior to the impoundment did she have any knowledge of the existence of a suspended driver’s licence in her maiden name.
29This Tribunal has ruled on many occasions that the owner of a motor vehicle exercises due diligence in regard to the status of the driver’s licence of a third party driver whom the owner allows to drive the vehicle, by asking to see, and examines that person’s driver’s licence to determine if it is still valid.
30I apply this same analysis here. The appellant was issued a valid driver’s licence by the agency (Service Ontario) to which the Ministry of Transportation entrusted the task of issuing driver’s licences. It would be unreasonable to expect her to go behind the issuance of the 2017 licence to determine if the licence was issued in error or improperly, as was suggested by the respondent’s agent in closing submissions. The appellant was entitled to rely on the driver’s licence issued to her to determine that she held a valid driver’s licence that was not under suspension and pursuant to which she was permitted to drive. Thus, I find that the appellant exercised due diligence in determining that her driver’s licence was not under suspension at the time of impoundment.
Exceptional Hardship
31Although it is not necessary to address the issue of exceptional hardship as the appeal is allowed on the grounds of due diligence, the appellant would not have succeeded on this ground. The facts upon which she relied were, in some instances, inconveniences, in others a financial loss to herself which cannot meet the test of exceptional hardship (O. Reg.631/98, s10(3)(d)(i) and (ii)), and those relating to her children were not proven to constitute a threat to their health or safety.
ORDER
32For the reasons set out above the appeal is allowed and the respondent is ordered to release the appellant’s motor vehicle.
LICENCE APPEAL TRIBUNAL
_________________________
Theodore Crljenica
RELEASED: April 7, 2020