Ashley Clark v. Registrar of Motor Vehicles, 2020 CanLII 51213

Date: 2020-06-25

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

Between:

Ashley Clark

Appellant

and

Registrar of Motor Vehicles

Respondent

Decision and Order

Adjudicator:

Katherine Livingstone, Member

APPEARANCES:

For the Appellant:

Luigi Delisio, Counsel

For the Respondent:

Sanjay Kapur, Agent

Heard by Teleconference:

June 12, 2020

Overview

1The appellant, Ashley Clark, appeals the 45-day impoundment of her motor vehicle on two grounds: a) she exercised due diligence in attempting to determine her driver licence was not under suspension at the time her vehicle was detained in order to be impounded and b) on the basis of exceptional hardship.

2The vehicle was impounded on April 23, 2020, after the appellant was pulled over by the police. The impoundment was pursuant to s. 55 (1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 ( the HTA). This section allows a police officer, in certain circumstances, to impound a vehicle.

3These circumstances include when a condition has been imposed on a driver’s licence requiring that the driver only operate a vehicle equipped with an interlock device and the driver is found not to be in compliance with this condition.

4At the time of the impoundment the appellant had a condition on her Ontario licence which only permitted her to drive a vehicle equipped with an ignition interlock device and the vehicle she was driving did not have such a device.

5The impoundment period ended on June 7, 2020. The appellant has retrieved her vehicle after paying the impoundment fees.

6The hearing proceeded by teleconference on June 12, 2020.

Issues

7The issues to be determined are whether the appellant established she exercised due diligence in attempting to determine her licence was not under suspension at the time it was impounded and whether the impoundment resulted in exceptional hardship.

Result

8I find in the circumstances before me the appellant exercised due diligence in attempting to determine her licence was not under suspension at the time of the impoundment. Having so found, it is not necessary for me to consider the ground of exceptional hardship.

Evidence

9The appellant testified during the hearing. She gave her recollection of the events surrounding her driver’s licence since October 2013, when it was suspended for a period of one year following criminal convictions for impaired driving and failing to remain at the scene of an accident.

10I found her to be a straight forward, guileless witness, who was trying to recall the facts in the best way she could regardless of whether her recollection would help or hinder her position.

11Once the driving suspension for the Criminal Code offences ended, the appellant’s licence remained suspended. This was due to a medical suspension imposed by the Ministry of Transportation (MTO). The Ministry required a medical assessment of her alcohol use, given there was an accident at the time of her impaired driving.

12The appellant said she did not apply to reinstate her licence after the one year suspension for impaired driving was up. In June 2015, she completed the Back on Track program, a necessary requirement for a driver convicted of an alcohol related offence.

13In October 2015 her doctor completed a medical report and forwarded it to the MTO. In December 2015, the MTO required a doctor complete a substance abuse report with respect to the appellant. She did not follow through on obtaining this report until March 2018. The respondent’s documents filed at the hearing included a letter dated March 19, 2018, addressed to the respondent, advising that her medical information had been approved and the medical suspension would be lifted. The letter went on to state that a notice of any outstanding licence requirements would be mailed to her separately.

14She said she did not drive in Ontario for two years before moving to Alberta in 2016. In August of 2018, the appellant said she spoke by phone with “Kate” from the MTO who told her, as her medical had been approved, she was eligible to start with a GI licence again without a waiting period because her licence had been suspended for less than five years.

15That same month, the appellant said she decided to apply for an Alberta driver’s licence. In order to obtain an Alberta licence, she was told she needed to obtain an Ontario driver’s licence abstract confirming her licence status. She wrote the MTO for the abstract which was then forwarded to the Alberta licencing bureau. A copy of the abstract was made an exhibit in the proceedings.

16The abstract is of considerable significance in examining the appellant’s state of mind as it relates to due diligence. Aside from containing tombstone information about the appellant, the abstract included the following headings and related information:

a. Current demerit points: (blank)

b. Suspended: no

c. Outstanding reinstatement conditions: (blank)

17The appellant testified that when she saw the abstract, combined with what she had been told by “Kate at the MTO” in August 2018, she was quite sure she did not have any restrictions should she wish to reinstate her licence in Ontario or drive in Ontario with an Alberta driver’s licence.

18She said she was initially aware that you could not drive for a period of time after your conviction without an interlock device, however she thought that restriction expired if you didn’t drive for two years. She was quite adamant she would not have driven in Ontario if she’d known she was still restricted from driving without an interlock device. In fact, to her detriment, she admitted driving in Ontario in November 2019, when she was here for a visit.

19She also advised that since the day her vehicle was impounded, she has been quite relentless in trying to determine how the impoundment came about. She has had ongoing contact with various staff at MTO and the investigating police officer. On May 11, 2020, some eighteen days after the impoundment, the interlock condition was lifted from her licence.

20In answer to the respondent’s questions on cross examination, she admitted she did not advise the MTO about her change of address even when they continued to send mail to her parent’s residence after she moved to Alberta. She acknowledged receiving many of the letters with respect to her medical suspension when put to her by the respondent’s agent. She also admitted receiving one letter with respect to the interlock requirements. She was unable to recall receiving all the documents that were reviewed by the respondent.

21The respondent filed a number of documents that demonstrated correspondence had been created by the MTO with respect to the appellant’s licence suspensions, most particularly her medical suspension.

22Additionally, the respondent relied on templates of correspondence normally sent to drivers who had been convicted of alcohol related offences to demonstrate the appellant would have been aware of the steps needed to be taken before the extinguishing of the interlock requirement. One of the filed templates outlined the requirement with respect to the interlock device stating as follows:

.... once your licence is reinstated from all active suspensions, when you drive a motor vehicle it must be equipped with an approved ignition interlock device. This condition will appear on your driver’s licence and will remain in effect for a minimum of one year for a first conviction (emphasis added).

23However, the respondent was unable, in many incidents, to demonstrate the letters had been sent to and/or received by the appellant and had to rely on the appellant’s candor to demonstrate receipt of the correspondence. The appellant did admit to receiving the document quoted above and in fact still had it in her possession, together with many other documents pertaining to her licences in both Ontario and Alberta.

Law and Analysis

24The intent of the Highway Traffic Act, R.S.O., 1990, c. H.8 is to promote public safety by preventing unlicenced drivers from operating motor vehicles. Pursuant to s. 55.1 of the HTA, a vehicle shall be detained and impounded where the licence of the person driving the vehicle is under suspension.

25The owner of a vehicle that has been impounded, may, pursuant to s.50.2 (3), appeal the impoundment and request an order that the Registrar release the vehicle. In this case the vehicle has already been released. However, if I find one or more of the grounds of appeal have been met, as a practical matter, the respondent would be required to reimburse the appellant for the impound fees for the 45 day period of impoundment. Two of those grounds of appeal are relevant to this hearing:

(a) that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver of the vehicle (also the owner in this case) at the time of the impoundment was not subject to the condition that she only drive vehicles equipped with an ignition interlock device and therefore did not know she was driving with a suspended licence

(c) that the impoundment will result in exceptional hardship.

26Appellants have the onus to establish, on the balance of probabilities, that any of the grounds in s 50.2(3) have been met.

27The respondent’s agent argued the appellant had failed to exercise due diligence. He noted her failure to notify the MTO of her move to Alberta thereby running the risk of missing correspondence from them. He said she could have “just picked up the phone” and called the MTO to determine the status of her licence.

28The respondent also argued there was a temporal connection to any due diligence which might have been undertaken by the appellant and the time of the driving which led to the impoundment. He submitted that, as the appellant had made her inquiries about the status of her licence in August of 2018, much time had past and she could not now rely on that information.

29I do not accept these arguments. It was clear during the hearing that, in the appellant’s particular situation, there were overlapping requirements for reinstatement of her Ontario licence. Firstly, there was the suspension resulting from the criminal offences. Then there was the suspension arising from the medical requirements. Finally, there was the condition requiring an interlock devise be on any vehicle she was operating for a period of one year after other suspensions had be lifted. The information on these suspensions and\or conditions for reinstatement came from different departments within the MTO and it is not clear the appellant was in receipt of all of the documents typically generated by the MTO. To a lay person, not well versed in the legislation and regulations governing the reinstatement of a licence, the interaction of these various provisions must be challenging to decipher. However, the appellant did take some steps to ascertain her status, prior to reviewing the MTO abstract in August 2018. She connected with “Kate” from the MTO in August 2018 who told her she was okay to start obtaining her G1 licence, while making no mention of the outstanding interlock provision.

30This step on its own, may not have amounted to due diligence. However, most importantly, the appellant reviewed the abstract from the MTO in August 2018 indicating her licence was not suspended. Additionally, the line in the abstract indicating whether there any conditions in place preventing reinstatement was left blank. She was granted her Alberta licence after the Alberta officials reviewed the abstract and she was able to obtain vehicle insurance based on the abstract. Surely, in these circumstances, she was able to rely on MTO information to reasonably conclude there were no barriers on her operating a vehicle in Ontario that was not equipped with an interlock device.

31With respect to the temporal connection raised by the respondent’s agent, the appellant had not moved back to Ontario nor taken any steps to have her Ontario licence reinstated. There was nothing to indicate the state of affairs had changed in the time period between August 2018 and the time she was stopped driving her vehicle and therefore no reason for her to revisit her reasonable belief.

32After a review of all of the evidence I am satisfied the appellant exercised due diligence in attempting to determine the status of her licence in Ontario.

Order

33For these reasons, pursuant to subsection 50.2 (5) of the Highway Traffic Act, the Appeal is granted, and the respondent is ordered to release the appellant’s motor vehicle.