Brooke Babineau-Dill v. Registrar of Motor Vehicles, 2020 CanLII 51238

Date: 2020-07-14

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:

Brooke Babineau-Dill

Appellant

and

Registrar of Motor Vehicles

Respondent

Decision and Order

ADJUDICATOR:

Katherine Livingstone, Member

APPEARANCES:

For the Appellant

No one appearing

For the Respondent:

Stella Velocci, Agent

Heard by Teleconference:

July 3, 2020

Overview

1The appellant, Brooke Babineau-Dill, appealed the 90-day impoundment of her motor vehicle on the ground that her vehicle was taken and driven without her knowledge and consent. The impoundment was pursuant to s. 55 (1) of the Highway Traffic Act, R.S.O., 1990, c. H.8 ( the HTA) which states that a vehicle shall be impounded where the licence of the person driving the vehicle is under suspension.

2On May 16, 2020, the appellant’s vehicle was impounded after police pulled over the vehicle which was being driven by a person with a suspended licence due to criminal code related offences. The same vehicle with the same driver had been stopped by police on April 23, 2019 and impounded. As the May 16, 2020 incident was the second occurrence in two years, the impoundment period was for 90 days.

3A date for a hearing by teleconference was set for June 5, 2020 at 9:30 a.m.

4On that date the respondent’s agent, a witness for the respondent and the court reporter all attended on the call. The appellant did not call in and after several minutes I requested a Tribunal case management officer attempt to contact the appellant. Two efforts where made to contact her with no success. By 10:15 a.m. she had not connected to the teleconference and I indicated to the respondent’s agent I was prepared to dismiss the appeal as abandoned. The hearing ended.

5On June 5, 2020 the appellant emailed the Tribunal, indicating she had been called into work and had forgotten about the hearing. She wanted to set another date for the hearing. Although I had indicated it was my intention to dismiss the appeal, given the explanation by the appellant and the timeliness of her contact with the Tribunal, I found the interests of fairness required another hearing date be set.

6Efforts were made in the ensuing days to communicate with the appellant and respondent about an agreed upon date for the new hearing. No agreed dates could be found in June. The dates of July 2 and 3, 2020 were specifically canvassed with both parties and the appellant advised she would contact the Tribunal by June 22, 2020 to confirm her availability. She did not call as she said she would.

7Despite the lack of response from the appellant, a new hearing date was set for July 3, 2020 at 1:30 p.m. The parties were notified in writing on June 25, 2020 of the new date, together with the call-in details. On July 2, 2020 both parties were sent a reminder notice of the hearing on July 3, 2020. On the morning of July 3 at 9:51 am a Tribunal case manager officer left a voice mail on the appellant’s phone reminding her of the hearing date and time.

8On July 3, 2020 at 1:30 p.m. the respondent’s agent, witness and court reporter all called into the hearing. The appellant did not attend on the call. Efforts were made to contact her by phone however no answer was received. I waited until 2:00 p.m. for her to connect with the hearing. She did not.

9The appellant bears the burden of proof. Despite the best efforts of the Tribunal to accommodate the appellant in setting a new hearing date so the matter could be heard on its merit, the appellant chose not to attend the teleconference hearing. I find the appeal should be dismissed on the basis the appellant has abandoned her appeal. I also find on the merits that the appellant has not satisfied her onus to prove her vehicle was taken without her knowledge and consent. Therefore, the impoundment is confirmed.

Order

10For these reasons, pursuant to subsection 50.2 (5) of the Highway Traffic Act, the appeal is dismissed and the impoundment is confirmed.