Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2020-12-07

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.

Between:

Robinson Rainey Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

Adjudicator: Evelyn Spence, LL.B.

Appearances:

For the Appellant: Robinson Rainey, Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference:

November 19, 2020

DECISION AND ORDER

A. Overview

1The appellant, Robinson Rainey, appeals the 45-day impoundment of his motor vehicle. On September 15, 2020, the vehicle was impounded because Mr. Rainey was found to be driving without having an ignition interlock system installed on his vehicle.

2Mr. Rainey appeals the impoundment on the basis that his driver’s licence was not under suspension and there were no conditions that prohibit him from driving in the province of Ontario. Although he is a former resident of Ontario and has an extensive driver history in the province, he holds a valid Alberta driver’s licence and resides there the majority of the time.

3At the time of the hearing, the impound period had concluded and the vehicle had been released back into Mr. Rainey’s custody. He now seeks to recover the $2,008 he paid in impound fees.

B. ISSUE AND DECISION

4The issue to be decided is whether the appellant has established one of the grounds of appeal for ordering the release of his vehicle under the Highway Traffic Act, R.S.O. 1990, c. H8 (the “Act”). For the reasons that follow, I find that appellant has failed to discharge his burden, and I confirm the impoundment.

C. LAW

5The intent of the Act is to promote public safety, and this is done, in part, by preventing persons whose driver’s licenses are suspended or are subject to certain conditions from operating motor vehicles in contravention of the suspension of licence conditions. Under section 55.1(1) of the Act, a police officer shall impound a motor vehicle if the officer is satisfied that it was being driven by a person in one of three circumstances specified in that section, one of which is:

In contravention of a condition, imposed for a prescribed reason on his or her driver’s licence under a conduct review program under section 57, that prohibits him or her from driving a motor vehicle that is not equipped with an ignition interlock device.

6The owner of a vehicle that has been impounded pursuant to section 55.1 of the Act may, under section 50.2(1) of the Act, appeal the impoundment and request an order that the Registrar release the vehicle. As a practical matter, if the Tribunal finds that one or more of the grounds of appeal have been met, the respondent Registrar would be required to reimburse the appellant for the impound fees for the 45-day period of impoundment.

7There are limited grounds on which an owner may appeal an impoundment, set out in section 50.2(3) of the Act, and the appellant bears the burden of proving one of the enumerated grounds of appeal on a balance of probabilities. One of the permissible grounds is 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”. Another is 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 subject to the condition described in paragraph 2 of subsection 55.1(1)”.

D. ANALYSIS

The impoundment

8A resident of Alberta, the appellant drove his vehicle, with Alberta licence plates, to Ontario in August 2020 to perform a moving job. As a result of an earlier offence, which occurred when the appellant lived in Ontario, a condition was imposed on his Ontario driver’s licence which prohibited him from driving a vehicle in the province unless equipped with an ignition interlock device. The appellant’s driver’s record makes it very clear that the condition was imposed effective October 8, 2019 and will expire on October 8, 2022.

9Since the appellant was found to be driving a vehicle without an interlock device when he was stopped by police on September 15, 2020, in contravention of this condition, the police officer impounded the appellant’s vehicle for 45 days.

10At the hearing, the appellant agreed there was no ignition interlock device installed on his vehicle, but he asserted his belief that it was not necessary since he holds a valid Alberta driver’s licence, and that licence is not subject to any conditions. He seemed to dispute that any condition in Ontario was lawful or applicable, given that he is no longer a resident and he had surrendered his Ontario licence and replaced it with an Alberta one.

11The respondent’s agent explained that the ignition interlock is a provincial requirement and is not coordinated country wide. Despite the fact that the device might not be required to drive in Alberta, he asserted that the appellant would have known, upon his completion of the “Back on Track” remedial program, that his licence would be subject to ignition interlock requirements in Ontario. The appellant testified that he did complete the “Back on Track” course, or an equivalent of that course, which is how he was able to have his licence reinstated in October 2019. Nevertheless, he denies having received the many and ongoing post-program communications that the respondent’s agent argued would have been sent to all drivers after completing the courses.

The appellant’s ground for appeal

12The appellant maintains that the statutory authority for the impoundment in his case is section 55.1(1) of the Act and that that section only allows for impoundment if the vehicle was driven by a person whose licence was under suspension. Since his licence was not under suspension at the time of the impoundment, he argues the impoundment was unlawful.

13The appellant’s argument depends on an assertion that section 55.1(1) only allows for impoundment when the driver’s licence is under suspension. However, a plain reading of that section makes it clear that section 55.1(1) allows for impoundment in three circumstances. One of those circumstances is when the driver’s licence is under suspension but a second, separate circumstance is when the driver is contravening a condition requiring an ignition interlock device.

14Section 50.2(3) sets out the 5 permissible grounds for appeal and one of them is that the driver’s licence was not under suspension at the time of impoundment. Another ground of appeal is where the appellant can establish that the driver’s licence was not subject to an interlock condition at the time of impoundment. When read in isolation, each ground of appeal appears sufficient in and of itself to obtain an order releasing the vehicle, regardless of the reason for the impoundment. However, when given a fair reading, and within the context of the rest of the legislative scheme, it becomes apparent that the availability of each appeal ground depends on the underlying reason for the impoundment.

15The provisions at issue here clearly establish a legislative intent that a motor vehicle be impounded when it is driven by a person whose licence is (1) suspended for certain reasons; and/or (2) subject to an interlock ignition condition, where the vehicle has no such interlock ignition device.

16In my view, the legislative intent behind the appeal provisions is that an owner may only appeal on the ground that the licence was not then under suspension where the vehicle was impounded because it was driven by a suspended driver. Similarly, an owner may only appeal on the basis that the driver’s licence did not have an interlock ignition condition if the vehicle was impounded because the driver was driving in contravention of an interlock condition.

17If this were not the case, every appeal where the driver’s licence was not both suspended and subject to an ignition interlock condition would be successful regardless of whether the vehicle was being operated by a suspended driver or was being operated in contravention of an interlock condition. This would frustrate the apparent purpose of the Act’s impoundment scheme, which is to promote compliance with the Act, and would also lead to an absurd result. I reject such an interpretation.

18The appellant has not established a ground of appeal requiring release of his vehicle. Notwithstanding that he held a valid out-of-province licence and surrendered his Ontario licence, his driver’s record clearly establishes that he was subject to an interlock condition at the time of impoundment. He admitted that his vehicle did not have such a device. Because his vehicle was not impounded by virtue of his licence being suspended, the appellant cannot rely on a lack of suspension as a ground for appealing the impoundment. This is true whether he is ordinarily resident in Ontario or not.

E. CONCLUSION AND ORDER:

19In summary, the appellant has failed to establish an applicable ground of appeal on a balance of probabilities. The fact that the appellant’s driver’s licence was not under suspension is not a ground for appeal where, as in this case, the impoundment was due to a contravention of a condition requiring an interlock device.

20Pursuant to section 50.2(5) of the Act, I confirm the impoundment of the appellant’s motor vehicle.

LICENCE APPEAL TRIBUNAL

____________________________ Evelyn Spence, LL.B. Member