Syed Husain v. Registrar of Motor Vehicles, 2021 CanLII 30626

Date: 2021-04-01

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:

Syed Husain Appellant

• and -

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Patricia McQuaid, Vice-Chair

Appearances:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur, Agent

Held by teleconference: March 11, 2021

OVERVIEW

1Syed Husain (the "appellant") appeals the impoundment of his vehicle on February 14, 2021. Mr. Husain was the driver of the vehicle when it was impounded. The vehicle was impounded because a police officer determined that Mr. Husain's licence was under suspension at that time, pursuant to s. 55.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act").

2Mr. Husain appeals on the ground that his licence was not under suspension when the vehicle was detained, in order to be impounded under s. 50.2(3)(b) of the Act.). He acknowledges that his licence had been suspended as a result of a conviction under the Criminal Code, but states that he has appealed the conviction and was granted a Stay of Driving Prohibition Order (the "Stay Order") by the Superior Court of Justice on November 4, 2020.

3The vehicle was released to the appellant on or about February 19, 2021. In this appeal, the appellant is seeking reimbursement of the fees he paid to the impound facility, given his position that the vehicle was impounded in error.

ISSUE

4Should the Registrar of Motor Vehicles ( the "Registrar") be ordered to reimburse the impoundment fees paid by the appellant on the basis that the appellant's licence was not under suspension when the vehicle was impounded?

RESULT

5After carefully considering the evidence and submissions, and for the reasons set out below, I conclude that the vehicle was improperly impounded, and that the vehicle shall be released and as a result, the appellant shall be reimbursed for the fees paid to the impoundment facility.

THE LAW

6Under the Act, a police officer shall impound a motor vehicle for a minimum of 45 days if the officer is satisfied that it was being driven by a driver whose licence was under suspension for reasons set out in s.55.1(1) of the Act, which include certain Criminal Code convictions,. In this instance, the conviction was for impaired driving.

7The owner of the impounded vehicle may appeal the impoundment to this Tribunal, and the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle.

8The Act sets out specified grounds on which an owner may appeal, and they include 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. This is the ground the appellant relies on in this case. The onus is on the appellant to establish the facts that support the ground of appeal on a balance of probabilities.

ANALYSIS

9Mr. Husain bases his appeal on the fact that he was granted the Stay Order on November 4, 2020 and therefore asserts that his licence was not under suspension on February 14, 2021. The appellant testified that when he was stopped by the police officer on February 14th, he showed his licence and the Stay Order to the officer. He stated that the officer did not know the effect of the Stay Order so told him that he would be impounding the vehicle. The appellant also stated that the officer told him that when he checked the appellant's driver's licence through the computer in his cruiser, the Ministry of Transportation ("MTO") system showed that his licence was suspended.

10The appellant testified that he had made several attempts to rectify the MTO record since April 2020 given his appeal of his Criminal Code conviction, but was unsuccessful, in part, due to complications related to the COVID-19 pandemic. Indeed, his vehicle has been impounded on several occasions between April 2020 and February 2021 because the MTO system has, throughout this period, showed his licence as suspended. After receipt of the Stay Order in November 2020, the appellant testified that he was told by Service Ontario personnel that without an update to the MTO system, he should always drive with the Stay Order on his person to show that he was legally permitted to drive.

11I accept the evidence of the appellant regarding his attempts to update the MTO record. In his testimony, he provided the names of persons he spoke to, including the person who the Registrar intended to call as a witness (unfortunately the witness was unavailable) and he seemed to be following the advice given to him – he was able to show the officer the Stay Order when he was stopped on February 14. Immediately following the impoundment, he sent his notice of appeal, with the Stay Order to MTO. The information provided by the Registrar shows that MTO verified the Stay Order by calling the courts, on February 17. On February 19, the information was applied to the appellant's MTO record and his status in their records was changed from "suspended" to "licensed", following which the vehicle was released.

12The Registrar's position in this appeal is that the wording "not then under suspension" in s. 50.2(3)(b) of the Act must be read as referring to the status of the licence as per the MTO record and it was not until February 19, 2021 that the appellant's status was changed to "licensed". Further, the Registrar submits that they had no notice of the Stay Order and the appeal of the Criminal Code conviction from the appellant until February 16. The crux of the Registrar's submission is that reimbursement of the fees paid to the impoundment facility is not required because the appeal and Stay Order were not reflected in the MTO record and as a result, the licence remained suspended.

13The Registrar's argument fails for several reasons. The Registrar does not dispute that the Stay Order has the effect of restoring the appellant's driving privileges – otherwise the MTO record would not have changed on February 19. And it is clear from reading the Stay Order that as of November 4, 2020 the appellant was legally permitted to drive his vehicle, subject to the terms and conditions set out in the Stay Order. However, the Registrar submits that the Tribunal must read the Act as meaning that until the Stay Order was recorded within the MTO record, the appellant's licence remained suspended, despite the existence and effect of the Stay Order and the appeal referred to therein. On this reasoning, the MTO computer system would take precedence over a court order in terms of the appellant's legal driving privileges, which cannot be correct.

14It is correct though that a driving prohibition (which was stayed by the court order) is distinct from a driving suspension and the two cannot be conflated. The driving prohibition is an order made by the criminal courts following a conviction on a driving related offence. The licence suspension is a consequence imposed under provincial law and that suspension not referenced in the Stay Order.

15The Registrar's submission that the appellant should have been more diligent in his efforts to update the MTO record also has some validity. It is true as well that a person is expected to know the law. The appellant, especially given the impoundments that occurred prior to this one, ought to have served the Registrar with notice of his appeal of his conviction pursuant to s. 55 of the HTA which states that if a person whose licence is under suspension enters an appeal against his conviction and serves notice of the appeal on the Registrar, the suspension is stayed from the time notice is served on the Registrar.

16However, on the facts before me, I find that the Registrar had notice. The Registrar's agent provided the Tribunal with a previous decision of the Tribunal dated January 14, 2021 which dealt with Mr. Husain's motion for an extension of time to appeal the impoundment of his vehicle in September 2020. His motion was denied, but the Stay Order, which makes clear reference to the appeal of the Criminal Code conviction, was before the Tribunal, and was provided to the Registrar at the time of that proceeding. The impact of the Stay Order was clearly referenced in the Tribunal's decision. The MTO employee who updates their system may not have had notice of the appeal and Stay Order in January 2021, but it cannot be said that the Registrar, through its agent who regularly litigates matters related to vehicle impoundments under s. 55.1 of the Act, had no notice by that time. In these specific circumstances, I find that the Registrar had notice of the appeal through the appellant's inclusion of the Stay Order with his notice of appeal in the previous impoundment, and specific reference to it in the January 14, 2021 Tribunal decision.

17As a result, I find that the appellant has met his onus of establishing on a balance of probabilities that his licence was not under suspension (as per s. 55 of the Act) on February 14th when his vehicle was impounded. The vehicle was improperly impounded. This finding is supported by the fact that the Registrar did release the vehicle on or about February 19th, in effect, an acknowledgement that at the time of the impoundment the appellant's licence was not then under suspension. It is worth noting as well that the aim of s. 55.1 of the Act is to make our roads safe and for vehicle owners to assume responsibility for ensuring that persons who drive their vehicles are legally permitted to do so. Here, the appellant was, as of November 2020, legally permitted to drive, pending the outcome of his appeal of his conviction. The risks addressed by s. 55.1 were not present.

18In a usual appeal, the vehicle would be ordered to be released as a result of that conclusion, and pursuant to s. 50.2(7) of the Act. Here, MTO rectified its records and the vehicle was available for release from the impound facility thereafter. This is not dissimilar from the situation in which the Tribunal issues a decision in favour of an appellant after the 45 day impoundment has concluded and the vehicle has already been retrieved. In those situations, the Tribunal orders, pursuant to s. 50.2(5) that the Registrar release the vehicle, the statutory power available to it under the Act. As a result, pursuant to s. 50.2(7) of the Act, when such an order is made, the Registrar shall (emphasis added) pay on behalf of the owner the amount incurred by the owner as a result of the impoundment. The result can be no different here. I will order that the vehicle be released. As a consequence, the appellant be reimbursed the impoundment fees, upon the Registrar's receipt of documentation which confirms the payment by the appellant.

ORDER

19Pursuant to s.50.2(5) of the Highway Traffic Act, I order the Registrar to release the appellant's vehicle.