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 for driving while suspended.
Between:
Kari Dayfox
Appellant
And
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Stephen Scharbach, Member
Appearances:
For the Appellant: Kari Dayfox, Self-Represented
For the Respondent: Sonia DeSantis, Agent
Heard by Teleconference June 23, 2021
Overview
1Ms. Kari Dayfox (“appellant”) appeals the impoundment of her 2019 Ford SPE (“vehicle”). It was impounded on May 2, 2021 for 45 days when it was discovered being driven by her partner in contravention of a condition on his driver’s licence that prohibited him from driving a motor vehicle not equipped with an ignition interlock device (“the condition”).
2The appellant appeals the impoundment on two grounds:
a) that her partner’s driver’s licence was not subject to the condition at the time the vehicle was impounded,
b) the appellant exercised due diligence in attempting to determine that at the time of the impoundment, her partner’s driver’s licence was not then subject to the condition.
ISSUE
3Should the Registrar of Motor Vehicles (‘Registrar”) be ordered to release the appellant’s vehicle on either of the asserted grounds?
DECISION
4For the reasons set out below, I conclude that:
a) the driver’s licence of the appellant’s partner was subject to the condition at the time the vehicle was impounded; and
b) the evidence does not establish that the appellant exercised due diligence in attempting to determine that her partner’s driver’s licence was not then subject to the condition.
5As a result, the appeal must fail, and I have ordered the Registrar to confirm the impoundment.
THE LAW
6Under the Highway Traffic Act (“Act”) a police officer shall impound a motor vehicle for 45 days if the officer is satisfied that it was being driven by a driver in contravention of a condition that prohibits him/her from driving a motor vehicle not equipped with an ignition interlock device.
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 allows only five specified grounds on which an owner may appeal, and they include the two grounds the appellant relies on in this case. Those two grounds are set out in section 50.2(3) of the Act which states:
The only grounds upon which an owner may appeal […] and the only grounds upon which the Tribunal may order the Registrar to release the motor vehicle are:
(b.1) that the driver’s licence of the driver of the motor vehicle at the time it was […] impounded was not then subject to the condition […]
(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 […] impounded […] was not then subject to the condition […]
9The onus is on the appellant to establish the facts that support the ground of appeal on a balance of probabilities.
THE FACTS
10The appellant is the owner of the impounded vehicle. The vehicle was being driven by Christopher Simpson-Johnson (“CSJ”), the appellant’s partner, when it was impounded.
11According to Ministry of Transportation (“MTO”) records, at the time of impoundment, CSJ’s driver’s licence was subject to a condition that prohibited him from driving a vehicle unless it was equipped with an ignition interlock device. The appellant’s vehicle does not have an ignition interlock device and when police found CSJ driving it, the vehicle was impounded for 45 days.
12According to the appellant, she and CSJ were effectively told earlier by MTO officials that CSJ’s licence was no longer subject to the condition. Her position is that either;
a) CSJ’s licence was not subject to the condition, or,
b) she exercised due diligence in attempting to determine that CJS’s driver’s licence was not subject to the condition, and she was given the false impression by MTO officials that CSJ’s licence was free of any condition.
13Both the appellant and CSJ testified. I accept the appellant’s testimony that she was present with CSJ throughout his interactions with MTO officials.
14MTO records indicate that CSJ’s driver’s licence was suspended in 2011 after a Criminal Code drinking and driving offence. It was later further suspended after CSJ was convicted of driving while under suspension. According to CSJ, he didn’t immediately try to get his licence reinstated because he didn’t have a vehicle and was still paying off fines.
15In January 2019, a condition was placed on CSJ’s licence requiring an ignition interlock device. According to the Registrar’s agent, that condition was imposed as a result of changes to the Act that made ignition interlock devices mandatory for certain drivers. Pursuant to those changes and under the MTO’s Ignition Interlock Program, drivers whose licences have been suspended due a drinking and driving offence became subject to a mandatory ignition interlock condition for a one-year period (for first time offenders) after their suspension ended.
16Under the program, the licence holder must apply to the MTO to have the condition removed. As part of the application for removal, the licence holder must submit a substance use assessment form completed by a health care professional. The MTO mails the form to the licence holder about 6 months before the condition removal date and the licence holder must arrange for a health care professional to complete the form and submit it to the MTO. The information is then reviewed by the Registrar who decides whether the licence should be reinstated with or without conditions. The ignition interlock condition remains in force until the substance use assessment form is completed and reviewed by the MTO.
17In this case, according to CSJ and the appellant, CSJ started the process to have his licence reinstated in 2018. He attended the MTO mandated substance abuse program “Back on Track”. According to the CSJ, he was told by program personnel that to have his licence reinstated, he would be required to either have an ignition interlock device condition on his driver’s licence for 6 months, or he could wait for one year in which case his licence would be reinstated without conditions. That information appears to have been wrong.
18According to CSJ and the appellant, CSJ chose the latter option and they understood that CSJ would be eligible for a condition free licence after January 2020. Accordingly, CSJ booked a test for his G2 licence and he passed it in November 2020 at an Ontario testing centre in Sudbury, Ontario. CSJ was not told at the testing centre that his licence was still subject to the ignition interlock condition and he took the test on a vehicle not equipped with an ignition interlock device. According to the appellant, that further reinforced her understanding that CSJ’s driver’s licence was condition free.
19In November 2021, CSJ was stopped by police for speeding, he produced his licence and was given a speeding ticket. According to CSJ and the appellant, the police likely ran a driver’s licence check but did not raise the ignition interlock condition, which further cemented their impression that CSJ’s licence was condition free.
20According to the appellant and CSJ, they were thus surprised when, in May 2021, CSJ was stopped while driving the appellant’s vehicle and the vehicle was impounded.
ANALYSIS
21The appellant has raised two grounds for appeal, and I will deal with them separately.
22The appellant’s first ground of appeal is that CSJ’s licence was not subject to condition requiring an ignition interlock device at the time the vehicle was impounded.
23Based on the evidence presented, I conclude that CSJ’s licence was in fact subject to the ignition interlock condition and this ground of appeal must fail.
24MTO records indicate that the condition has been on the appellant’s licence since January 2019. The MTO’s Ignition Interlock Program requires that the condition remain on the licence until the appellant applies for its removal supported by a positive substance use assessment. In this case, CSJ did not submit an assessment form and the condition remained on his licence.
25CSJ testified that he did not submit the assessment form because he never received one from the MTO – it was sent to an old address that was no longer current. I note that it was CJS’s responsibility to update his/her address with the MTO and his failure to do that likely resulted in him not receiving the form which was required to start the process to remove the condition.
26However, the issue is whether CJS’s driver licence was in fact subject to a mandatory interlock condition. Based on the available evidence, I conclude that CJS’s licence was in fact subject to the condition although the appellant and CJS apparently understood otherwise. Accordingly, the appellant’s first ground of appeal must fail.
27The appellant’s second ground of appeal is that she exercised “due diligence” in attempting to determine that at the time of the impoundment, CSJ’s drivers’ licence was not subject to the condition. That ground of appeal requires that the appellant establish on clear, credible evidence that she took all reasonably expected steps to confirm that CSJ’s licence was valid and not subject to a condition prohibiting him from driving her vehicle.
28The appellant states that in the circumstances of this case both the appellant and CSJ were under the honest impression that CSJ’s licence was condition free. According to them, they were given that impression by MTO officials and the police who should have informed them of the continued existence if the condition. Their failure to do so led her and CSJ to the reasonable conclusion that CSJ’s driver’s licence was not subject to the condition. Specifically, the appellant points to the following:
a) CSJ claims he was told by the Back on Track program personnel that his licence would not be subject to any condition after January 2020;
b) CSJ took his G2 driving test at an MTO test centre in November 2020 and he was not informed of any condition on his driver’s licence;
c) The MTO test centre let the appellant take the test in a vehicle not equipped with an ignition interlock device; and
d) CSJ was stopped by police and ticketed for speeding in November 2020. The condition was not brought to his attention at that point.
29It is concerning that CSJ was allowed to take his G2 test at an MTO test centre, apparently in violation of the condition, and the condition was not brought to his attention by MTO officials. It is also surprising that the police did not raise the condition during the November 2020 traffic stop. Based on the available facts, I can understand how that contributed to the appellant’s impression that the condition had expired.
30However, I also note, and CSJ admits, that the driver’s licence card that was sent to him after he passed his G2 test noted the condition on its face. It appears that any impression the appellant and CSJ may have gained that there was no condition was directly contradicted by the driver’s licence card.
31Had the driver’s licence card that CSJ received not contained, on its face, the ignition interlock condition, I would have found that the steps taken by the appellant were duly diligent. However, in my opinion, faced with that obvious contradiction, due diligence required that the appellant make further inquiries of the MTO to clarify whether there was a condition on the licence or not. The appellant did not make those inquiries.
32I therefore conclude that the appellant has not established on a balance of probabilities that she exercised due diligence in attempting to determine that CJS’s driver’s licence was not subject to the condition, and this ground of appeal also fails.
ORDER
33Pursuant to s.50.2(5) of the Highway Traffic Act, I confirm the impoundment of the appellant’s vehicle.
LICENCE APPEAL TRIBUNAL
Stephen Scharbach, Member
Released: July 19, 2021