Date: 2021-09-01

Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment of a Motor Vehicle pursuant to section 55.1 of that Act

Between:

Jody Thorsteinson

Appellant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

Adjudicator: Jennifer Friedland, Member

Appearances:

For Appellant: Self-represented

For Respondent: Sonia De Santis, representative

Date & Location of Hearing: August 18, 2021 by teleconference

A. Overview

1The appellant appeals the 45-day impoundment of his 2011 Ford Mustang. The vehicle was impounded on July 25, 2021 pursuant to s. 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the "Act"). This provision allows a police officer to detain and then impound a motor vehicle if it is being driven by a person whose licence has been suspended in certain circumstances; including, as in this case, where the driver had failed to complete a remedial program following a driving-related criminal conviction.

2The driver in this case was the appellant himself, whose Ontario driver's licence had initially been suspended in 2008 for one year following convictions for impaired driving and failure to provide breath sample. He was living in New Brunswick at the time and shortly thereafter obtained a New Brunswick driver's licence, the validity of which was not in dispute at this hearing. 12 years later he was driving in Ontario under the authority of his New Brunswick licence and was pulled over. He learned at that time that his Ontario licence had been further suspended in 2009 for failing to take a remedial program. He also learned he was subject to an interlock ignition. He claims he was never notified of either requirement.

3The grounds on which an owner may appeal an impoundment under s. 55.1 are limited and are set out in s. 50.2(3) of the Act. The appellant in this case initially appealed on the following grounds:

(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 detained in order to be impounded was not then under suspension or subject to the condition described in paragraph 2 of subsection 55.1 (1); and

(d) that the impoundment will result in exceptional hardship

4During the course of the hearing, the appellant abandoned the exceptional hardship ground when it became clear that he could not meet the test for exceptional hardship as set out in section 10(1) of Ontario Regulation 631/98. That provision requires, as a starting point, that an owner claiming that the impoundment will cause exceptional hardship must have no alternative means of transportation available during the period of the impoundment. In this case, the appellant frankly acknowledged that he had transportation available to him in New Brunswick (which is where he lived) by way of a company vehicle.

5The hearing therefore proceeded only on the issue of due diligence.

B. Result

6For the reasons given below, I find that that the appellant should succeed on his claim to have exercised due diligence on the facts of this particular case. The Registrar is therefore ordered to release the vehicle pursuant to s.50.2(5) of the Act.

C. Facts

7The appellant's Ontario driver's licence was suspended in 2008 for one year following convictions for impaired driving and failure to provide breath sample. The offences occurred in 2006. The convictions were after a trial. The one-year suspension expired January 10, 2009.

8According to the certified copy of the appellant's driver record, on the same day that his one-year suspension expired, his licence was again suspended for failing to complete a remedial program.

9The appellant's driver record shows that his licence is also subject to an ignition interlock requirement upon reinstatement.

10The appellant testified that he did not know that the Registrar had imposed requirements to a take remedial program after his initial suspension. He stated that he did not receive notice of any such requirement and was not told anything about that requirement in Court. The appellant stated that he learned for the first time that there was a further suspension on his Ontario licence when he was pulled over on the date of the impoundment.

11The appellant also did not know of any interlock requirement. He learned of the interlock provision during the course of the hearing.

12The appellant had been living in New Brunswick at the time of his conviction and continues to reside in that province. Approximately three months after his conviction in Ontario, he applied for a New Brunswick driver's licence, which was granted.

13The appellant does not recall telling the New Brunswick authorities about his Ontario suspension, but believes he would have told them had they asked. He testified that he did not know that he was doing anything wrong by applying for his New Brunswick licence while a suspended driver in Ontario.

14The appellant attested to having a 12-year spotless driving record in New Brunswick.

15The Registrar did not challenge the validity of the appellant's New Brunswick licence at this hearing.

16At the time of the impoundment, the appellant was driving in Ontario under what he thought was the authority of his New Brunswick licence. He had come to visit his parents, whom he had not seen in three years. He testified that he was not aware that there was any restriction upon him driving in Ontario with his valid New Brunswick licence. He understood he was free to do so after the one-year period of suspension imposed by the trial judge following his conviction. He maintained that he had no knowledge of any requirements beyond that one-year suspension and no knowledge that his licence had been further suspended.

17The appellant does not dispute the fact that his Ontario driver's licence was in fact suspended at the time his vehicle was impounded. His position is rather that he had no reason to believe this was the case. He understood that the one-year suspension was the "pain and penalty" imposed when he was found guilty of the offences in 2008. He did not receive notice of any further requirements or notice that his licence was then suspended for failing to meet those requirements. He was driving with the "full belief" that he was "licensed, legal and insured."

18The Registrar submits that the appellant would have been sent a letter to his address on file with the Ministry of Transportation for Ontario (MTO) outlining the requirements of taking a remedial program before his licence could be reinstated. The Registrar suggests that he also would have been served with a notice of further suspension. However, the Registrar did not call any evidence to establish that such notice was in fact given in this case.

19The appellant acknowledges that he did not inform the Ministry of Transportation of his change of address as required under s. 33(1) of Ontario Regulation 340/94. He also did not have his mail forwarded. He confirmed in cross-examination that the address on the certified copy of his driver record was the address he was living at prior to moving to New Brunswick. He acknowledged that if a letter had been sent to the address on file with the MTO, he would not have received it.

20Since the impoundment, the appellant has taken positive steps to ascertain what he needs to do to be able to drive again legitimately in Ontario. He testified that had he known of these requirements; he would have dealt with them years ago.

21The Registrar did not dispute any of the above facts at the hearing but submits that the appellant ought not be able to rely on his ignorance of the true state of affairs as sufficient to ground a claim of due diligence.

D. Law & Analysis

22The meaning of "due diligence" was considered by the Supreme Court of Canada in R. v. Sault Ste. Marie¹ in the context of a defence to a provincial offence. In that case, the Court held that the defence of due diligence will be available to a person who "reasonably believed in a mistaken set of facts which, if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event."

23In Lévis (City) v. Tétreault, and Lévis (City) v. 2629-4470 Québec inc.², the Supreme Court explained that "the concept of diligence is based on the acceptance of a citizen's civic duty to take action to find out what his or her obligations are."

24One of the obligations imposed upon an owner of a vehicle in Ontario is to not allow that vehicle to be driven by a person whose licence is suspended at the time. An owner who allows a person to drive in Ontario when that person's driver's licence is suspended will, if caught, have their vehicle impounded

25The due diligence ground of appeal allows an owner to be relieved of the consequence of impoundment if he or she exercised due diligence in attempting to determine 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 or subject to an interlock ignition condition. In this case, the owner of the vehicle and the suspended driver were one and the same.

26The Courts and this Tribunal have held that the consideration of due diligence requires an assessment of what a reasonable person would do in similar circumstances.

27In this case, the appellant did not take any active steps to determine whether his licence was under suspension at the time he drove to Ontario to see his parents. He also took not steps to determine whether his licence was subject to an ignition interlock requirement.

28However, based on the evidence before me, and in the unique circumstances of this particular case, I find it was objectively reasonable in the circumstances for him not to have taken any such steps.

29I make this finding based on my acceptance of the appellant's evidence, which I found reliable and credible and which was not challenged or contradicted at this hearing. That evidence establishes that that in 2008 the appellant was told in Court that his licence would be suspended for one year. At no time thereafter did he receive notice that that his licence would be further suspended if he failed to take a remedial program, nor did he receive notice of any such requirements or notice of that further suspension. The appellant was not living in Ontario at the time and had no reason to have his Ontario licence officially reinstated as he had since applied for and had been granted a New Brunswick licence, the validity of which was not in dispute at this hearing. The appellant had been driving under the authority of his New Brunswick licence for over 12-years without incident or issue. He then drove to Ontario to visit his parents, only to learn that, unbeknownst to him, his Ontario licence had been further suspended in 2009 for failing to have completed a remedial program.

30The Registrar asks me to rely on section 52(1) and (2) of the Act to pin the appellant with knowledge of his suspension. This section is the same today as it was in the Act in force at the time. It provides as follows:

Service of notice of licence suspension

52. (1) Where a person's driver's licence is suspended, notice of the suspension is sufficiently given if delivered personally or,

(a) in the case of a suspension under section 41 or 42, sent by registered mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry;

(b) in the case of all other suspensions, sent by mail addressed to the person to whom the licence was issued at the latest current address of the person appearing on the records of the Ministry.

Deemed date of service

(2) Notice sent by registered mail under clause (1) (a) or by mail under clause (1) (b) shall be deemed to have been given on the seventh day after the mailing unless the person to whom the notice is sent establishes that he or she did not, acting in good faith, through absence, accident, illness or other cause beyond his or her control, receive the notice.

31The Registrar submits that, together with the requirement under O/Reg 340/94 at 33(1) for a driver to have provided his change of address to the Registrar, the deemed service provision set out in s. 52(2) of the Act ought to defeat the appellant's claim not to have known of his further suspension and obligations.

32I might agree with the Registrar's position, had I had before me any evidence that a notice of further suspension had in fact been sent to the appellant at the address on file. While Ms. De Santis may well be correct that a notice of further suspension and the other requirements would have been sent to the appellant's address on file with the MTO, she is not a witness at this hearing and her submissions are not evidence that any such notice was, in fact, sent in this case.

33Ms. De Santis offered that she could obtain proof of service of the appellant's further suspension if I were to grant an adjournment. However, ultimately, she did not ask for an adjournment, submitting that the Registrar would rely on the record as it was.

34I note that appellant's claim not to have received notice of a further suspension or notice of any requirements beyond his one-year suspension was set out in his Notice of Appeal. The Registrar thus had ample time to have provided the evidence that such notice was, in fact, served. I find that I cannot rely on the deemed service provision of the Act without that proof.

35Without evidence that notice of his further suspension was provided to the appellant, or that he received notice of the requirement to take a remedial program or have an ignition interlock condition, I am left with only the appellant's own evidence which is that he did not receive any such notices. Combined with the evidence, which I accept, that he was told in Court that his licence would only be suspended for one year, I find it was objectively reasonable for him to have relied on his valid New Brunswick licence when he drove to Ontario without further inquiry.

36The context of the appellant's claim to due diligence in this case is distinguishable from the context of the due diligence defences considered by the Supreme Court in Lévis. In that case, the Court overturned two acquittals entered by the Municipal Court of Lévis on charges brought against the respondents under the Quebec Highway Safety Code, R.S.Q., c. C. -C-24.2 ("Safety Code"). In one, the respondent was charged with putting a motor vehicle back into operation without have paid certain required registration fees contrary to the Safety Code. In the other, the respondent had been charged with operating a motor vehicle without a valid driver's licence having failed to pay the licence renewal fees by the prescribed date. In both cases, the respondents claimed to have been expecting that a notice of renewal would be received and gave other excuses for failing to have complied with the requirements of the Act. In both cases, however, the respondents knew that their registration or licence as the case may be was subject to expiry as both indicated this fact on their face.

37In the case before me, the evidence shows that the appellant did not know that his licence was or would be subject to a further suspension or that he was required to take a remedial course or be subject to an ignition interlock requirement. I accept the appellant's evidence that he was not told of such requirements in court and did not receive notice of any such requirements from the Registrar or notice of a further suspension. He also cannot be deemed to have received any such notice in this case, as the Registrar did not provide proof that any such notices were sent. ³

38In the above context, I find it objectively reasonable for the appellant to have relied on what he was told in Court and conclude that he faced no restrictions against driving in this province with his valid New Brunswick licence after the expiry of the one-year suspension of his Ontario licence. I find it was reasonable in the circumstances that he did not make further inquiries.

Conclusion

39While it may be that the reason the appellant did not receive notice of the requirement to complete a remedial program or notice that his licence was further suspended was because he had moved to New Brunswick without updating his address as required, such conjecture is not evidence. I do not have evidence that any such notices were provided to the appellant in this case.

40Had the Registrar provided evidence that notice was provided to the appellant of his further suspension, he would not be able to rely on his ignorance of that suspension to succeed on this appeal. In the face of proof that the notice had been sent in the required manner, the appellant would not be able to show a good faith reason for having failed to have received it and the deemed service rule would apply. I would have found this determinative of the issue – because whether he in fact knew of the further suspension or not, he would, in law, be deemed to have known about it. This would certainly have triggered an obligation for him to have done more than nothing before driving again in Ontario.

41In this case however, while the appellant did not take any active steps to enquire into the status of his Ontario licence, I am not prepared to find that he needed to in this particular case based on the evidence before me. That evidence satisfies me that the appellant understood his licence to have been suspended for one-year only following his conviction in 2008, having been told of this penalty by the trial judge. The appellant's evidence was consistent and convincing that he did not receive notice of a further suspension nor notice of any further requirements that would prevent him from driving in Ontario after that one-year suspension with a valid New Brunswick licence, nor can he be deemed to have received such notice since no evidence was called to establish that fact.

42In such circumstances, I find that it was reasonable for the appellant not to have taken further steps with respect to his Ontario licence after 12 years of driving in New Brunswick under a valid driver's licence from that province without issue. Having no reason to suspect his licence in Ontario was under suspension at the time he was driving and being unable to deem him aware of that fact, I find that the appellant should succeed on the ground of due diligence.

E. ORDER

43Pursuant to the Tribunal's authority under s.50.2(5) of the Act, the Registrar is ordered to release the vehicle.

LICENCE APPEAL TRIBUNAL

_______________________

Jennifer Friedland, Member

Footnotes

1. 11978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 at p. 1326
2. 22006 SCC 12 ("Lévis")
3. 3Note that under the Act in force at the time of the appellant's suspension, a further suspension for failing to take a remedial program took effect from the time notice of the suspension was given (see section 41.1 (1) and s. 52 of the historical version of the Act for the period December 1, 2008 to December 31, 2008, which provisions includes the deemed service rule). This is in contrast to today's Act in which a person whose licence has been suspended for a criminal-code related reason automatically continues until the driver has completed any conduct review program that he or she has been required to participate in.