Thomas Courtney v. Registrar of Motor Vehicles, 2021 CanLII 82769

Date: 2021-08-25

Appeal Under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c.H.8 from an Impoundment pursuant to Section 55.1 of the Act for driving while under suspension

Between:

Thomas Courtney

Appellant

and

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION

ADJUDICATOR:

K. Livingstone, Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Sonia De Santis, agent for the Registrar

Heard by teleconference:

July 23, 2021

Overview

1On June 25, 2021, the appellant’s vehicle was impounded for 45 days, pursuant to s.55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the HTA). This section requires a police officer to detain and impound a motor vehicle being driven by a person in the following circumstances:

1. While his or her driver’s licence is under suspension under section 41, 42 or 43, even if it is under suspension at the same time for any other reason.

2. 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.

3. While his or her driver’s licence is under suspension for a prescribed reason under a conduct review program under section 57, even if it is under suspension at the same time for any other reason. (italics added)

2The appellant was driving the vehicle at the time it was stopped by police.

3The impoundment period ended on August 9, 2021.

4The appellant appeals the impoundment on two grounds:

a. That his driver’s licence was not suspended at the time it was detained.

b. The impoundment of the vehicle will cause exceptional hardship as defined by the HTA and the Regulations.

5After reviewing the material filed together with the evidence at the hearing and submissions made, I found the appellant had failed, on a balance of probabilities, to meet his onus on both grounds. The appeal was dismissed, and the impoundment of the vehicle was confirmed. I advised written reasons would follow. These are those reasons.

Issues

6The issues raised by the appellant were whether his licence was suspended at the time the vehicle was detained and whether the impoundment would result in exceptional hardship.

7As a result of the position taken by the appellant, in his filed material and during the hearing, an additional issue arose: whether the appellant 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.

Preliminary Issue

8Prior to the hearing, the appellant brought two Notices of Motion, both requesting his vehicle be released without a hearing and the respondent fully reimburse him for the costs of the impoundment. An adjudicator reviewing the motions decided both would be heard at the time of the hearing.

9Accordingly, I heard arguments from the parties on both motions before dealing with the issues raised in the notice of appeal.

10The first motion was filed by the appellant on July 20, 2021, shortly before the end of the business day. It alleged a failure of the respondent to comply with the Order of the adjudicator made at the case conference on July 15, 2021, specifically to provide disclosure to the appellant of documents the respondent intended to rely on by July 20, 2021.

11The appellant drafted the grounds for his motion around 3:05 pm on July 20, 2021, saying he had not yet received disclosure. The respondent’s material was filed shortly before the end of the working day. I find the respondent did not fail to comply with the Order.

12However, while recognizing the respondent is only responsible for providing disclosure of documents they intend to rely on at the hearing, I am troubled by the respondent’s lack of preparedness to provide documents that can be retrieved by them and which might be of assistance to an appellant.

13I note that on July 9, 2021, the appellant sent a request for disclosure to the Ministry of Transportation. The following nine items were requested:

a. “A copy of the notice of suspension for criminal code conviction which was served on Mr. Courtney.

b. A copy of the notice of suspension the under the HTA for not completing the remedial measures

c. A copy of disqualified or ban ordered by a judge or justice of the peace that expires on or after the date of impoundment

d. A copy of all returned mail which the MTO received and dates and description of the enclosed items.

e. A copy of the disqualified order which was from a criminal conviction that was still an order of a judge on the day of the impoundment.

f. A copy of the re-instatement of driver’s licence after 1998

g. The criminal code conviction which was in was within 10 years (sic)

h. A definition to warrant the 45-day impoundment from non compliance of redeama (sic) measures under the HTA

i. Is driving under suspension for redeaml (sic) measures a HTA suspension or a criminal code offence”

14Although admittedly many of the listed items were not documents that would have originated from the respondent, some of them were, such as a copy of the notice of suspension under the HTA for not completing the remedial measures program. There was no attempt by the respondent to assist this unrepresented appellant in retrieving documents under the respondent’s control other than suggesting the appellant apply under the provisions of the Freedom of Information and Protection of Privacy Act (FIPPA), a process that takes several days if not weeks.

15In an appeal such as this, where the matter is time sensitive, relying on an application under the FIPPA is simply not feasible. It is disappointing that a public servant charged with dealing with the public would not be more proactive in the circumstances and be prepared to provide the documents that could be retrieved by them.

16In reviewing the material, I find it highly unlikely the requested documents would have made a difference in the outcome of the appeal however, some assistance by the respondent in providing documents they had in their control may have gone some distance in helping the appellant understand the pitfalls in the position he was taking on the appeal.

17On July 22, 2021, the appellant filed another motion alleging the vehicle was impounded based “under incorect rule of the law” (sic). It was difficult to understand the grounds of the motion other than the appellant did not feel his particulars circumstances fell within those which should result in an impoundment. I find this motion was part and parcel of the issue raised on appeal.

18The appellant also raised the argument that, at the time of his suspension in 2012 for failing to complete the remedial measures program, there was no 45-day impoundment period that would have resulted from a person driving while under this type of suspension. The 45-day impoundment only came into being by a change in the legislation in 2016. The appellant argued the 45-day impoundment would not apply to a suspension issued before the change in legislation. In support of this argument, he referenced legislation from Saskatchewan, which would have no bearing on an impoundment in Ontario. I do not find support for his position that a person whose driver’s licence was suspended since 2012 would be immunized from a 45-day impoundment.

Evidence and Analysis

a) Was the appellant’s licence suspended at the time of the impoundment?

19The respondent presented evidence the appellant was stopped by police on June 25, 2021 while operating a motor vehicle owned by him. Further investigation revealed the appellant was a suspended driver as of August 10, 2012 for failure to complete a remedial measures program after Criminal Code convictions on August 11, 2011 for dangerous driving and failing to stop for police.

20Additionally, the certified driving record introduced by the respondent indicated the appellant’s licence has been suspended since August 6, 1998 for an unpaid fine. He had an additional 6 month suspension in 2019 for driving under suspension and for using plates not authorized in 2017.The appellant’s driving record indicated that at the time he was stopped by police on June 25, 2021, his licence was suspended, cancelled and unrenewable.

21The appellant testified and acknowledged the criminal convictions in August 2011 for dangerous driving and failing to stop for police. He said at the time of his sentence, he was prohibited from driving under the Criminal Code for 5 years and sentenced to a five-year period in the penitentiary.

22He acknowledged that his record indicated suspensions in 1998 and in 2019; however, he contested the validity of both these suspensions. With respect to the 1998 conviction, he said he had been trying to sort out that suspension for over 20 years and the Ministry was mistaken with respect to continuing to insist his licence was suspended as a result of the unpaid fine.

23With respect to the conviction in 2019 for driving under suspension, he said he was appealing that conviction as he had not been the driver at the time the vehicle was stopped.

24With respect to the suspension that is the subject of this appeal, failing to complete the remedial measures program, the appellant argued he had not received notice of the suspension as he was in a federal penitentiary at the time the notice would have been sent out. He said he was never served, nor did he know about the suspension.

25His position was that as he was unaware of the suspension for failure to complete the remedial measures program, his licence was not suspended for that purpose and his vehicle should therefore not have been impounded.

26He also raised a confusing argument to the effect that his vehicle could not be impounded unless there had been a corresponding criminal conviction. He seemed to confuse and intermingle criminal law terms, criminal driving prohibitions and Highway Traffic Act suspensions. Unfortunately, his position in this regard lacked clarity.

27The main tenet of the appellant’s argument that merits consideration is his assertion that he did not receive notice of the suspension for failing to complete the remedial measures program. However, I do not accept his position that a lack of notice would vitiate the suspension. The uncontradicted evidence is that the appellant’s licence was suspended in 2012 for failing to complete the remedial measures program. This ground of appeal is dismissed.

b) Did the appellant exercise due diligence?

28Rather, the issue becomes: if I accept the appellant did not receive notice of this suspension, can he then rely on the ground of due diligence to overturn the impoundment?

29The due diligence ground of appeal requires the appellant to prove, on a balance of probabilities, that he “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.”

30As to what constitutes “due diligence,” the standard was considered by the Supreme Court of Canada in R. v. Sault Ste. Marie, 1978 CanLII 11 (SCC), [1978] 2 S.C.R. 1299 at p. 1326 in the context of a defence to a provincial offence. Due diligence requires the appellant to prove he took “all reasonable care” to avoid the particular event. This involves a consideration of what a reasonable person would have done in the circumstances.

31In Lévis (City) v. Tétreault, 2006 SCC 12, [2006] S.C.J. No. 12 (S.C.C.), the court held passivity should not be confused with diligence (italics added), rather “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.”

32I accept the appellant’s evidence that he did not receive notice of the suspension for failing to complete the remedial measures program, as he was incarcerated when the notice would have been sent. There was no evidence to the contrary presented by the respondent. He said that as he had not received notice of the suspension, he was unaware of the fact it was on his driving record.

33However, that is not the end of the issue. The appellant candidly acknowledged he knew he was a suspended driver and had been for years. He also testified he has been in contact with the Ministry of Transportation over the years dealing with his suspension in 1998. He did not provide any supporting documentation in this regard. Additionally, he was familiar with his suspension in 2019 and said he was taking steps to appeal it. Again, there was no supporting documentation in this regard.

34Interestingly, he also said that he thought if he was stopped while driving under suspension, he would only incur a 7-day impoundment at the discretion of the investigating officer. So, on his own evidence the appellant had clearly taken some steps to inform himself about the status of his licence. However, he insisted he was unaware of the suspension re the remedial measures program. These positions are inconsistent.

35I find that at best the appellant was ambivalent about the status of his licence. He knew his licence had been suspended since 1998 but continued to drive. He said he had knowledge of his record as it relates to other suspensions on his record but curiously not the one that is the subject of the appeal.

36When assessing the appellant’s veracity as it relates to the issue of due diligence, I find his credibility of concern.

37When the appellant was testifying, he outlined the circumstances under which he was stopped by the police. He said he was only driving the car at that time as he thought he had seen a woman being accosted by a male who then took flight. He said he jumped in his car to follow the man and it was at that point he was stopped by police. This version differs significantly from his explanation in his notice of appeal filed with the Tribunal where he said, “Mr. Courtney was forced to drive to get food as no one was able to take him”.

38These two contrasting explanations for his driving speak to a lack of reliability in his evidence.

39In all the circumstances, I do not find the appellant exercised due diligence and find the appellant cannot succeed on this ground of appeal.

c) Will the impoundment result in exceptional hardship

40Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the requirements that must be met to show the impoundment will result in exceptional hardship.

41Pursuant to section 10 (1) of the Regulation, the first part of the test requires the Tribunal to consider whether “no alternative to the impounded motor vehicle is available”.

42Section 10 (4) then sets out what an appellant must show to meet this initial prong of the test:

In order to show that no alternative to the impounded motor vehicle is available… the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.

43If this initial step of the test for exceptional hardship is met, the appellant must then show, on a balance of probabilities, that the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

44In determining whether exceptional hardship will result from an impoundment under section 55.1 of the Act, the Tribunal shall not, subject to subsection (3), consider whether the impoundment will result in,

(a) inconvenience to any person;

(b) financial or economic loss to any person;

(c) loss of employment or employment opportunity to any person; or

(d) loss of education or training or of an educational or training opportunity to any person.

(3) The Tribunal may consider the criteria set out in clauses (2) (b), (c) and (d) if the owner demonstrates that,

(a) no alternative to the impounded motor vehicle is available;

(b) the loss will be immediate, significant and lasting;

(c) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and

(d) the impact of the loss,

(i) will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and

(ii) will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d).

45Although in his notice of appeal, the appellant relied mainly on his own circumstances during the impoundment of his vehicle with respect to the ground of exceptional hardship, during the hearing he appeared to change his position and request that consideration be given to his employee and his employee’s family in determining the issue of exceptional hardship.

46The appellant testified he had an employee living some distance from him who relied on the appellant’s car for transporting his family, in particular a young child with medical issues. The appellant was uncertain as to the particulars of the needs of the child and about what other arrangements were being made to accommodate the employee’s family during the time of the impoundment. The employee was not called as a witness, so I did not have the opportunity of hearing from him firsthand to flesh out the details of his family’s circumstances. In light of this I am unable to conclude the employee’s situation amounts to exceptional hardship.

47In situations such as the appellant’s, where the owner of the impounded vehicle is also the one found driving while suspended, the legislation is limiting with respect to the ground of exceptional hardship.

48The appellant testified he was living in a hotel in the country with no ready access to amenities without the assistance to his employee who drove his vehicle. He said he did not have access to another vehicle nor to public transit. He said his food supply was dwindling at the time of the hearing. He also said his ODSP payments did not cover his costs and that his inability to earn additional income was compromised by the lack of his vehicle.

49I am satisfied the appellant had no alternative means of transportation; however, that is not the end of the issue. As stated in paragraph 44 above, I cannot consider any loss of income, employment or employment opportunity. Although the appellant’s circumstances were certainly challenging and inconvenient after the impoundment of his vehicle, I am not satisfied he has met his onus of proving on a balance of probabilities that they are a threat to his health and safety. This ground of appeal is dismissed.

Order

50The impoundment of the appellant’s vehicle is confirmed.