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:
Tyler Gowan
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Colin Osterberg, Member
Appearances:
For the Appellant: Tyler Gowan, Self-represented
For the Respondent: Leila Pereira, Agent
Heard by Teleconference: November 8, 2022
REASONS FOR DECISION AND ORDER
OVERVIEW
1Tyler Gowan (the "appellant") appeals the impoundment of his motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the "Act"). The appellant's motor vehicle was impounded on September 13, 2022. At the time of the impoundment, the appellant was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.
2The appellant appeals on the grounds that he exercised due diligence in attempting to determine that his driver's licence was not then under suspension, and that the impoundment will cause exceptional hardship.
3For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.
ISSUES TO BE DETERMINED
4The first issue to be determined is whether the appellant exercised due diligence in accordance with section 50.2(3)(c) of the Act.
5The second issue to be determined is whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.
EVIDENCE AND ANALYSIS
6The respondent presented evidence which establishes that:
(1) the appellant is the registered owner of the impounded vehicle, a 2022 Ram truck;
(2) on September 13, 2022, the police discovered the impounded vehicle being driven by the appellant; and
(3) the appellant's licence was under suspension for a Criminal Code conviction at the time it was impounded.
Due diligence
7This ground of appeal requires the vehicle owner to show that he took reasonable steps to determine that his driver's licence was not suspended at the time the vehicle was detained in order to be impounded. In this context, due diligence requires more than making assumptions of the facts. It requires steps to be taken by the owner to confirm that his licence was not suspended and that it was valid. The specific steps that amount to due diligence depend on the circumstances of each case.
8The appellant testified that in 2019 his licence was suspended for a year after he was convicted of a drinking and driving offence. He said the judge at his trial gave him the option of receiving a six-month licence suspension followed by a period during which he would be prohibited from driving any vehicle without an interlock device, and a one-year licence suspension with no interlock requirement after its expiry. He says he elected the one-year suspension because he did not want his young daughter to see him having to use the interlock device.
9I do not accept that the appellant was given the choice of sentences as he alleges. Section 320.24(1) of the Criminal Code, R.S.C. 1985, c. C-46, provides for a mandatory minimum one-year driving prohibition for a person's first impaired driving offence. Also, pursuant to s. 41(1)(f) of the Act, a person's licence is automatically suspended for one year for their first impaired driving offence. Under s. 41(4.1) of the Act, a suspension under s. 41(1)(f) continues beyond the one-year period until the person has successfully completed any conduct review program under section 57 of the Act. In the present case, the appellant was required to install and use an interlock device and to attend "Back on Track" training as a condition of licence reinstatement.
10While s. 41(1)(f) allows for early reinstatement under s. 57 of the Act, that is only available where the person has plead guilty to the drinking and driving offence. There is no provision under the Act which relives the person from the interlock or Back on Track training whether or not the early reinstatement provision is available.
11In the context of these statutory provisions, the appellant's evidence that he was given the sentencing options he alleges is not credible and I find that his evidence about that is probably not true. Specifically, I do not accept that he was offered the choice of a six-month suspension with an interlock requirement or a one-year suspension without an interlock requirement.
12According to the Registrar, the appellant would have been sent a registered letter advising him that his licence would remain suspended until he completed the interlock and "Back on Track" requirements. Although the appellant denies receiving such a notice, he admits that the mailing address the Ministry of Transportation's ("MTO") had on file for him was correct and there was no reason he would not have received mail sent to that address. I do not accept the appellant's evidence that he did not receive notice of the reinstatement requirements sent to him by the MTO.
13Moreover, the appellant had a lawyer advising him with respect to his criminal charges. I find it unreasonable to believe that the appellant would not have asked him about the requirements for licence reinstatement. The appellant could have also found information detailing the requirements for reinstatement by conducting an internet search.
14I find that the appellant probably knew, and certainly ought to have known, that his licence would remain suspended until he completed the interlock and Back on Track requirements.
15The appellant gave evidence about incidents which he says caused him to believe that his licence was no longer suspended. First, in 2020, after his suspension period expired, he says he went to a Service Ontario location where he applied for his licence to be issued. The appellant says the person at the Service Ontario counter did not tell him that he had to complete any further steps to reinstate his licence. He says he received his driver's licence card in the mail a short time later.
16Second, the appellant says he was stopped by police on September 26, 2020 and was issued a speeding ticket. He was not charged with operating a vehicle with a suspended licence and his vehicle was not impounded at that time.
17Finally, in 2021 the appellant's licence came up for renewal. He says he received his new licence card in the mail. The MTO's records confirm that the appellant's licence was renewed on May 17, 2021, and that it was issued to the appellant that same date,
18The appellant argues that the issuance of the licence card in 2020, the failure of the police to charge him with driving without a licence in 2020, and the renewal of his licence in 2021, caused him to believe that his licence was no longer under suspension. For the reasons which follow, I do not accept the appellant's position.
19I am not satisfied the appellant received a licence card in 2020 as he alleges. At the hearing the appellant submitted his Driver's Licence History which he obtained from the MTO and that history does not show the issuance of a licence in 2020. The appellant did not produce a licence card at the hearing or any other documentation showing that a licence was issued at that time.
20The failure by the police officer to charge the appellant with driving while suspended or to impound the vehicle he was driving, was not explained at the hearing. I accept that this incident might, on its own, cause someone to believe that their licence is not suspended. However, in this case the appellant knew his licence was suspended and failed to take reasonable steps to ensure that it was reinstated. I have found that the appellant knew that he needed to take Back on Track training and comply with the interlock program before his licence was reinstated and I do not accept that it was reasonable for the appellant to believe that his licence was no longer suspended based on the actions of the police officer.
21Similarly, the renewal of a licence on its own might justify a belief by the licence holder that he or she has a valid licence. However, in the circumstances of this appeal, where the appellant knew his licence was suspended, was given notice of the steps required for reinstatement, and failed to take those steps, I am not satisfied that the appellant's belief that his licence was no longer suspended was reasonable or justified by his receipt of a licence renewal in 2021.
22In my view, due diligence required the appellant to do more than he did to ensure he held a valid licence. Although the appellant may have believed his licence was no longer suspended, he did not take the reasonable steps available to him to ensure this was so and his belief was unjustified and unreasonable. If he had taken reasonable steps, he would have known that his licence was still suspended at the time it was impounded.
23I find that the appellant did not exercise due diligence in accordance with the Act. His appeal pursuant to s. 50.2(3)(c) of the Act must fail.
Exceptional Hardship
24Section 10 of O. Reg. 631/98 under the Act (the "Regulation") sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.
25Subsection 10(1) requires the Tribunal to first consider whether an alternative to the impounded vehicle is available. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:
[T]he 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.
26If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under s. 50.2(3)(d) of the Act will fail.
27If the owner proves that there is no alternative to the impounded vehicle available, then s. 10(1) of the Regulation requires the Tribunal to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle, or to the environment or community in whose service the motor vehicle is ordinarily used. According to s. 10(3), if the appellant has proven that there is no alternative to the impounded vehicle the Tribunal may, in limited circumstances, consider financial, economic, or employment losses. The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.
28Section 10(3) of the Regulation also provides that the Tribunal may not consider financial loss or loss of employment opportunity unless the vehicle owner demonstrates that the impact of the loss will be on a person other than the person whose driving while suspended resulted in the impoundment.
29The appellant says he needs the impounded vehicle for use in his business. He works doing home renovations and used the vehicle to pull a trailer with his tools to job sites. Since the impoundment, the appellant has lost some days from work because he is unable to transport his tools. He has also fallen behind in some jobs. I accept that the appellant has lost income as a result of the impoundment, however I am unable to consider those losses because they have been incurred by the appellant, who was the person driving while suspended.
30Moreover, the appellant's evidence was that his financial losses are primarily the result of the fact that his licence is suspended rather than as a result of the impoundment. It is not within the mandate of the Tribunal to consider losses that are due to a licence suspension, only those which result from an impoundment.
31The appellant also argues that he has been unable to drive his daughter to her usual activities as he did before the impoundment. However, the evidence is that this is also the result of the appellant's licence suspension and not because of the impoundment.
32I find that the appellant has not established exceptional hardship within the meaning of the Act and his appeal must fail on this ground.
ORDER
33For the reasons set out above, the impoundment of the appellant's vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
____________________________
Colin Osterberg,
Member
RELEASED: November 16th, 2022