Quenessa West v. Registrar of Motor Vehicles, 2022 CanLII 27255

Date: 2022-03-30

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:

Quenessa West

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Colin Osterberg, Member

Appearances:

For the Appellant: Quenessa West, Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: March 16, 2022

REASONS FOR DECISION AND ORDER

OVERVIEW

1Quenessa West (the "appellant") appeals the impoundment of her motor vehicle under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the "HTA"). The appellant's motor vehicle was impounded on February 15, 2022. At the time of the impoundment, the appellant was driving the vehicle while her licence was suspended in accordance with s. 42 of the HTA. A Notice of Impoundment was issued for a period of 45 days.

2The appellant appeals on the ground that she exercised due diligence in attempting to determine that her driver's licence was not under suspension. The appellant also appeals on the basis 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 in this appeal is whether the appellant exercised due diligence in accordance with section 50.2(3)(c) of the HTA.

5The second issue to be determined is whether exceptional hardship under section 50.01(3)(d) of the HTA is a ground of appeal available to the appellant.

EVIDENCE AND ANALYSIS

6The respondent presented evidence which establishes that:

(1) the appellant is the registered owner of the impounded vehicle, a 2015 Chevrolet;

(2) on February 15, 2022, the police discovered the impounded vehicle being driven by the appellant; and

(3) the appellant's licence was under suspension at the time her vehicle was detained for the purpose of impoundment. It was suspended on December 13, 2021, for one year pursuant to s. 42 of the HTA as the result of a conviction under s. 320.18(1) of the Criminal Code, R.S.C. 1985, c. C-46 (the "Criminal Code").

Due Diligence

7For the reasons which follow, I am not satisfied that the appellant exercised due diligence in the circumstances.

8Section 42(1)(a) of the HTA provides that the driver's licence of a person convicted under s. 320.18 of the Criminal Code is automatically suspended for one year for a first offence. On December 13, 2021, after a hearing, the appellant was convicted of operating a conveyance while prohibited contrary to s. 320.18 and sentenced to one year probation. By Notice of Suspension ("NoS") dated December 17, 2021, the Ministry of Transportation notified the appellant that her licence was suspended for one-year effective December 13, 2021. The NoS instructs the appellant that she is to stop driving and that she must not drive while she is suspended. The NoS also instructs the appellant to return her driver's licence to the Ministry of Transportation. The NoS contains the telephone number for the Ministry of Transportation in the event that the contents of the NoS are not understood.

9It was the appellant's evidence at the hearing before the Tribunal that she did not receive the NoS and did not know her licence was under suspension on the date the vehicle was impounded. She says that at her December 13, 2021, court appearance, the Crown sought a licence suspension and the presiding judge declined to impose one. The appellant later asked her lawyer if she still had her licence and he told her she did. The appellant did not realize that there was an automatic one-year suspension imposed by the HTA.

10Section 52(2) of the HTA provides that notice of a suspension under s. 42 is deemed to have been given on the seventh day after it is sent by registered mail to the person to whom the licence is issued unless she did not, acting in good faith, through absence, accident, illness or other cause beyond his or her control, receive the notice.

11The NoS was sent to the appellant by registered mail at her Ottawa address on December 17, 2021. According to the appellant, she lives with her mother and brother at that address. She says she traveled between Ottawa and Toronto several times during the Christmas and New Year season and spent most of her time during that period in Toronto. Her mother came back and forth with her, and her brother visited Toronto as well, but less often. Although the appellant was not aware of any other mail that she did not receive during that time, she says she never received the NoS.

12I am not satisfied that the appellant did not receive the NoS as she alleges. The address to which the NoS was sent was the correct one. The appellant spent some time in Toronto over the holidays but was also at home in Ottawa regularly during that period. Usually, when she was in Toronto there was someone at her Ottawa address who was bringing in her mail and placing it where she could find it when she got home. She received mail from other senders during that time and did not note any unusual delays or any missing letters.

13I do not find the appellant's evidence to be credible with respect to the issue of receipt of the NoS or in general. Her evidence was at times vague and self-serving, particularly regarding when she was at home in Ottawa over the holidays and who was present in her home at other times. She gave misleading evidence with respect to collateral issues, stating that her licence had only been suspended once or twice in the past, whereas her driver's licence record shows that it has been suspended six times in the last ten years. She suggested that her previous driving offences were committed many years ago when she was young, however she has been convicted of several offences in the last five years including impaired driving, dangerous driving, and following too closely resulting in a collision.

14The appellant says that she would not have driven had she known her licence was suspended, but this is not consistent with the evidence that the appellant has previous convictions for the operation of a vehicle while prohibited from doing so in 2021 and 2014 and a previous conviction for operating a vehicle with no insurance.

15While the appellant says that her lawyer told her that her licence was valid and that she was allowed to drive, her lawyer wrote a letter for use in this appeal which states that he did not discuss any Ministry of Transportation suspension that might result from her conviction for driving while suspended and only said that the judge presiding at the criminal hearing decided against a Criminal Code driving prohibition.

16I do not accept the appellant's evidence that she did not receive the NoS or that she did not know about the suspension of her licence when the vehicle was impounded. In the circumstance of this case, due diligence required the appellant to, at a minimum, contact the Ministry of Transportation to determine with certainty that she had a valid licence before driving. Had she done so, her suspension would have been confirmed to her.

17I find that the appellant has failed to prove on a balance of probabilities that she exercised due diligence in attempting to determine that her driver's licence was not under suspension when the vehicle was detained. The appeal based on s. 50.2(3)(c) of the HTA must fail.

Exceptional Hardship

18The appellant alleges that the impoundment will cause exceptional hardship and argues that her vehicle should be released pursuant to s. 50.2(3)(d) of the HTA.

19Section 50.2(4) of the HTA provides that the exceptional hardship ground of appeal is not available if there has been a previous impoundment under s. 55.1 of the HTA with respect to any motor vehicle then owned by the appellant.

20The evidence at the hearing was that, on June 3, 2019, a 2004 Acura motor vehicle owned by the appellant was impounded pursuant to s. 55.1 of the HTA after the appellant was found driving it while her licence was suspended. Therefore, according to s. 50.2(4) I am unable to consider the exceptional hardship ground of appeal with respect to the current impoundment.

ORDER

21For the reasons set out above, the impoundment of the appellant's vehicle is confirmed.