Thomas Courtney v. Registrar of Motor Vehicles, 2022 CanLII 33259

RECONSIDERATION DECISION

Before: K. Livingstone, Member

Date of Order: April 25th, 2022

Tribunal File Number: 13457/MVIA

Case Name: Thomas Courtney v. Registrar of Motor Vehicles

Heard by written submissions from: Thomas Courtney, self-represented

Overview

1The appellant requests reconsideration under Rule 18.2 of the Tribunal’s Rules,¹ of my decision dated August 25, 2021, in which I dismissed the appellant’s appeal of the impoundment of his vehicle. I found the appellant failed, on a balance of probabilities, to meet his onus on all grounds.

2The vehicle was impounded on June 25, 2021, pursuant to s 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the HTA), which requires a police officer to detain and impound a motor vehicle being driven by a person in certain circumstances including:

a. While his 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

3Initially, the appellant relied on two grounds to appeal the impoundment: first, whether his driver’s licence was suspended at the time the vehicle was impounded and, second, whether the impoundment of the vehicle would cause exceptional hardship as defined by the HTA and the Regulations. Based on the material filed by the appellant prior to the hearing and the evidence submitted during the hearing, an additional ground for appeal 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.

4After reviewing the appellant’s reconsideration submissions, I did not find it necessary for the respondent to make submissions.

5In his request for reconsideration, the appellant indicated he was seeking to have the decision” overturned”, an “order to repay Mr. Courtney for the impoundment fees which were paid to get the car released” and “a letter of apology”.

Result

6Having considered the appellant’s submissions and for the reasons that follow, I deny the appellant’s request for reconsideration.

Background

7The appellant was stopped by police on June 25, 2021, while he was driving a motor vehicle. Investigation revealed that his driver’s licence was suspended as of August 10, 2012, for failure to complete a remedial program following Criminal Code convictions on August 11, 2011, for dangerous driving and failing to stop for police. The appellant argued he had not received notice of the suspension as he was incarcerated at the time the notice would have been sent and as such his licence was not suspended pursuant to the relevant provisions at the time he was stopped.

8The appellant did acknowledge he was aware of other particulars of his driving status, including a suspension since 1998 for an unpaid fine and a further suspension in 2019 for driving under suspension.

9Prior to the hearing date, the appellant brought two motions, both requesting the release of the vehicle without a hearing. An adjudicator reviewing the motions determined both would be heard at the time of the hearing.

Analysis

10A reconsideration is not an appeal, nor an opportunity to re-litigate the same points presented at a hearing in search of a different result, nor an opportunity to make new submissions. Furthermore, grievances about the way the legislation is structured are not a reason to reconsider.

11The grounds for a request for reconsideration are limited to those set out in Rule 18.2. According to that rule, a request for reconsideration will only be granted if:

a) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness.

b) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.

c) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or

d) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

12The onus is on the party seeking reconsideration to establish one or more of the Rule 18 grounds for reconsideration.

13In the present case the appellant relies on all grounds set out in Rules 18.2. I will address each ground separately.

i) The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness.

14The appellant provided a plethora of written material, much of it repetitive, as part of his reconsideration request, the majority of which was not helpful in addressing the specific grounds for reconsideration.

15A significant portion of the filed material referred to “Principles Informing the POA Reform Framework” which is not relevant to this regulatory matter.

16The material also raised concerns about the “fairness” of the impoundment sections of the HTA, as the appellant alleges that the impoundment sections violate the Charter of Rights and the Constitution. In his submissions, Mr. Courtney asks, “is it fair that a person loses their property before being found guilty, is it fair to presumption of guilt (sic) to impoundment of the vehicle, is it actually protecting public (sic) or is it hurting the lower income individuals who can’t afford the fees of the impoundment and end up losing their vehicle which is needed for work”.

17The appellant conflated criminal and administrative proceedings and the criminal and administrative standards of proof. As such it was difficult to ascertain the basis on which the appellant believed the Tribunal acted outside of its jurisdiction or violated the rules of procedural fairness. With respect to alleged breaches of the Charter, the appellant had not filed and served a Notice of Constitutional Question. Despite the procedural failures, I address the Charter below.

18One of the arguments the appellant raised arguably goes to the issue of procedural fairness. The appellant submits, ”the Tribunal did not rule on the 2 motions PRIOR to the decision on the appeal”. While I did not make a ruling on the two motions before commencing the evidence on the hearing, I did hear arguments from each party on both motions as a preliminary issue and then addressed those arguments in my decision, denying both motions. In reviewing the manner in which the appellant’s motions were addressed I do not find the adopted procedure violated the rules of procedural fairness. Even if I ruled on the motions in the sequence suggested by the appellant, that would not have changed the outcome.

19Having reviewed the material provided by the appellant several times, I have not found any reference to the Tribunal acting outside of its jurisdiction and would dismiss this ground of reconsideration.

ii) The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made

20Again, in reviewing the appellant’s material it was difficult to ascertain the basis on which the appellant is grounding his argument that I made an error of law or fact such that I would have likely reached a different result. The appellant did refer to “errors of law” being in part as follows;

1. Evidence by the Ministry did not meet the burden of proof

2. Relied on a lack of evidence by the appellant and refusal of the motions

3. The adjudicator Livingstone erred by applying the provincial law to a hearing when the evidence before the Tribunal was based on a criminal code conviction, moreover the appellant was charged under the criminal code which was the attached offence to the remedial measures suspension to impound the vehicle for 45 days.

4. Applying HTA rules while using evidence from the criminal laws to punish a person for an offence under a different law causes conflict of the 2 laws which violates the Charter of Human Rights and Freedoms (sic) and the Constitution and places the Ministry of Justice (sic) in disrepute.

21As mentioned earlier, the onus of proof is not on the Registrar but rather on the appellant. I am unclear as to what the appellant meant by “relied on a lack of evidence by the appellant.” Moreover, with respect to the third point, the appellant is mistaken in his understanding with respect to the interplay between the regulatory regime and prior Criminal Code convictions.

22In later references to the Charter of Rights, the appellant implicitly raised concerns under sections 8, 11 and 12 of the Charter, arguing that an impoundment based on an administrative suspension was “harsh and unreasonable punishment”, infringed the principle of “innocent until proven guilty”, breached the right to be protected from illegal search and seizure, the right to enjoyment of personal property and being protected from being punished twice for the same offence. The appellant did not provide any authority for his assertion that an administrative impoundment attracts Charter scrutiny.

23Several courts have previously dealt with the rights protected by sections 8, 11 and 12 of the Charter as they relate to impoundment of vehicles under regulatory regimes.

24With respect to s.8, the right to be secure against unreasonable search and seizure, the courts have held that the impoundment of a vehicle is an administrative act, with the purpose of attempting to ensure motorists comply with the regulatory scheme and as such is not a s.8 breach.²

25Section 11 deals with situations where a person is arrested, detained, charged or punished for an offence. The impoundment of a vehicle does not involve a criminal or quasi-criminal offence. The appellant is not facing a penal consequence. The cases have made it clear that a distinction must be drawn between penal and administrative proceedings. It is only penal proceedings that draw the attention of s.11 rights. Section 11 is not applicable in this case.

26In R. v. Wigglesworth³, the Supreme Court of Canada, in commenting on the applicability of s. 11 to administrative proceedings wrote the following:

There is a fundamental distinction between proceedings undertaken to promote public order and welfare within a public sphere of activity and proceedings undertaken to determine fitness or to obtain or maintain a licence. Where disqualifications are imposed as part of a scheme for regulating an activity to protect the public, disqualification proceedings are not the sort of “offence” proceedings to which s. 11 is applicable…

27Section 12 of the Charter states that “everyone has the right not to be subjected to any cruel or unusual treatment or punishment”. While acknowledging that there may be situations where s. 12 rights are engaged in a non-criminal context,⁴ the courts have been clear there is a very high standard or threshold for “cruel and unusual punishment” requiring the treatment or punishment to be “so excessive as to outrage standards of decency” and abhorrent or intolerable to society.⁵ The courts have been clear that punishment means a “true penal consequence” or a “sanction imposed in furtherance of the principles of sentencing.” First, the impoundment of the vehicle is not a “punishment.” Even if it were a “treatment” within the meaning of s. 12, it is clear that the impoundment of a vehicle does not meet the very high standard necessary to attract s. 12 scrutiny.

28With respect to the appellant’s position that I made an error of fact such that I would have reached a different result had the error not been made, again the appellant’s basis for this assertion is somewhat wanting. The appellant did mention in his materials that I erred in finding as a fact that the Registrar established that his licence was suspended resulting from a Criminal Code conviction. Having again reviewed the exhibits filed, I am satisfied that the Registrar presented documentary evidence showing the suspension for that conviction of the appellant’s licence which resulted in the impoundment.

29The appellant submitted the Registrar provided incorrect information at the hearing about the rules of deemed service of a notice of suspension. As I found as a fact that the appellant was incarcerated and therefore not served in 2012 with notice of his suspension for not completing a remedial program, the information about notice, whether correct or incorrect, was immaterial to my decision.

30Having reviewed the exhibits I am satisfied I did not make an error in law or fact such that the result would have been different if the error had not been made.

iii) The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result.

31As mentioned above, the appellant asserted the Registrar misinformed me about the method of service of the suspension notice. Additionally, the appellant submitted the Registrar was incorrect when they said it was difficult for them to get verification of service of the notice of suspension and that the appellant would have been given a copy of the notice when he was in court. Whether any of this is true of not was not relevant to my consideration as, was mentioned above, I found as a fact the appellant was not served in 2012 with the notice. Therefore, whether the information was correct or not, it would not have affected the result.

iv) There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

32There was nothing in the voluminous material provided by the appellant that disclosed new evidence that could not have been obtained previously and would likely have affected the result. In his reconsideration materials the appellant repeated the version of events he told at the hearing.

33As an adjudicator I can accept all, some, or none of a witness’s evidence. In this case I accepted the appellant’s evidence that he was incarcerated at the time the notice of suspension would have been sent and he therefore did not receive a notice in 2012. However, that does not mean that the suspension which is the subject matter of the impoundment was not in place. It was, and at the time he was stopped his licence was suspended pursuant to provisions that allowed for his vehicle to be lawfully impounded. His 2019 conviction for driving while suspended certainly suggests he was aware of the 2012 suspension from 2019 onwards.

34Although I accepted his evidence about his incarceration, there is little else, if anything, I found credible in the appellant’s evidence. I did not accept his explanations where it concerned either the issue of due diligence or exceptional hardship. To put it bluntly I did not believe the appellant.

35To succeed on a reconsideration request, at least one of the four grounds must be proven. In this case, because the appellant has requested reconsideration, the onus is on the appellant to prove his grounds and he has not done so.

Conclusion

36For reasons noted above, I deny the appellant’s request for reconsideration.

Footnotes

1. 1The Licence Appeal Tribunal. Animal Care Review Board and Fire Safety Commission Common Rules of Practice and Procedure (October 2, 2017; amended February 7, 2019)
2. 2R.v Drutz, 2009 ONCJ 537 at para. 56-58 (CanLll), Horsefield v. Ontario (Registrar of Motor Vehicles), 1999 CanLII 2023 (ON CA), and R. v. Nicolisi, 1998 CanLII 2006 (ON CA).
3. 3R v. Wigglesworth, 1987 Can Lll 41 (SCC) at para. 23
4. 4See for example Justice Sopinka’s comments in Rodriguez v. British Columbia (Attorney General), 1993 CanLII 75 (SCC)
5. 5R. v. Morrisey, 2000 SCC 39 at para. 26, R. v Smith, 1987 CanLll 64 (SCC) at para 6;