Sasha Fletcher v. Registrar of Motor Vehicles, 2022 CanLII 92748

Decision and Order

Date: 2022-09-27 Tribunal File Number: 14245/MVIA

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from the impoundment of a motor vehicle under section 55.1 of the Act for driving while suspended.

Between:

Sasha Fletcher Appellant

and

Registrar of Motor Vehicles Respondent

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances: For the Appellant: Sasha Fletcher, Self-represented For the Respondent: Stephen Grootenboer, Agent

Heard by teleconference: September 15, 2022

Reasons for Decision and Order

Background

1Sasha Fletcher (the "appellant") appealed the impoundment of her 2021 Mercedes-Benz (the "vehicle") under s. 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act") on August 10, 2022 for 45 days. At the time of impoundment, Trevis Sandy (the "driver") was driving the vehicle.

2The appellant appealed on the grounds that Mr. Sandy's driver's licence was not under suspension at the time of impoundment, and that the appellant exercised due diligence in attempting to determine that Mr. Sandy's licence was not under suspension.

Issues

3The first issue to be determined is whether, under s. 50.2(3)(b) of the Act, the driver's licence of the driver at the time it was detained in order to be impounded was not then subject to the condition described in paragraph 2 of subsection 55.1(1) of the Act.

4The second issue to be determined is whether, under s. 50.2(3)(c) of the Act, the appellant exercised due diligence in attempting to determine that the driver's licence of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension, or subject to a condition described in paragraph 2 of subsection 55.1(1).

Result

5I find that the appellant's evidence fails to establish that Mr. Sandy's driver's licence was not under suspension at the time of impoundment or that she exercised due diligence. The impoundment of the appellant's vehicle is confirmed.

Law and Analysis

6The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the "HTA") may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

7An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on ground (b), that Mr. Sandy's driver licence was not at the time of impoundment subject to the condition described in paragraph 2 of subsection 55.1(1) of the Act, and that the appellant exercised due diligence in attempting to determine that Mr. Sandy's driver's licence was not, at the time of impoundment, subject to a condition described in paragraph 2 of subsection 55.1(1) of the act, specifically, subject to a condition requiring an interlock device.

Driver's Licence Under Suspension

8Paragraph 2 of subsection 55.1(1) paragraph 2 of the Act provides that a police officer shall detain for purposes of impoundment a vehicle that is being driven by a person in contravention of a condition imposed on his or her driver's licence that prohibits him or her from driving a vehicle that is not equipped with an ignition interlock device (an "IID").

9To succeed on this ground of appeal, the appellant must establish that Mr. Sandy's driver's licence was not subject to an IID condition on August 10, 2022.

10The appellant testified that she knew at one point that Mr. Sandy had an IID condition on his driver's licence but assumed that it had been removed and was not aware that the IID condition was still on his licence. The appellant also said that the Ministry of Transportation (the "MTO") should make it more clear to people how to remove the IID condition from one's driver's licence.

11Mr. Sandy also testified that he was not aware that the IID condition was still on his driver's licence, and he only became aware of this when the vehicle was impounded.

12Records filed by the respondent confirm that on August 10, 2022, Mr. Sandy's driver's licence was subject to a IID condition and that the MTO sent Mr. Sandy a letter dated October 26, 2021 informing him that the IID condition is outstanding and would expire on his eligibility date. Although the appellant testified that she found the language of this letter unclear, the letter also provides phone numbers and a website to contact if further information is required.

13Excerpts from the MTO's website were filed by the respondent. The website provides information about how a driver can apply to have an IID condition removed from a licence. The starting point is an application from the driver whose licence is subject to the IID condition.

14The website contains a clear warning as follows: "If you don't apply to remove the condition from your licence, it will stay on your licence. This means you will only be able to drive vehicles that are equipped with an approved ignition interlock device or be subject to penalties under the Highway Traffic Act."

15Although the appellant and Mr. Sandy testified that Mr. Sandy experienced a medical condition as a result of the COVID 19 pandemic and was not well enough to apply to have the IID condition removed from his driver's licence, the appellant's testimony was that Mr. Sandy is now well enough to work and appears to have been able to drive the appellant's vehicle on August 10, 2022. However, in August, 2022, he failed to apply to have the IID condition removed from his licence, something which he has been able to do since August 10, 2022. If his illness prevented him from applying to remove the IID condition for a period of time, then Mr. Sandy could have been provided with help through his caregiver at that time, or the matter could have been addressed when he felt better and was able to drive again.

16Based on the testimony of the appellant and Mr. Sandy, it is clear that neither of them knew or made any effort to find out how to remove the IID condition until after the vehicle was impounded. As the appellant candidly admitted, it was not "top of mind".

Due Diligence

17To succeed on this ground of appeal, the appellant must show that she took reasonable steps to determine that the licence of the driver was not suspended and that it was valid. The circumstances of each case will dictate what steps would amount to due diligence.

18Based on the appellant's testimony, I find that the appellant did not take reasonable steps, or any steps at all, to determine that Mr. Sandy's driver's licence was not still subject to the IID condition and as a result, has failed to establish, on a balance of probabilities, that she exercised due diligence in attempting to determine that Mr. Sandy's driver's licence subject to the IID condition at the time the vehicle was impounded within the meaning of s. 50.2(3)(c) of the Act.

19The appellant admitted that she assumed the IID condition was no longer on Mr. Sandy's driver's licence. The appellant said she did not look at his licence to see if the IID condition was printed there, never saw any of the correspondence sent to him from the MTO or ever asked him about whether he had received any correspondence from the MTO, and did not contact the MTO or go on its website to find out about process to apply to remove the IID.

20Although the appellant suggested that her assumption that the IID condition was no longer on Mr. Sandy's driver's licence was reasonable, I disagree. The onus is on the appellant as the owner of the vehicle to exercise due diligence to determine if the intended driver of her vehicle has a valid licence, one that is free of conditions and restrictions such as the IID restriction here. An assumption does not amount to due diligence but is the opposite, an opinion formed without inquiry.

Order

21Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant's vehicle.