Licence Appeal Tribunal File Number: 14914/MVIA

In the matter of an 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:

Sharon Gail Ravenda Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

ADJUDICATOR: Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant: Roderick Flaherty, Counsel

For the Respondent: Andrew Sookhoo, Representative

Hearing by Teleconference: June 9, 2023

OVERVIEW

1Sharon Gail Ravenda, the appellant, appealed from the impoundment of her 2011 GMC, the vehicle, on May 14, 2023 for 45 days. The Registrar alleges that, at the time it was impounded, the appellant was driving the vehicle in contravention of a condition on her driver's licence that prohibits her from driving a motor vehicle that is not equipped with an ignition interlock device ("IID").

2The appellant appeals on three grounds: that the driver's licence of the driver of the vehicle at the time it was detained in order to be impounded, in this case her own driver's licence, was not then subject to an IID condition, that she exercised due diligence in attempting to determine that her driver's licence was not then subject to an IID condition, and that the impoundment will result in exceptional hardship to her, specifically financial, and to her 82 year old mother because she needs her vehicle to take her mother to regular doctor visits, to the drugstore and further hospital stays at any moment.

ISSUES

3The issues in dispute are:

i. Issue 1: Was the drivers licence of the driver not then under suspension within the meaning of s. 50.2(3)(b) of the HTA?

ii. Issue 2: Did the appellant exercise due diligence in accordance with s. 50.2(3)(c) of the HTA?

iii. Issue 3: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of Ontario Regulation 631/98 ("Regulation")?

RESULT

4I find that the driver's licence of the driver at the time it was detained in order to be impounded, specifically the appellant's driver's licence, contained an IID condition prohibiting her from driving a motor vehicle that is not equipped with an ignition interlock device and that the appellant was in breach of the IID condition of her driver's licence at the time of impoundment. I find that the appellant did not exercise due diligence. I find that the impoundment will not result in exceptional hardship.

ANALYSIS

5The 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.

6An 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 grounds (b) 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, (c) that she 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, and (d), that the impoundment will result in exceptional hardship.

7Section 55.1(1) provides that where an officer is satisfied that a person driving a motor vehicle on a highway while his or her driver's licence is under suspension, or in contravention of a condition that prohibits him or her from driving a motor vehicle that is not equipped with an ignition interlock device, shall detain the vehicle and shall impound it under s. 55.1(3).

Issue 1: Was the driver's licence of the driver not then under suspension within the meaning of s. 50.2(3)(b) of the HTA

8It is not disputed that the appellant was driving the vehicle at the time of the impoundment.

9However, the appellant's position is that the IID condition on her licence was removed in 2016 and was no longer a condition on her driver's licence at the time of impoundment.

10The Registrar's position is that the IID condition was not removed from the appellant's driver's licence until May 15, 2023, the day after the impoundment of the vehicle.

11I find that the appellant was driving the vehicle in breach of the IID condition to which her driver's licence remained subject at the time of impoundment and, as a result the impoundment of the vehicle was lawful under s. 55.1.

12The appellant gave her evidence at the hearing in an affidavit sworn June 6, 2023, supplemented by her testimony at the hearing. The appellant testified that following her driver's licence suspension in 2014 as a result of a driving offence committed in the United States, she was not to drive at all for one year in Ontario and also a condition was imposed on her Ontario driver's licence that for the first year after she got her driver's licence back, she could only drive a vehicle equipped with an IID device.

13The appellant said that she drove for one year with the IID device and then had it removed by Speedy Auto (the "garage"). The appellant testified that her driver's licence was re-issued after the IID had been removed and she took all reasonable steps to make sure her licence was re-instated. The appellant swore in her affidavit that "I am sure that I filed and signed whichever papers were required at that time although, I have no recollection of doing so." The appellant attached as Exhibit A to her affidavit a notice that she swore "...is a record from the ministry proving that a removal notice was filed Aug 15, 2016." (the "2016 Notice").

14The appellant testified that she believed that she had completed all the paperwork and taken all steps necessary to drive but unbeknownst to her, her licence had not been re-instated. The appellant found this out on the day the vehicle was impounded.

15The appellant testified that she remembers the day the IID was removed from her vehicle. She believed she followed all the rules and gave paperwork to the garage which she said should have known what to do.

16The appellant swore in her affidavit that she was convicted of speeding on January 22, 2016 as well as no valid plate on August 31, 2017 and swore "I have no recollection of these charges and apparently there was no issue of restrictions on licence on those occasions.

17The appellant's brother Gary Sibbald testified that he assisted the appellant in having the IID condition removed from her driver's licence and this was accomplished within 24 hours of the impoundment. Mr. Sibbald confirmed in cross-examination that he went to the Service Ontario office with the appellant on May 15, 2023 to have the condition removed and the process took about one hour.

18The Registrar filed the records showing that at the time of the impoundment, the appellant's G licence was subject to a condition that a mandatory ignition interlock device is required. The Registrar's documentary evidence also establishes that, at the time of impoundment, the appellant was driving the vehicle which was not equipped with an ignition interlock device.

19The Registrar also filed a copy of the 2016 Notice attached to the appellant's affidavit as Exhibit A, a blank copy of the Ontario Ministry of Transportation form that was sent to the appellant with the 2016 Notice, together with documentation confirming that the appellant had applied to remove the IID condition from her driver's licence on May 15, 2023.The Registrar's position is that the 2016 Notice confirms that correspondence was sent to the appellant with a copy of the blank application to remove the condition but that the appellant did not complete it and take it in person to Service Ontario to apply to have the IID condition removed from her licence in 2016 or at any time until May 15, 2023 after the impoundment.

20Based on the 2016 Notice which both parties rely on, and the other documentation filed by the Registrar including the May 15, 2023 record of removal of the IID condition and the blank copy of the application to remove the condition from a driver's licence, I find that the 2016 Notice was a reminder notice confirming that on August 15, 2016 the Registrar notified the appellant that she had to apply to remove the IID condition from her driver's licence. According to the Registrar's records since 2016, it appears that the appellant failed to apply to remove the IID condition from her driver's licence until after the impoundment. As a result, the appellant's driver's licence remained subject to the active IID condition until she applied to remove this condition on May 15, 2023 and the condition was in effect at the time of the impoundment. The application which I find more likely than not was sent by the Registrar to the appellant on August 15, 2016 contains a plain warning in bold letters "If you do not apply for removal of the licence condition, it will remain on your licence and you must only drive vehicles that are equipped with an approved ignition interlock device, or be subject to penalties under the Highway Traffic Act." The appellant failed to do so until May 15, 2023.

21The appellant submits that it is possible that the appellant sent in the application to remove the IID condition and it was not processed by the Registrar. This submission is not supported by the evidence. Firstly, the application to remove conditions indicates that it must be completed and returned in person to any Service Ontario location. That is what the appellant did on May 15, 2023.

22Secondly, the appellant swore in paragraph nine of her affidavit that she "...filed and signed whichever papers were required at that time although, I have no recollection of doing so. Attached as Exhibit A is a record from the Ministry proving that a removal notice was filed Aug 15, 2016." The appellant does not have a recollection of "filing" an application to remove the IID condition from her driver's licence. Further, Exhibit A, the 2016 Notice does not establish that she "filed and signed" the required papers. Based on the Registrar's submission, which I agree with, I find that it establishes the opposite – that on August 15, 2016 the Ministry sent correspondence to the appellant notifying her that she needs to complete the forms in order to have the IID condition removed from her licence. The appellant failed to do so until May 15, 2023.

23Thirdly, there is no evidence that the appellant has any recollection of sending in the application to remove the IID application in 2016 or at any time prior to the impoundment. There is no documentary evidence of any application being completed or given to the Registrar in person as required prior to May 15, 2023. There is no corroborating testimony from any witness that this occurred.

24I find that the appellant has failed to prove on a balance of probabilities that the driver's licence of the driver not then under suspension within the meaning of s. 50.2(3)(b) of the HTA.

Issue 2: Did the appellant exercise due diligence in accordance with s. 50.2(3)(c) of the HTA

25I find that the appellant did not exercise due diligence in accordance with s. 50.2(3)(c) of the HTA in attempting to determine that she had a valid driver's licence that would allow her to drive the vehicle prior to driving on the date of impoundment.

26To succeed on this ground of appeal, the appellant must show that he or she took reasonable steps to determine that the driver's licence of the driver of the motor vehicle at the time it was impounded did not have an IID condition that was not being complied with. The circumstances of each case will dictate what steps would amount to due diligence. Here, the appellant was the driver of the vehicle at the time of impoundment and it was the status of her own driver's licence that she must show she took reasonable steps to ensure was not subject to an IID condition not being complied with.

27Although the appellant submits that she exercised due diligence in attempting to determine if the IID condition on her driver's licence had been removed because she took all reasonable steps to the best of her ability to deal with the removal of the IID condition, I find that the evidence does not support this.

28The appellant did not complete and submit in person to Service Ontario the application for removal of the IID condition sent to her on August 15, 2016 as established by the 2016 Notice.

29The appellant hired a garage to remove the IID from her vehicle as set out in her affidavit. At the hearing the appellant testified that she is not the "greatest person for filing paperwork" and said that the garage that removed the IID should have known what to do to remove the condition from her driver's licence. The appellant also said she had been stopped by the police several times since the IID had been removed from the vehicle and there had been no issue raised by the police about the IID condition on her driver's licence.

30The appellant did not describe any efforts she made to check whether the IID condition had been removed from her driver's licence as opposed to efforts she made to have the IID removed from the vehicle. As a result I find that the appellant did not do anything to check whether the IID condition on her driver's licence had been removed. Instead, the appellant relied on the garage to know what to do and the police not having informed her of any IID condition on her driver's licence.

31Although the appellant submits that she did not know that she was driving with a driver's licence subject to an IID condition, ignorance of this is not an excuse.

32As a result, I find that the appellant did not exercise due diligence in accordance with s. 50.2(3)(c) of the HTA in attempting to determine that if her driver's licence was still subject to the IID condition.

Issue 3: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation

33I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

34Section 10 of O. Reg. 631/98 (the "Regulation") sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

...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.

35If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must consider whether 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.

36I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.

37Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

38The appellant and Mr. Sibbald both testified that they live in the same household with their mother although Mr. Sibbald has only resided there temporarily since approximately March 2021 and has plans to leave during the impoundment period. Mr. Sibbald owns his own vehicle and both he and the appellant testified that he has provided some transportation to the appellant and to his mother during the impoundment period.

39Alternative transportation, in addition to Mr. Sibbald, is available to the appellant and her mother. The appellant's mother owns a vehicle and the appellant and Mr. Sibbald have also been using their mother's vehicle to take care of their mother's needs during the impoundment period. For example, Mr. Sibbald said he and the appellant took their mother to the hospital in their mother's vehicle when she required a recent eight-day hospital stay. Although the appellant testified that she prefers not to drive her mother's vehicle, she admitted that this is a matter of personal preference and that she will have access to this vehicle when Mr. Sibbald leaves to go back to his own residence. The appellant also said that although she prefers not to use public health services, ambulance service is available where she and her mother live, as well as bus service. The appellant testified that arranging alternate transportation is inconvenient for her. Inconvenience is not a factor which the Tribunal can take into consideration.

40The appellant testified that the costs of the impoundment is a financial hardship for her as she is not employed.

41I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.

42I find that the appellant has alternatives to the impounded vehicle available during the impoundment period including the use of her mother's vehicle, transportation provided by Mr. Sibbald, publicly available transportation and ambulance service. The appellant's mother has been able to access medical care, including the hospital, during the impoundment period through alternative transportation.

43Further, because at the time of impoundment the appellant was driving the vehicle in Ontario in contravention of a condition that prohibits her from driving a motor vehicle that is not equipped with an ignition interlock device, s. 10(3)(d) of the Regulation provides that I may not consider financial, employment and education or training losses listed in s. 10(2) of the Regulation to the appellant because she was driving the vehicle at the time of impoundment of the vehicle in contravention of a condition on her driver's licence.

44Although the appellant submits that the Tribunal should be able to grant relief to the appellant because she says she did not know that her driver's licence was still subject to the IID condition, I find on the facts of this case that the appellant has not met her onus to establish this ground of appeal.

Conclusion

45The appellant has not established any of her grounds of appeal. The evidence is clear that the IID condition remained on the appellant's driver's licence and prohibited her from driving her vehicle at the time of impoundment within the meaning of s. 50.2(3)(b) of the HTA.

46The appellant has not established that she exercised due diligence in attempting to determine that her driver's licence was not subject to the IID condition when the vehicle was detained in order to be impounded, within the meaning of s. 50.2(3)(c) of the HTA.

47I also find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

48Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant's vehicle.