Iouri Solmanov v. Registrar of Motor Vehicles, 2023 CanLII 60268

Licence Appeal Tribunal File Number: 14923/MVIA

An Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment Pursuant to section 55.1 of the Act.

Between:

Iouri Solmanov Appelant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Laura Hodgson, Member

Appearances:

For the Appellant: Ernst Ashurov, Counsel

For the Respondent: Leila Pereira, Agent

Heard by Teleconference: June 23, 2023

OVERVIEW

1The appellant’s 2018 Lexis was detained and impounded on May 2, 2023, for 180 days under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “HTA”). This section allows a police officer to detain and impound a motor vehicle if the licence of the driver is suspended for a Criminal Code related reason. Here, the appellant’s wife Natalia Korzh was driving the vehicle when stopped by police. According to Ministry of Transportation (“MTO”) records her driver’s licence was under suspension at that time.

2The appellant appeals on the ground that Ms. Korzh’s licence was not under suspension when the vehicle was detained. The appellant submits that his wife had successfully appealed a 2015 impaired driving conviction on July 22, 2016.

3The issue in dispute is whether the license of the driver of the appellant’s vehicle was suspended within the meaning of s. 50.2(3)(b) of the HTA when the vehicle was impounded.

4After careful consideration and for the reasons given below, I find the appellant failed to establish that the driver’s licence was not under suspension at the time of impoundment. The appeal is dismissed and the impoundment of the vehicle confirmed.

The Driver’s License Was Suspended

5Under s.55.1(1)1 of the HTA, a police officer shall impound a motor vehicle if the officer is satisfied that the licence of the driver is under suspension under s. 41, 42 , or 43 of the HTA.

6Section 41(1) of the HTA provides that the driver's licence of a person who is convicted under certain prescribed offences, including drinking and driving offences under the Criminal Code, is suspended (one year for first conviction, three years upon a subsequent conviction and indefinitely upon the third conviction).

7Section 50.2 (1) of the HTA provides that the owner of an impounded vehicle may appeal an impoundment to this Tribunal. On appeal, the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle (HTA s. 50.2 (5)).

8Pursuant to s. 50.2 (3) of the HTA, there are only four grounds on which an owner may appeal an impoundment. Here, the appellant relies on s. 50.2(3)(b).

That the driver’s licence of the driver of the motor vehicle at the time it was detained was not then under suspension.

9It is not disputed that the appellant’s wife, Ms. Korzh, was driving the appellant’s vehicle when it was detained and impounded by police on May 2, 2023. The appellant acknowledges that Ms. Korzh’s licence was originally suspended by MTO because she was convicted of the criminal offences of impaired driving and over 80 on October 2, 2015. Following the convictions for these offences, she was subject to a 12 month Criminal Code driving prohibition.

10These convictions and driving prohibition were, however, ultimately stayed by the Superior Court of Justice. Documentation provided by the appellant established that Ms. Korzh appealed the convictions. In a Decision dated July 22, 2016, the Superior Court of Justice stayed the charges and the driving prohibition. Counsel indicated that, when obtaining the documentation in preparation for this matter, he discovered that the Superior Court of Justice had mistakenly indicated in their system that Ms. Korzh’s appeal had been dismissed. It does not appear that the MTO records were ever updated to reflect the stay of charges and driving prohibition.

11The appellant did not testify and there was no evidence of any steps taken by him or his wife, the driver of his vehicle, to clarify her licence status with MTO. There is also no evidence that the Notice of Appeal was filed with MTO pursuant to s. 55 of the HTA.

12The appellant submits, quite simply, that because of the stay of his wife’s criminal conviction in 2016, her license was not under suspension at the time of impoundment on May 2, 2023. Counsel for the appellant stated that because Ms. Korzh’s convictions were stayed in 2016 there was “no suspension”. Further he submits that the driver’s licence was not “criminally suspended” at the time of the impoundment.

13In the respondent’s submission, based on the MTO records available, the driver’s license was under suspension at the time of the impoundment. The appellant’s wife had provided the MTO with no notice of the appeal and the ultimate stay of the Criminal Code convictions and prohibition.

14The respondent established that on May 2, 2023, the date of the impoundment, MTO records indicated that the driver of the appellant’s vehicle, Ms. Korzh’s licence was suspended. Under the HTA, a police officer shall impound a motor vehicle for a minimum of 45 days if the officer is satisfied that it was being driven by a driver whose licence was under suspension for reasons set out in s.55.1(1) of the Act. Here the impoundment was for 180 days because there had been two or more impoundments of a vehicle owned by the appellant within two years (Act, s. 55.1(3) and O. Reg 631/98, s.1).

15The respondent established that the appellant’s vehicle had been impounded twice previously after being driven by his wife while her license was suspended. On October 7, 2020, the appellant’s vehicle was impounded for 45 days because his wife drove his vehicle while her licence, according to MTO records, was suspended (related to the 2015 Criminal Code conviction). The appellant’s vehicle was again impounded on March 10, 2022, when his wife drove his vehicle with a suspended license (again based on the 2015 Criminal Code conviction). According to the Notices to Registrar, on both occasions the driver failed to produce a driver’s licence. Ms. Korzh’s Extended Driving Record indicates that she had not renewed her license since 2009.

16The respondent produced two Notices of Suspension that were issued to the appellant’s wife. One is dated October 9, 2015, prior to the appeal of the convictions. The second is dated September 26, 2016 - three months following the stay of the impaired driving charges. That Notice of Suspension indicates that Ms. Korzh’s license was suspended for failing to complete a remedial program (stemming from the 2015 conviction). The Notice of Suspensions indicate that Ms. Korzh’s licence was under suspension and she could not drive. Both notices include MTO telephone numbers.

17The HTA suspension regime and Criminal Code convictions/driving prohibitions are two separate but related regimes (see R. v. Fernandes, 2013 ONCA 436 at paras. 98 to 100). HTA suspensions are administrative penalties and not “criminal suspensions” as suggested by the appellant. This conflates the two regimes.

18Under the Criminal Code, upon conviction for impaired driving offences, a person can be subject to a driving prohibition. Under the HTA, as a result of the convictions, the driver’s licence is suspended. In most cases a Criminal Code driving prohibition will automatically be followed by a parallel provincial driving suspension. The interplay between these two systems creates complexities and are often not easy for a lay person to understand. They are however two separate systems.

19Ms. Korzh’s MTO records appear to have been based on an erroneous court record that indicated the appeal of her convictions was dismissed. MTO had no notice Ms. Korzh’s criminal convictions for impaired driving and driving prohibition had, in fact, been stayed. Ms. Korzh did not serve the Notice of Appeal on the Ministry pursuant to s.55 of the HTA. Further, there is no evidence of any attempts by Ms. Korzh to rectify the records even after she received a notice that her license was suspended. There is no evidence of any attempts by Ms. Korzh to clarify her license status even after her husband’s vehicle was impounded on two prior occasions because MTO records indicated her license was suspended. Nor did Ms. Korzh attempt to renew her license. Had she done so she would have learned of her license “suspended” status and rectified the error.

20This case is clearly distinct from Husain v. Registrar of Motor Vehicles, 2021 ONLAT HTA MVIA 1314, where the appellant made several attempts to rectify his MTO records and had appealed prior impoundments. That appellant had, in fact, been advised by MTO staff to drive with his stay order and he did so. In that case, this Tribunal found that the MTO clearly had notice of the stay of criminal charges. As noted, in the circumstances of this case there is no evidence of the driver taking any active steps to notify MTO.

21Counsel for the appellant also asserts that the appellant should not be responsible for his wife’s failure to correct her information with MTO. Driving is a privilege in Ontario and is so expressly stated by s. 31 of the HTA. One of the multiple obligations imposed upon the owner of a motor vehicle is to ensure the vehicle is not driven by persons who do not have a valid driver’s license. There was no evidence from the appellant that he took any steps to determine the validity of his wife’s license or that he, in fact, believed she had a valid license.

22Again, I appreciate that the driving regimes in Ontario are overlapping and complicated. There may be circumstances where a driver’s license can not be considered ‘suspended’ under the HTA even if MTO records so indicate (e.g., as in Hussain, supra where the MTO was made aware of the stay of criminal charges). In the circumstances of this case, however, where MTO relied on incorrect court documents and was never notified by the driver of the error, I find the appellant failed to establish that the driver’s licence was not under suspension at the time of impoundment.

ORDER

23The appeal is dismissed and the impoundment of the vehicle confirmed.