Wayne Phillips v. Registrar of Motor Vehicles, 2023 CanLII 81856

Licence Appeal Tribunal File Number: 15123/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 pursuant to section 55.1 of the Act.

Between:

Wayne Phillips

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATORS:

Rebecca Hines

APPEARANCES:

For the Appellant:

Wayne Phillips, Appellant

For the Respondent:

Leila Pereira, Agent for the Registrar

Heard by Teleconference:

August 22, 2023

OVERVIEW

1Wayne Phillips (the "appellant") appeals the impoundment of his 2009 Ford F-150 truck on July 29, 2023, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "HTA").

2The owner of a vehicle which has been impounded in accordance with s. 55.1 may pursuant to s. 50.2 of the HTA, appeal the impoundment and request an order from the Licence Appeal Tribunal (the "Tribunal") that the Registrar release the vehicle.

PROCEDURAL ISSUE

3The grounds for the appeal were not clearly set out in the Notice of Appeal filed by the appellant. In the appeal, he provided a very brief statement indicating that the impounded vehicle was "the only vehicle the family has which his wife needed at home." At the outset of the hearing, the appellant was not clear on what grounds he was relying on for the purposes of the appeal. Since the appellant was self-represented, I provided him with a break to review the materials sent by the Tribunal and to confirm the grounds of appeal. Upon his return, he confirmed he was ready to proceed with the hearing.

4The appellant confirmed that he was appealing under two of the grounds set out in 50.2(3) of the HTA, which are (b.1) 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 subject to the condition described in paragraph 2 of subsection 55.1(1); and (c) that the owner of the motor vehicle 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. Despite the fact that the above grounds were not listed or identified in the notice of appeal, the respondent did not oppose them being addressed in the hearing and the hearing proceeded. The appellant must prove, on a balance of probabilities, that he satisfies at least one of these grounds, for the Tribunal to order the vehicle released.

ISSUES

5The issues in dispute are:

1. Was the appellant's driver's licence subject to the condition that his vehicle be equipped with an ignition interlock device at the time of the impoundment?

2. Did the appellant exercise due diligence in attempting to determine that his licence was valid and not under suspension at the time of the impoundment?

RESULT

6I find that the appellant's licence was still under condition as of the date of the impoundment. Further, that he did not exercise due diligence in attempting to determine that his licence was not still under condition at the time of the impoundment. As a result, I confirm the impoundment.

ANALYSIS

The appellant's licence was still under conditions as of the date of the impoundment.

7The appellant's vehicle was impounded pursuant to s. 55.1(1) 2 of the HTA, because he was driving the vehicle in contravention of a condition imposed on his driver's licence which required that his vehicle be equipped with an ignition interlock device.

8The respondent presented unrefuted evidence that the appellant's licence was still under the above condition when the vehicle was impounded.

9Under s. 55.1 of the HTA, a police officer is required to impound a motor vehicle if the officer is satisfied that it was being driven by a person whose licence was under suspension (or condition) because of certain driving related Criminal Code convictions.

10The appellant testified that as of the date of the impoundment he was not aware that his licence was still under the above condition despite the fact that his physical licence still noted the condition. He believed that his licence had no conditions because he had completed the Ministry of Transportation's (Ministry) remedial driving program in 2020. As a result, he did not think the condition still applied to his driver's licence. Further, he submits that he contacted Service Ontario and was unable to get an explanation for why the condition had not been lifted.

11I find the evidence submitted by the respondent supports that at the time of the impoundment of the vehicle the appellant's driver's licence was still under the condition that his vehicle be equipped with an ignition interlock device. Although I believe the appellant that he thought his licence was no longer under condition, I find his appeal under this ground fails because the evidence does not support it. To date, the appellant's licence is still under the condition that his vehicle be equipped with an ignition interlock device. I will now address whether the applicant exercised due diligence in attempting to confirm the status of his licence.

The appellant did not exercise due diligence in attempting to determine that his licence was not still under condition at the time of the impoundment.

12This ground of appeal requires the owner of the vehicle to show that they took reasonable steps to determine that the driver's licence was not suspended or under a condition. In this context, due diligence requires more than making assumptions of the facts. It requires steps to be taken by the owner to confirm that the licence was not suspended and that it was valid. The specific steps that amount to due diligence depend on the circumstances of each case.

13As noted above, the appellant testified that he contacted Service Ontario prior to the impoundment to inquire about the status of his licence, but nobody was able to assist him or explain why the condition was still noted on his licence. The respondent submits that this fact is irrelevant because Service Ontario was the wrong place to contact. Instead, he should have contacted the Ministry or conducted a search on the Ministry's database. I find the appellant to be a credible witness and believe that he attempted to find out the status of his licence by contacting Service Ontario.

14The respondent submits that the appellant should have been aware that the condition of his licence had not been removed because the Ministry sent him a letter on August 24, 2021, informing him of the requirements for the removal of the ignition interlock condition. The respondent relied on a "sample letter" which advised the appellant that he might be eligible to have the ignition interlock condition removed from his driver's licence, and provided the following instructions and information about the process:

a) Submit a completed substance use assessment form by his treating physician, specialist, or nurse practitioner (the form was attached). The contact information for the Ministry's Medical Review Unit was provided as was instructions for how to submit the form.

b) It stated that the Ministry's Medical Review Unit would then review the medical information and provide a letter advising of the outcome.

c) It advised the appellant that if he failed to submit the form the ignition interlock condition would remain on his licence.

d) It confirmed that that the minimum ignition interlock period has been served with no program violations and outlined his obligations not to tamper with the equipment.

15During cross-examination, the appellant stated that he did not receive this letter and was not aware that he had to take any additional steps to have the condition on his licence removed. The respondent confirmed the appellant's home address and that he opens his mail regularly. Moreover, the appellant confirmed that he received the initial package from the court regarding the remedial driving program. Of significance, the respondent submitted a "sample letter" not the letter sent to the appellant. At the conclusion of both parties' submissions, I asked the respondent whether there was anything in its submissions which could confirm that the letter was sent on August 24, 2021. The respondent advised that this information is not available because it is protected by the Freedom of Information and Protection of Privacy Act, R.S.O.1990, c. F.31. As a result of the above factors, I am not persuaded that the appellant received this letter and accept on a balance of probabilities that he was not aware of the additional steps he had to take to have the ignition interlock condition removed from his licence.

16The appellant also testified that he contacted the Ministry's Driver Improvement Office in June 2023, to inquire about the status of his licence and that they confirmed that he completed all of the steps required in the program. He also testified that an employee from the Ministry sent him an email confirming same. The respondent accepted the appellant's testimony regarding this as being truthful. The appellant submits that because of this communication with the Driver Improvement Office he was of the belief that his licence no longer had conditions.

17Upon the conclusion of the applicant's testimony, I inquired about whether this email was previously served on the respondent and filed with the Tribunal. The respondent submits that it was not. The appellant asserts that he thought he had previously served the email on the respondent but could not confirm. I asked the appellant to submit the email to the respondent and Tribunal and took a recess so that the respondent could review the document and make submissions on whether it should be admitted as an exhibit.

18The respondent opposed the appellant's reliance on this email on the basis that it was not served two days prior to the hearing and was in non-compliance with the Licence Appeal Tribunal's Rules of Practice and Procedure ("Rules"). Further, the respondent argues that this email is not relevant to the issue before me because it simply confirms that the appellant completed the program not that the condition of his licence had been removed. Therefore, this email is not relevant to the appeal. The appellant submits that the email is relevant because it supports that he was taking steps to look into the status of his licence prior to the impoundment of his vehicle. I admitted the email into evidence because I find it relevant to the issue before me. Further, the respondent is not prejudiced by it because it already acknowledged the truth of the appellant's testimony about it.

20An email from the Ministry to the appellant dated June 12, 2023, states "as per our phone conversation, you have completed the full 3 steps of the convicted impaired Back on Track program, which includes the initial phone assessment, the treatment workshop, and the six-month follow-up appointment. Your assessment was completed on December 14, 2019. Your follow up appointment was completed on June 24, 2020." Although this email confirms that the appellant completed the program, I find it does not support that his licence was no longer under condition. It is clear that the appellant took some steps to inquire about the status of his licence through Service Ontario and by contacting the Ministry. However, I do not find the steps taken support that he exercised due diligence on a balance of probabilities in confirming that his licence was no longer under the condition that his vehicle be equipped with the ignition interlock device prior to the impoundment. As set out above, establishing reasonable care or due diligence in the circumstances, must relate to the specific issue that led to a suspension or removal of a condition on the licence.

21For all of the above-reasons, I find the appellant has not met his onus in proving that he exercised due diligence to find out the status of his licence prior to the impoundment of the vehicle.

ORDER

22Pursuant to s.50.2(5) of the Highway Traffic Act, I confirm the impoundment of the appellant's vehicle.