Jayde Hancock v. Registrar of Motor Vehicles, 2024 CanLII 13077

Licence Appeal Tribunal

Licence Appeal Tribunal File Number: 15604/MVIA

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 that Act

Between:

Jayde Hancock Appellant

-and-

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Jeffery Campbell, Vice-Chair

Appearances:

For the Appellant: Jayde Hancock, Self-represented For the Respondent: Sadia Ashraf, Agent

Heard by teleconference: February 16, 2024

OVERVIEW

1Jayde Hancock (the "appellant") appeals the 45-day impoundment of her 2010 Nissan Rogue (the "vehicle") on January 17, 2024, under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the "Act"). At the time of the impoundment, the vehicle was being driven by the appellant who was driving while her licence was under suspension due to a criminal conviction.

ISSUES

2The issues to be determined are:

i. Whether 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, under s. 50.2(3)(c) of the Act.

ii. Whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.

RESULT

3I conclude that the appellant exercised due diligence and therefore order the Registrar to release the vehicle. I do not need to decide whether the impoundment will result in exceptional hardship.

EVIDENCE AND ANALYSIS

Issue 1 - The appellant exercised due diligence in accordance with [s. 50.2(3)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html#sec50.2subsec3_smooth)(c) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html).

4The burden of proof is on the appellant to establish on the balance of probabilities, which means that it is more probable than not, that she exercised due diligence in attempting to determine if the Appellant had a valid driver's licence.

5In the context of an appeal under s. 50.2(3)(c) of the Act, due diligence means taking all reasonable care, and what a reasonable person would have done in the same or similar circumstances. Due diligence does not require perfection.

6Whether the ground of due diligence has been made out is highly fact-specific, and whether efforts are considered to be reasonable will depend on the circumstances.

7Examples of what reasonable actions might be in these circumstances can be found in the Tribunal's decision in 10719 v. Registrar of Motor Vehicles, 2017 CanLII 35348 (ON LAT):

There is a range of actions for a vehicle owner to check the status of another person's driver's licence before letting that person drive their vehicle. This could range from asking the person if they have a valid driver's licence, asking to see or examine a person's driver's licence, or using the Ministry's telephone or online checking service and paying a small fee to verify the status. The level of inquiry and action required will depend on the nature of the relationship between the owner and the driver, as well as on the situation – for example, whether there was an indication that the driver had a past history of licence suspensions.

8The Registrar presented evidence which established that, on June 19, 2022, the Appellant was charged with Dangerous Driving as well as driving with more than 80 mgs of alcohol. In addition to the criminal charges, the Appellant received a 90-day Administrative Driver's Licence Suspension (the "ADLS") which was scheduled to expire on September 17, 2022. The Appellant presented evidence which established that, on April 4, 2023, she plead guilty to, and was convicted of, Dangerous Driving as well as driving with more than 80 mgs of alcohol.

9The Registrar presented evidence which established the Appellant's driver's licence was subsequently suspended until April 4, 2025. I am therefore satisfied that the vehicle was validly impounded.

10From the evidence and the testimony of the Appellant, the Appellant's confusion between the ADLS and her criminal charges, as well as multiple errors on the part of others, led the Appellant to believe, at the time of the impoundment, that her driver's licence was not under suspension at the time of the impoundment.

11To begin, it appears from a letter from the Ministry of Transportation (the "Ministry") to the Appellant dated March 31, 2023, that the ADLS had been delayed due to COVID protocols. Although the contents of that letter are somewhat unclear, the Appellant testified that her legal counsel advised her that, based upon that letter, if the Appellant plead guilty to her criminal charges, she would be able to drive if conditions were met including having an ignition interlock system installed in her vehicle. The Appellant presented an email from her counsel advising that, if she plead guilty prior to May 1, 2023, she would be eligible for the ignition interlock system. Based on this, on April 4, 2023, the Appellant plead guilty to the charges of Dangerous Driving and driving with more than 80 mgs of alcohol.

12On April 4, 2023, the Appellant received a Prohibition Order from the Ontario Court of Justice advising of her prohibition from driving for a period of two years, ending April 4, 2025. The Appellant testified that, because of a clause on the Prohibition Order, she believed that if she was registered in an alcohol ignition interlock device program, the prohibition would no longer be prohibited from driving. That clause reads:

"(2) No person commits an offence under subsection (1) arising out of the operation of a motor vehicle if they are registered in an alcohol ignition interlock device program established under the law of the province in which they reside and they comply with the conditions of the program."

13Whether the Appellant was incorrect in her interpretation of the above clause, the evidence shows that, based upon her understanding of it, she moved forward with the belief that the clause related to her situation.

14On April 12, 2023, the Appellant called the Driver Control office of the MTO with respect to the ignition interlock system. She was told that it would be too soon to have that installed. However, the Appellant testified that, on that same day, because her counsel had advised her that she would need an interlock ignition system installed, she attended at the office of Alcolock, a company that installs ignition interlock systems, and presented them with her court documents and the letter of March 31, 2023. Alcolock then installed the interlock ignition system and advised her that she would need an "i" on her driver's licence.

15The Appellant presented as evidence numerous emails between herself and Alcolock as well as an Alcolock receipt which confirms the installation of the ignition interlock system.

16The Registrar submitted that the Ministry was never advised by Alcolock of the ignition interlock system having been installed in the vehicle.

17On April 13, 2023, the Appellant attended at a Service Ontario office and stated that she was advised that she would need an "i" on her licence. She was told to keep her driver's licence and, curiously, was given a temporary driver's licence and Photo ID card, both of which the Appellant presented as evidence at this hearing.

18On April 18, 2023, the Appellant received a Notice of Suspension from the Ministry which advised her of the 2-year suspension and that she must return her driver's licence to the Ministry. Subsequently, on the same day the Appellant attended a Service Ontario office where she was told to keep the photo id card and advised that she must have the ignition interlock system and complete the Back on Track program. While at the Service Ontario office, the Appellant paid the driver's licence reinstatement fee, the receipt for which she produced as evidence at this hearing.

19Upon questioning, the Appellant admitted that she did not show Service Ontario the Notice of Suspension or the Prohibition Order, but had assumed that these would be in the MTO system and obvious to the Service Ontario attendant.

20On April 20, 2023, the Appellant attended an office of Back on Track for an initial assessment. Back on Track is a remedial program mandated for those convicted of driving while impaired or with a blood alcohol level of over .08 mgs. The Appellant later attended a scheduled two day Back on Track workshop on May 26 and May 27, 2023. She returned to Back on Track for her six-month follow-up on November 28, 2023. At that follow-up, she was advised to wait to receive her driver's licence with the "i" indication.

21On December 6, 2023, the Appellant attended at a Service Ontario office and enquired about her driver's licence. She was told that they did not have the information in their system about her Back on Track program. On December 7, 2023, she attended at a different Service Ontario office where she was advised to contact the Driver Control office. That day, she contacted the Driver Control office and was advised to contact Service Ontario, and that she will receive her driver's licence.

22After December 7, 2023, the Appellant experienced serious cardiac issues. On January 17, 2024, it was necessary for her to attend therapy. Having no other transportation and assuming that her driver's licence was no longer suspended, although yet to receive the physical card with the "i" condition, she drove the vehicle to the appointment. It was then that the vehicle was impounded.

23When asked by the Registrar whether the Appellant at any time went online to check on the status of her driver's licence, the Appellant advised that the had not.

24The Appellant submits that she now realizes that her driver's licence remains under a two-year suspension. The Appellant submits that she was under the belief that, as she had met the necessary conditions, and that she was reassured by the Back on Track program and Service Ontario that she would receive her driver's licence, her driver's licence was not under suspension. The Appellant submits that, while she was mistaken to hold that belief, she would not have gone through the effort and relatively high expense to meet the conditions had she known that her licence would still be under suspension until April 4, 2025.

25The Registrar submitted that, despite the confusion, the Appellant was under a Prohibition order until April 4, 2025 and, therefore, requests the Tribunal to confirm the impoundment of the vehicle.

Conclusion regarding due diligence

26While it is apparent that the Appellant's driver's licence was under suspension at the time of the impoundment, the question before me is whether the Appellant did her 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, under s. 50.2(3)(c) of the Act.

27The evidence indicates that a number of errors occurred in the Appellant's journey in attempting to have her driver's licence reinstated.

(1) The Appellant's legal counsel's guidance with respect to the impact of pleading guilty to the criminal charges on the Appellant's driver's licence.

(2) The insufficiency of Service Ontario in providing the Appellant with the correct information regarding her driver's licence suspension, especially in the light of the Prohibition Order and MTO Suspension.

(3) The ignition interlock company that installed the system without the proper documentation from the Appellant and without confirming the Appellant's driver's licence status with the Ministry.

(4) Finally, the Appellant's own confusion between the references to the ADLS and the Prohibition Order.

28While it is not the Tribunal's mandate to assign blame to the misunderstanding of the Appellant's driver's licence status, the number of errors involved does lend credibility to the Appellant's testimony that she made significant efforts, albeit misguided, in order to have that driver's licence reinstated. Those efforts include communication with her legal counsel, numerous communications with Service Ontario and Driver Control, the installation of the ignition interlock system and the completion of the Back on Track program. Those efforts, although mistaken, lead me to conclude that the Appellant exercised due diligence in attempting to determine that her driver's licence was not under suspension at the time that her vehicle was impounded. While the Appellant did not check her driver's licence status online, I find that this oversight is more than compensated for by the Appellant's several in-person and telephone communications with both Service Canada and Driver Control which should have, but did not, tender the same result as an online status check.

Issue 2: Whether the impoundment will result in exceptional hardship, under [s. 50.2(3)](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html#sec50.2subsec3_smooth)(d) of the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html).

29As I have concluded that the Appellant exercised due diligence, it is unnecessary for me to consider the ground of exceptional hardship.

I ORDER AS FOLLOWS:

30Pursuant to s. 50.2(5) of the Act, I order the Registrar to release the appellant's motor vehicle.