Cesar Rodriguez Gonzalez v. Registrar of Motor Vehicles, 2024 CanLII 13100

Licence Appeal Tribunal File Number: 15518/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(3) of the Act.

Between:

Cesar Rodriguez Gonzalez

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR:

Raymond C. Ramdayal, Member

APPEARANCES:

For the Appellant:

Phillip Mota, Counsel

For the Respondent:

Leila Pereira, Agent

Heard:

January 4, 2024

OVERVIEW

1The appellant, Cesar Rodriguez Gonzalez, appeals the 45-day impoundment of his 2023 Honda HRV motor vehicle under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

2The appellant’s vehicle was impounded on December 16, 2023, after police found him operating it and determined that his licence was under a Criminal Code suspension. The appellant is claiming that his vehicle was improperly impounded due to an error with respect to the information entered on his driver’s record.

3The appellant states that the Criminal Code conviction, which police relied on to impound his vehicle, was in fact resolved in court for a lesser plea. He states that he was subject to a probation order which prohibited him from driving from February 23, 2022, to February 23, 2023. By the date of the impoundment, the probation order was expired for 9 months. He received no further information to indicate that his licence was still under suspension.

4Subsection 55.1(1) of the Act allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the driver’s licence of the person who is driving a vehicle at the time for certain Criminal Code offences. In this case, they based their decision on the appellant’s driving record which indicated his licence is indefinitely suspended for driving while his ability was impaired. As a result, police impounded the vehicle pursuant to section 55.1(1) of the Act.

ISSUE

5The appellant appeals the impoundment pursuant to s. 50.2(3)(b) on the grounds 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.

6The appellant also appeals pursuant to s. 50.2(3)(c) on the grounds that he exercised due diligence in attempting to determine that his driver’s licence at the time it was detained in order to be impounded was not then under suspension.

7The onus of proving these grounds of appeal rests with the appellant. To succeed in his appeal, the appellant must establish one of these grounds of appeal on a balance of probabilities.

RESULT

8Having considered the parties’ evidence and submissions, I find that the appellant has proven on a balance of probabilities that he had reason to believe that his licence was not under suspension at the time of the impoundment. Furthermore, the appellant has persuaded me that there is likely an error in the Ministry of Transportation (“MTO”) record system which does not reflect a plea to a lesser charge which resulted in the appellant being prohibited from driving from February 23, 2022 to February 23, 2023. Had this information been included, police may have had more information to base their decision to impound the appellant’s vehicle on December 16, 2023.

ANALYSIS

9It is undisputed between the parties that the appellant is the owner of the impounded vehicle and that he was driving it at the time it was impounded. The appellant holds the position that there was an error in information contained on the MTO system. Moreover, there was an absence of updated information.

10Through his lawyer, the appellant states that the MTO’s records incorrectly indicates a conviction of impaired driving and indefinite suspension when in fact he pled to a lesser offence which resulted in a conviction for dangerous operation of a motor vehicle and resulted in a Probation Order (Exhibit 1).

11While I am satisfied that the vehicle was lawfully detained under s. 55.1 of the Act, the resulting impoundment may have been based on incomplete information.

Has the appellant proven a plea to a lesser charge which would have likely impacted the decision to impound his vehicle

12I find that the appellant has shown that the impoundment of his vehicle on December 16, 2023, would have resulted in a different outcome had police been aware of updated information on the MTO’s system which erroneously reflected a conviction that was pled to a lesser charge.

13The Registrar of Motor Vehicle’s (the “respondent”) agent states that it is not their role to enter or verify the information that is entered into the Ministry system. The information is generally entered by the police and courts. The respondent makes the reasonable assumption that the information is accurate. Police officers also rely on this information at roadside and take appropriate action.

14The appellant provided documentary evidence consisting of a Probation Order dated February 23, 2022, which confirmed a sentence under s. 320.13(1) of the Criminal Code which is a summary offence with the short form wording lesser included Dangerous Operation. The offence date of September 20, 2020 is the same offence date noted on the driver’s abstract presented in the respondent’s book of documents (Exhibit 2). This convinces me that it is related to the charge of impaired driving.

Condition not to drive as part of the Probation Order

15The Probation Order sets out a condition of not operating a motor vehicle for a period of one year from the date of the Order. Therefore, this driving prohibition expired on February 23, 2023. There was no other information to suggest to the appellant that his licence was under suspension beyond that time or for another reason. He also had no further interaction with the criminal justice system since that time.

16The respondent argued that a letter was sent to the appellant on March 1, 2022, advising of a reduced suspension program. They state that another letter was sent on May 24, 2022. They were unable to produce the actual letters sent and instead provided form letters used for the purpose. There was also a screenshot provided of their system which refers to the letters. I find that even if the letters were received in 2022, the appellant would have no reason to believe that his licence was still under suspension at the end of the prohibition noted on his Probation Order. There was also no communication from the respondent to the appellant in 2023.

17It is noted that whether the appellant was convicted of impaired driving or for a lesser offence, he still would have been subject to a one-year suspension under section 41 of the Act, which is the basis for impounding the vehicle. Nonetheless, this should have expired well before the impoundment date and should be reflected on the MTO records. The lesser plea is clearly indicated on the Probation Order and the respondent did not bring evidence to dispute this finding. I weighed the Probation Order heavily in favour of the appellant when arriving at this decision.

The appellant’s claim that an error existed and resulted in his vehicle being impounded

18It is apparent to me that there has been an error (or delay) in information being entered into the Ministry system. I am also convinced on a balance of probabilities that the appellant was diligent in his understanding that he was not under suspension and there was no further action required on him to exercise his driving privilege.

19The form letters which were sent by the respondent did not indicate the suspension period. The respondent failed to provide any evidence of the exact dates of the suspension period.

20It is the appellant’s position that the records were not entered correctly on the MTO system. This is through no fault of their own. The police officers also acted on the information available to them when the vehicle was impounded. In the end, the evidence shows that the appellant was not convicted for impaired driving but for a lesser offence. Even if the conviction was for the more serious offence of impaired driving, the suspension would likely have only been one year.

21The appellant only had knowledge that he pled to a lesser charge and was following the conditions set out in the Probation Order. I do not have any direct evidence from the respondent that letter notices were sent out and I cannot confirm that they were received by the appellant. The respondent also did not send further information to the appellant stating that his licence remained suspended after February 23, 2023.

22While I accept the respondent’s argument that the appellant should have inquired with the MTO to confirm the status of his licence, I placed less weight on this since the public is generally alerted to licence renewals and matters related to their driver’s licence through letters initiated by the MTO.

23I find an administrative discrepancy existed outside the control of the appellant which cannot be ignored by the Tribunal.

24I have found that the appellant has proven the grounds set out in s. 50.2(3)(b) and s. 50.2(3)(c) of the Act.

ORDER

25The impoundment period has passed. However, for the reasons set out above, pursuant to the Tribunal’s authority under s. 50.2(5) of the Act, I order the Registrar to release the vehicle.