Linda Waito v. Registrar of Motor Vehicles, 2024 CanLII 43435

Licence Appeal Tribunal File Number: 15812/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:

Linda Waito Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

Vice-Chair: Jeffery Campbell, Vice-Chair

Appearances:

For the Appellant: Linda Waito, Self-Represented

For the Respondent: Sadia Ashraf, Agent

Heard by teleconference: April 30, 2024

OVERVIEW

1Linda Waito (the “appellant”) appeals the 45-day impoundment of her 2021 Chevrolet Silverado (the “Silverado”) on March 29, 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 Pierre Toupin. The Registrar alleges that, at the time of the impoundment, the vehicle was being driven by Pierre Toupin while his licence was under suspension due to a criminal conviction.

2The appellant appealed the impoundment to the Tribunal on April 11, 2024.

3Subsection 50.2(3) of the Act sets out the available grounds on which the Tribunal may release the vehicle. The grounds of appeal raised by the appellant is that the driver’s licence of the driver of the vehicle at time of impoundment was not suspended and that the impoundment will result in exceptional hardship.

ISSUES

4The issues to be determined are:

i. Whether 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)(b); and

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

RESULT

5I conclude that the driver’s licence of the driver of the motor vehicle at the time it was detained to be impounded was not then under suspension. It is unnecessary, therefore, to consider the ground of exceptional hardship. I order the release of the appellant’s vehicle.

ANALYSIS

Driver’s Licence not under Suspension

6The Registrar presented a Notice To Registrar (“NTR”) dated March 28, 2024, completed by Officer C. Dominey of the Ontario Provincial Police (“OPP”) which listed Pierre Toupin as the driver of the vehicle at the time of the impoundment. It also presented a driver status of Pierre Toupin showing that Mr. Toupin’s driver’s licence status as suspended and cancelled at the time of the impoundment.

7In her evidence, the appellant testified that she lives with her 83-year-old mother as well as her partner, Pierre Toupin. She testified that, as well as being aware that Mr. Toupin’s driver’s licence is suspended, he has been going through medical issues which necessitate her being his caregiver as well as that of her mother.

8The appellant testified that, as she was aware of Mr. Toupin’s suspension, and because of the medical issues that he was dealing with, he was not allowed to, and did not, drive her vehicles.

9The appellant testified that, on the evening of the impoundment, she was at home with her mother and Pierre Toupin, as well as with a friend of Mr. Toupin’s. She stated that she went to sleep and was awakened by a call from her step-son who told her that his mother’s (Mr. Toupin’s ex-partner) vehicle was stuck in a ditch. She then received a phone call from Mr. Toupin that he and his friend were at the scene of the stuck vehicle but could not help as they did not have the proper chain to pull the vehicle out of the ditch.

10The appellant testified that she then went to the scene of the ditched vehicle (the “scene”) was in the process of being impounded. The appellant testified that the owner of the ditched vehicle, Mr. Toupin’s ex-partner, told her that no person was in the Silverado before the impoundment.

11The appellant further testified that Mr. Toupin’s friend advised her that it was he, not Mr. Toupin, who drove the Silverado to the scene.

12The appellant further testified that she was told by the OPP officer at the scene that it was Mr. Toupin who was here “with” the vehicle.

13The agent for the Registrar testified that she had later spoken to Officer Dominey, who told her that Mr. Toupin was the driver of the vehicle.

14I appreciate that the appellant testifying to the Tribunal about what Mr. Toupin’s ex-partner, Mr. Toupin’s friend and the OPP officer told her is hearsay evidence. I also appreciate that the same is true of the agent for the Registrar’s testimony with respect to her discussion with Officer Dominey. There are inherent dangers to accepting hearsay because they are statements made by another person who did not testify at this hearing, and their evidence cannot be tested by cross-examination. That said, section 15(1) of the Statutory Powers Procedure Act allows this Tribunal may consider all evidence provided that it is relevant to the-subject matter of this proceeding. I accept and admit the hearsay evidence from both the appellant and agent for the Registrar because it is relevant as to who was the driver of the vehicle.

15I also accept the hearsay evidence as neither the owner of the ditched vehicle, nor Mr. Toupin nor Mr. Toupin’s friends were present to offer first-hand testimony. I also note that neither Officer Dominey was present to testify, nor were his officer’s notes offered as evidence.

16With respect to the NTR, it does list Mr. Toupin as the driver. However, it does not list specifically the circumstances in which the vehicle was stopped. That would be the purpose of the officer’s notes, which, as noted, were not available to consider. Also, while the OPP officer advised the agent for the Registrar that Mr. Toupin was the driver, the evidence of the appellant is that the OPP office at the scene had told her that Mr. Toupin was ‘with’ the Silverado.

17Given the circumstances of the impoundment (that being at the scene of the ditched vehicle) I find it likely that the Silverado was stationary, and not being driven at the time of the impoundment. The appellant had received a call from Mr. Toupin who was already at the scene some time prior to the impoundment of the vehicle at that same scene. Concluding that the vehicle was stationary at the time of the impoundment, the central question that arises from the testimony of the witnesses and from the NTR is whether it was Mr. Toupin or his friend who had driven the vehicle.

18I found the appellant’s testimony to be credible. She was forthright with her evidence, testifying readily, prior to the evidence of the Registrar, that she has alternative transportation, knowing that she would most likely then not succeed on the grounds of exceptional hardship. I also find her testimony that, due to Mr. Toupin’s driving suspension and his medical issues, he was not allowed to, and did not, drive her vehicle to have been sincere and convincing. I find it more plausible that Mr. Toupin’s friend had been the driver of the Silverado, as he had later advised the appellant.

CONCLUSION

19I conclude on the basis of the evidence, that the appellant has established, on the balance of probabilities, that Mr. Toupin was not the driver of the vehicle. Therefore, it stands to reason that someone other than Mr. Toupin, most likely his friend, was the driver. As there is no evidence before me to the effect that any other individual’s driver’s licence was under suspension, including that of Mr. Toupin’s friend, I conclude 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.

20Having found the above, it is not necessary for me to consider the ground of exceptional hardship.

I ORDER AS FOLLOWS:

21Pursuant to subsection 50.2(5) of the Act, I order the release of the appellant’s vehicle.