Licence Appeal Tribunal File Number: 16069/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:

Paul J. Haas

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION and ORDER

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Paul J. Haas, appellant (self-represented)

For the Respondent:

Sadia Ashraf, Agent for the Registrar

Witness:

Paul Haas Sr.

Heard by Teleconference:

July 24, 2024

OVERVIEW

1Paul J. Haas (the “appellant” and the “driver”) appeals the impoundment of his 2005 Chevrolet Colorado on July 1, 2024 for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

2The owner of a vehicle which has been impounded in accordance with section 55.1 may, under the provisions of section 50.2 of the Act, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”) that the Registrar release the vehicle.

3For the Tribunal to order the vehicle released, the appellant must prove, on a balance of probabilities, that he satisfies at least one of the five grounds set out in section 50.2(3) of the Act. The appellant appeals on the grounds that he was not then subject to the condition described in paragraph 2 of subsection 55.1(1) (ignition interlock device installed) under subsection 50.2(3)(b.1) of the Act.

ISSUES

4The issues in dispute are:

(a) Was the driver’s licence not subject to a mandatory ignition interlock device condition at the time his vehicle was detained in order to be impounded?

RESULT

5I find the driver’s licence was subject to the ignition interlock condition described in paragraph 2 of subsection 55.1(1) of the Act and paragraph 1 of section 11 of O. Reg. 631/98 under the Act at the time the vehicle was detained for impoundment. I therefore confirm the impoundment.

ANALYSIS

Circumstances leading to the impoundment

6Under section 55.1 of the Act, where a police officer is satisfied that a person was driving a motor vehicle while his or her licence is under suspension, or subject to conditions for certain driving-related Criminal Code convictions, the officer must detain and impound the vehicle.

7The appellant was the driver of the vehicle when it was detained for impoundment. The respondent presented evidence that, at the time the vehicle was detained, the driver’s licence was subject to a mandatory ignition interlock condition arising out of a Criminal Code related driving offence pursuant to sections 41 and 43 of the Act. Therefore, the vehicle was impounded for 45 days.

Ignition interlock device condition

8I find that the appellant’s licence was subject to a mandatory ignition interlock device (“IID”) condition, as set out under paragraph 2 of subsection 55.1(1) of the Act, at the time his vehicle was detained for impoundment and the vehicle was not so equipped.

9An IID condition is imposed on a licensee as part of a program for drivers who have been convicted of an impaired driving offence under the Criminal Code to reinstate their driving privileges after serving a period where those privileges were suspended. When a licensee is subject to an IID condition, the Ignition Interlock condition “I” is placed on their driver’s licence card and their driving privileges become conditional on having the IID installed in their vehicle. The length of time the driver stays in the program varies based on the number of convictions they have had e.g. a first-time offender has a minimum of 1 year; subsequent offences carry a longer period with the IID condition.

10The appellant’s father, Paul Haas Sr., appeared as a witness and testified that he accompanied the appellant to attend a doctor’s appointment on September 8, 2023, and Carstar, a service centre that removes IIDs, on October 2, 2023. He testified that the appellant attended these appointments as part of getting his driver’s licence reinstated to a G licence with no conditions.

11The appellant testified that in August 2023 he received a blank Substance Use Assessment form from the Ministry of Transportation (“MTO”) and understood that his physician would need to complete and submit the form to MTO as the final step required to remove the IID condition from his licence. The appellant testified that he had completed all the other steps in that process; no fines were due and he completed the Back on Track remedial program.

12The appellant testified that after his September 8 visit to his physician he was required to get bloodwork completed by a clinic/lab and have the results sent to his physician. The appellant testified that after the bloodwork was completed, he revisited his physician on September 12 to have the Substance Use Assessment Form (“SUA”) completed and sent. He testified that the physician’s office faxed the completed form to the MTO and that a staff member from his physician’s office confirmed verbally that it had been sent. The appellant testified that he kept a copy of the SUA and mailed it to the MTO the week of September 15, 2023.

13The appellant testified that he followed up with the MTO several times by phone after September 15, 2023, but could not confirm that they had received the completed SUA. The appellant testified that he assumed the SUA was in process at the MTO.

14The appellant testified that he attended Carstar on October 2, 2023 to have the IID removed from his vehicle. He understood that they would only remove the IID if the MTO gave them the “green light” to do so. He testified that while at Carstar a staff member was on the phone to MTO in relation to his licence and that MTO had the completed SUA. He concluded that since Carstar had communicated with MTO and they proceeded to remove the IID, his licence was in the process of having the IID condition removed.

15The appellant referred me to a statement on the bottom of the invoice from Carstar which states, “I must present a licence that has the “I” condition removed before the Interlock [IID] can be removed.” The appellant testified that staff at Carstar advised him to “go to the ministry afterwards to get his new licence” and that he needed to get the condition removed from his licence. I take notice that although the Carstar invoice states that they will not remove an IID unless the driver presents a licence with no “I” condition, it appears Carstar did remove it on October 2, 2023 despite the appellant not having presented a licence without an “I” condition.

16The appellant testified that during October 2023 he contacted Service Ontario (“SO”) on two occasions to inquire into the status of his reinstated, no “I” condition, driver’s licence. SO advised him to contact the MTO directly because his licence showed no record of the SUA being filed. SO gave the appellant a number to call at the MTO Driver Medical Review office.

17The appellant testified that he contacted the MTO multiple times after mid-October and was informed that it did not have the SUA on file. He testified that MTO informed him that he could drive without the IID but he should get his updated licence as soon as possible. He also stated that MTO advised that he could drive [without the IID installed] provided he got the “I” condition removed from his licence.

18On February 21, 2024, the appellant contacted the Driver Medical Review Office again to restart the process of filing a SUA. A blank SUA form was sent to him. He attended an appointment with his physician on April 29, 2024 in relation to the SUA which required a second bloodwork requisition. The appellant undertook to get the bloodwork completed but the physician’s office did not receive the results until July 5, 2024, after the impoundment.

19The appellant testified that a completed SUA was faxed to the Driver Medical Review office on July 13 or 14, 2024. The appellant spoke with the Driver Medical Review office on July 22, 2024 and it confirmed that his SUA had been received and was satisfactory to remove the “I” condition from his licence.

20The appellant submits that the process of removing the “I” from his licence has been impeded by the MTO losing or misplacing the first SUA (September 2023), and his work schedule has prevented him from expeditiously monitoring and following up on the progress of exiting the MTO “I” condition requirements on his licence. He seeks an order from the Tribunal for the release of his vehicle on the basis that, at the time he was apprehended by police and his vehicle detained for impoundment, he had substantially met the requirements to have the “I” condition removed from this licence.

21The respondent presented evidence that the appellant’s licence was subject to the IID condition on the day of the impoundment. The respondent submits that MTO informed the appellant that he was required to have the IID installed in any vehicle he was operating as long as the “I” condition appeared on this licence. The respondent submits that the appellant’s several visits to SO and calls to MTO confirmed for him that the “I” condition remained on his licence. The respondent submits that the appellant acknowledges the “I” condition was listed on his driver’s licence card on the day of the impoundment and his vehicle was not equipped with an IID. The respondent submits that the appellant fails to meet the ground in subsection 50.2(3)(b.1) of the Act and therefore, the impoundment should be confirmed.

22I find the appellant’s licence was subject to the “I” condition on the day of the impoundment. The evidence demonstrates that the IID had been installed in the appellant’s vehicle but it was removed on October 2, 2023 prior to the “I” condition being removed from the appellant’s licence.

23The appellant provided no documentary evidence to refute the records of the respondent that his licence was subject to the IID condition at the time the vehicle was detained for impoundment. Despite the appellant’s attempts to complete and submit a SUA in September 2023 the Driver Medical Office of MTO had no record of it, a fact the appellant confirmed by visits to SO and phone calls to the MTO later in October and early November.

24The appellant testified that he assumed his first SUA was “in process” and seemed to suggest it would only be a matter of time before the “I” condition would be removed from this licence. Unfortunately, he removed the IID from his vehicle less than one month after his September 2023 appointment with his physician and before confirming that the “I” condition was removed. Despite Carstar removing the device without confirming the appellant’s licence had no “I” condition, they informed him, at least, that he needed to get the “I” condition off his licence as soon as possible.

25I give little weight to the evidence of the appellant that the MTO advised “he could drive without the IID but should get his updated licence as soon as possible” because the appellant also stated that the MTO informed him that he could drive without the IID installed only if he had the “I” condition on his licence removed. The statements contradict each other.

26I find that the appellant was aware that his licence was subject to the “I” condition and that he risked being in violation of the condition by not having the IID installed in his vehicle. He demonstrated the urgency of the situation by the frequency of his visits to SO (two visits in mid to late October 2023) and multiple calls to the MTO checking on the status of his SUA in late October and early November 2023.

27Soon thereafter, however, the appellant appears to have become complacent about the need to get the condition removed from his driver’s licence. It was not until three months later, in February 2024, that he reinitiated the process of getting a SUA completed and filed with MTO. A second medical appointment did not happen until more than two months later in April 2024, and blood work for a new SUA did not arrive in his physician’s office until after his vehicle was impounded.

28Although there is no evidence before me to refute the appellant’s oral evidence that he had obtained a SUA from his physician in September 2023 (potentially meeting the final requirement to get his driver’s licenced reinstated without an “I” condition), the MTO had no record of receiving it and the appellant knew they did not have it. Moreover, the legal test in this matter is not whether the requirements for removing the “I” condition have been met, it is whether the driver’s licence was subject to the IID condition at the time the vehicle was detained.

29The appellant was taking a risk in driving with an “I” condition on his licence and no IID installed in his vehicle. Given the risk that he faced, the appellant could have pursued the apparently missing SUA through his physician’s office with greater urgency, even redoing it, if necessary. The appellant could have eliminated the risk by simply reinstalling the IID until a new SUA was submitted and found to meet the requirements to have the “I” condition removed from his licence.

30I find the evidence demonstrates that, after October 2, 2023, the appellant knowingly drove with an “I” condition on his licence and without his vehicle being equipped with an IID.

CONCLUSION

31I find that the appellant does not meet his burden in demonstrating that his licence was not subject to an IID condition, described in paragraph 2 of subsection 55.1(1) of the Act, at the time his vehicle was detained for impoundment. He does not meet the ground in subsection 50.2(3)(b.1) of the Act for the Tribunal to order his vehicle released.

ORDER

32Pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the vehicle.

Bruce Stanton

Adjudicator