W. Marshall v. Registrar of Motor Vehicles, 2001 CanLII 39007

Licence            Tribunal                      

Appeal d'appel en

Tribunal matière de permis

DATE:

2001-08-22

FILE:

0717/MVIA

CASE NAME:

0717 v. Registrar of Motor Vehicles

Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 from an Impoundment Pursuant to Section 55.1(3) of the Act.

W. Marshall

Applicant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Jeffrey M. Lee, D.C.

APPEARANCES:

For the Applicants:

J. Marshall, Agent

For the Respondent:

Kyle M. Biel, Agent

Heard by teleconference:

August 17, 2001

REASONS FOR DECISION

A hearing by teleconference was held on August 17, 2001, at Toronto, Ontario, to consider the Applicant’s appeal pursuant to Section 50.2 of the Highway Traffic Act, R.S.O., 1990, Chap. H.8 amended (“HTA” or the “Act”).

THE TRIBUNAL RULED TO CONFIRM the Order to Impound imposed by the Registrar pursuant to Section 55.1(3) of the HTA.

BACKGROUND:

This is an appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, Chapter H.8, as amended (the “Act”).

The Registrar of Motor Vehicles (the “Registrar”), made an order under section 55.1 of the Act to impound a motor vehicle. That order has been appealed by the owner. The owner, motor vehicle, and date of appeal are as follows:

Owner: W. Marshall (the “Applicant”)

Motor Vehicle: 1999 Chevrolet Cavalier Z24 (the “vehicle”)

Date of Appeal: July 27, 2001

The Applicant filed an appeal of this impoundment order with the Licence Appeal Tribunal (the “Tribunal”) together with supporting documentation and the required $100.00 fee payable to the Minister of Finance.

The owner appeals on the basis that the motor vehicle was stolen at the time it was being driven and the loss of the vehicle will result in exceptional hardship as provided in sections 50.2(3)(a) and (d) of the Act.

This matter came before this Tribunal on August 17, 2001 and proceeded as an electronic hearing.

The Tribunal asked the parties if they wished to make any submissions prior to the Tribunal commencing the hearing.

There were no preliminary matters in dispute between the parties and the hearing proceeded.

ISSUE:

The Applicant’s request for a hearing filed with this Tribunal (Exhibit #1) identifies the basis of the Applicant’s appeal.

Should the Tribunal set aside the Registrar’s order to impound the vehicle on the basis that the motor vehicle was stolen at the time in respect of which the order was made?

Should the Tribunal set aside the Registrar’s order to impound the vehicle on the basis that the order will result in exceptional hardship?

FACTS:

The Tribunal heard the evidence given in support of the Applicant and the Respondent.

Evidence for the Applicant

A summary of the Applicant’s evidence follows.

Applicant’s written submission filed with the Tribunal in support of appeal states:

• The vehicle was stolen when impounded.

• Police occurrence # <# deleted>.

• I am in Parry Sound on Holidays <phone # deleted>

• I left my vehicle with a licenced driver in order to ensure my daughter got her medication daily (in B___, Ont) She lives in , Not with me.

• Driver was BG - 26 years old - licenced.

• This impoundment is unfair - causes severe hardship.

• Please release my vehicle.

• There have been temporary argt's made but I must have my vehicle returned. I need it Monday July 30th.

• My daughter goes to Oshawa weekly for a doctors care. (-Oshawa)

• She has to get medication from B___ Ont daily. This medication is not available in .

• Doctor E___ has been her doctor for eight months now.

• First step medical clinic in Oshawa.

• Occrurrence # <# deleted>

• Vehicle was taken July 24th & impounded because the thief's licence was suspended.

Please contact me @ <phone # deleted> for a telephone hearing at the earliest convenience.

Thank you.

Mr. Marshall was affirmed and gave the following testimony on behalf of his wife, W. Marshall. Mr. Marshall testified that he and his wife had given the vehicle to Ms. BG. They checked Ms. BG’s driver’s licence which she showed them and Mr. Marshall believed that it was valid. The vehicle was left with Ms. BG in order that there would be transportation available to take Miss Marshall to B___ and to Oshawa for her medical appointments. According to Mr. Marshall, the keys were stolen from Miss BG by JB. Mr. JB was stopped by police. Mr. JB admitted to having taken the vehicle without permission. Mr. JB was arrested and the vehicle was impounded. Mr. Marshall believes that the impoundment is unjust and wanted the vehicle released. Mr. Marshall had nothing further to add and was excused.

Miss BG was affirmed and gave the following testimony. She stated that the Marshalls had given her the car to take their daughter for medical appointments. Ms. BG stated that on the evening of the impoundment, she went to bed leaving the keys and her purse on the kitchen table. Mr. JB, who is also residing in the same home as Ms. BG and Ms. Marshall removed the keys and took the vehicle without her permission. Testimony from Ms. BG indicated that she called the police after she was called that the vehicle was going to be impounded. She reported the vehicle stolen to the Q.W.P.S. The evidence presented indicated that the Q.W.P.S. after their investigations, laid a charge of Take Auto Without Permission against the driver, Mr. JB. No charge of theft was ever laid.

Ms. BG had nothing further to add and was excused.

Mr. JB was affirmed and gave the following testimony. He stated that he stole the vehicle from Ms. BG. He stated that he believed that he could do his errands and return the vehicle without anyone being the wiser. However, he was stopped by police and upon checking, the Police arrested him. He stated that he asked the police for a break and that the vehicle was not his and that he had borrowed it and perhaps Ms. BG could come and pick it up. He believed that the vehicle was not going to be impounded however the QWPS after becoming more familiar with the motor vehicle impoundment program, issued the impoundment notice to the registrar and impounded the vehicle. Mr. JB does not understand why he was not charged with theft of the vehicle. A sworn statement was submitted by Mr. Marshall in which Mr. JB states “ I removed the subject vehicle from the care and control of Ms. BG”. The affidavit does not indicated that the vehicle was stolen as the intent was to return the vehicle after it had been used without the knowledge of Ms. BG to whom the vehicle had been entrusted.

Mr. JB had no further information to give and was excused.

Evidence for the Registrar

A summary of the Registrar evidence follows.

The documents tendered by the Registrar and admitted into the record on consent of the Applicant were as follows:

1. Copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle herein is registered in the name of the Applicant as owner;

2. Copy of Notice to the Registrar indicating, among other things, that the vehicle at the time it was detained was being driven by Mr. JB;

3. Copy of the Order by the Registrar of Motor Vehicles to impound the vehicle;

4. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of the offence of Impaired Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until April 10, 2002.

LAW:

Section 55.1 of the Act provides that the Registrar may make an order that a motor vehicle be impounded, and section 50.2 provides the motor vehicle owner’s right of appeal to the Tribunal. The Tribunal on the appeal may, pursuant to subsection 50.2(5) of the Act, confirm or set aside the order to impound, and the decision of the Tribunal is, pursuant to subsection 50.2(8) final and binding.

Subsection 55.1(3) of the Act states:

(3) Upon notification under subsection (2), the Registrar may, without a hearing, issue an order to release the motor vehicle or issue an order to impound the motor vehicle that was being driven by the driver whose driver’s licence is under suspension, as follows:

1. For 45 days, if an order to impound under this section has not previously been made, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.

2. For 90 days, if one order to impound under this section has previously been made, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.

3. For 180 days, if more than one order to impound under this section has previously been made, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.

Ontario Regulation 574 R.R.O. 1990, as amended by Ontario Regulation 631/98 provides that the prescribed period, referred to above, is two years.

The right of the owner to appeal to this Tribunal where that owner’s motor vehicle has been impounded is provided in section 50.2 of the Act, with subsection 50.2(1) stating:

(1) The owner of a motor vehicle that is subject to an order to impound under section 55.1 may, upon paying the prescribed fee, appeal the order to the Tribunal.

By subsection 50.2(2) of the Act, the parties to an appeal are the owner and the Registrar. The “owner” for the purposes of the section is defined in subsection 50.2(11), as amended December 6, 2000. "Owner" is defined as:

“Owner” means each person whose name appears on the certificate of registration for the vehicle but in subsection (4) "owner" means the person whose name appears on the plate portion of a permit in cases where the certificate of registration consists of a vehicle portion and a plate portion and different persons are named on each portion.

The owner may appeal the Registrar’s order on only four specific grounds set out in subsection 50.2(3):

(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may set aside the order to impound are,

(a) that the motor vehicle that is subject to the order was stolen at the time in respect of which the order was made;

(b) that the driver’s licence of the driver of the motor vehicle at the time in respect of which the order was made was not then under suspension;

(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 in respect of which the order was made was not then under suspension; or

(d) that the order will result in exceptional hardship.

The Applicant here appeals on the basis of sections 50.2(3)(a) and (d).

With respect to an appeal under subsection 50.2(3)(a) alleging that the vehicle was stolen, the meaning of “stolen” is not provided in The Highway Traffic Act.

The Shorter Oxford Dictionary, provides the definition of “stolen” as follows:

Stolen: 1. Obtained by theft. 2. Accomplished or enjoyed by stealth; secret. 3. Of time: obtained by contrivance

Theft: 1. The action of a thief; the felonious taking away of the personal goods of another; larceny 2. That which is or has been stolen; the proceeds of thieving.

Black’s Law Dictionary (Sixth edition), page 1419-1420 provides the definition of “stolen” as follows:

Stolen: Acquired, or possessed, as a result of some wrongful or dishonest act or taking, whereby a person willfully obtains or retains possession of property which belongs to another, without or beyond any permission given, and with the intent to deprive the owner of the benefit of ownership (or possession) permanently.

The word “stolen” as used in the crime of interstate transpiration of stolen motor vehicles includes all wrongful and dishonest taking of motor vehicles with the intent to deprive the owner of the rights and benefits of ownership, regardless of whether theft constitutes common-law larceny; and felonious taking may be effected by diverse means known to both common and statutory law, such as larceny, embezzlement, false pretenses, larceny by trick and other types of wrongful acquisition. Lake v. U.S., Colo, 338F.2d 787,788. It is not necessary that the taking of the vehicle be unlawful. Even if possession of the vehicle is lawfully acquired, the vehicle will be deemed “stolen” if the defendant thereafter forms the intent to deprive the owner of the rights and benefits of ownership, and converts the vehicle to his own use. United States v. Turley, 352 U.S. 407, 417, 77 S.Ct. 397, 402. 1 L.Ed.2d 430.

With respect to an appeal under section 50.2(3)(d) alleging that the impoundment results in exceptional hardship, the Shorter Oxford Dictionary defines “exceptional hardship” as follows:

Exceptional : Of the nature of or forming an exception; unusual.

Hardship: 1. The quality of being hard to bear; hardness; severity. 2. Hardness of fate or circumstance; severe toil or suffering; extreme privation.

Also, where the owner appeals on the ground of exceptional hardship, subsection 50.2(4) provides:

(4) Clause (3) (d) does not apply if an order to impound under section 55.1 was previously made with respect to any motor vehicle then owned by the same owner.

Further, subsection 55.1(28) of the Act provides that the Lieutenant Governor in Council may make regulations, and specifically provides in clause (h) of subsection 55.1(28),

(h) prescribing criteria to be considered, and criteria not to be considered, by the Tribunal in determining in an appeal under section 50.2 whether exceptional hardship will result from an order to impound that is made under this section.

Section 22 of Regulation 574 R.R.O. 1990, as amended by Ontario Regulation 632/98, provides for criteria to be considered and criteria not to be considered by the Tribunal in determining whether exceptional hardship will result from an order to impound under section 55.1 as follows:

22 (1) In determining whether exceptional hardship will result from an order to impound under section 55.1 of the Act, the [Tribunal] shall consider whether no alternative to the impounded motor vehicle is available and, if no alternative is available, whether the impoundment will result in,

(a) a threat to the health or safety or any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

(2) In determining whether exceptional hardship will result from an order to impound under section 55.1 of the Act, the [Tribunal] shall not, subject to subsection (3), consider whether the impoundment will result in,

(a) inconvenience to any person;

(b) financial or economic loss to any person;

(c) loss of employment or employment opportunity to any person; or

(d) loss of education or training or of an educational or training opportunity to any person.

(3) The [Tribunal] may consider the criteria set out in clauses (2) (b), (c) and (d) if the owner demonstrates that,

(a) no alternative to the impounded motor vehicle is available;

(b) the loss will be immediate, significant and lasting;

(c) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and

(d) the impact of the loss,

(i) will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the order to impound the motor vehicle, and

(ii) will not be a result of a loss by the suspended driver of the type set out in clause (2)(b), (c) or (d).

(4) In order to show that no alternative to the impounded motor vehicle is available under subsection (1) or clause (3) (a), the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle to replace the impounded motor vehicle and making arrangements to do without the impounded motor vehicle or a replacement during the impound period.

APPLICATION OF LAW TO FACTS:

There are two issues to be considered in this appeal and are dealt with hereunder.

First, should the Tribunal set aside the Registrar’s order to impound the vehicle on the basis that the motor vehicle that is the subject to the order was stolen at the time in respect of which the order was made as per section 50.2(3)(a)?

(1) Stolen Vehicle:

The evidence before the Tribunal establishes that the driver of the subject vehicle, Mr. JB was in fact driving while under suspension for a criminal code conviction, impaired ability. The Tribunal accepts this as fact. The Tribunal also accepts the evidence as presented by the QWPS. The evidence indicates that the vehicle which is the subject of the impound was in fact taken without permission by Mr. JB. However, there is no evidence before this Tribunal that Mr. JB who used the vehicle without permission had the intent of permanently depriving the owner, W. Marshall of her vehicle. In fact,Mr. JB testified that he had every intention after he finished using the vehicle, to “return it and put the keys back before any knew that I had taken it.” This is sufficient evidence to confirm to this Tribunal that the impounded vehicle was indeed not stolen. Further, care and control was left with Ms. BG and in fact the keys to the impounded vehicle where left out on a table which afforded anyone easy access to them showing a lack of concern. Mr. JB who also resides at the same residence as both Ms. BG and Ms. Marshall, seized the opportunity and removed the keys, but there is no evidence to support the allegation that the car was stolen.

While the Applicant has made statements to the Police to the effect that the vehicle was stolen, the Police after investigation, failed to lay a charge of stolen. After weighing the evidence presented, the Tribunal - therefore can find no evidence that the vehicle was in fact stolen as per Section 50.2.3(a).

(2) Exceptional Hardship:

Should the Tribunal set aside the Registrar’s order to impound the vehicle as the basis that the order will result in exceptional hardship as per Section 55.2(3)(d)?

Mr. Marshall indicated to the Tribunal that he was abandoning this ground of appeal as it was his contention that the exceptional hardship suffered was only for the first two weeks of the impoundment period and that there was no longer exceptional hardship being suffered.

The Applicant has failed to meet the criteria as described in Section 22(4) of Regulation 632/98.

DECISION:

After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Highway Traffic Act, R.S.O. 1990, Chap. H8 as amended, the Tribunal confirms the Order of the Registrar of Motor Vehicles to impound the Applicant’s motor vehicle.

LICENCE APPEAL TRIBUNAL

Jeffrey M. Lee, D.C., Presiding Member

RELEASED: August 22, 2001