Licence Appeal Tribunal
FILE: 7344/MVIA
CASE NAME: 7344 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.
Applicant -and- Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: ANTOINE AOUAD, M.D., Member
APPEARANCES:
For the Applicants: APPLICANT’S SON, Agent
For the Respondent: RUSSELL MCKNIGHT, Agent
Heard in Toronto by teleconference: May 3, 2012
REASONS FOR DECISION
A hearing was held on May 3, 2012 at Toronto, Ontario, by teleconference to consider the Applicant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”).
THE TRIBUNAL ORDERED THE REGISTRAR TO RELEASE THE MOTOR VEHICLE pursuant to section 55.1(3) of the HTA, with written reasons to follow.
BACKGROUND
A motor vehicle was impounded pursuant to section 55.1 of the Act and the impoundment was appealed by the owner. The owner, motor vehicle, and date of appeal in this matter are as follows:
Owner: The Applicant
Motor Vehicle: 2006 HYUN ALS (the “vehicle”)
Date of Appeal: 12 April 2012
There were no preliminary matters in dispute between the parties, and the hearing proceeded.
All documents were entered into evidence as exhibits with the consent of both parties
ISSUES
As set out in the Applicant’s request for hearing (Exhibit #1), the owner appeals on the basis that the motor vehicle was stolen at the time it was detained in order to be impounded and that the loss of the vehicle will result in exceptional hardship, all as provided in sections 50.2(3)(a) and (d) of the Act.
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the motor vehicle was stolen at the time the vehicle was detained in order to be impounded?
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?
FACTS
Evidence for the Applicant
A summary of the Applicant’s evidence follows.
The Applicant’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit # 1. In a letter to the Tribunal dated April 12, 2012, the Applicant wrote that the vehicle was taken without his “knowledge,” and that the “loss of the car is a significant disruption and issue.”
The Applicant further contends that the vehicle is needed as means of transportation as the family lives “outside of town.”
During the hearing, the Applicant’s Agent presented testimony with respect to this matter.
The witness explained the situation with the disqualified driver and testified that the car was taken without the Applicant’s and the family’s knowledge or consent. Since the incident, the family has taken precautions by keeping the keys out of reach in order to avoid another incident. According to the witness, no charges were laid in order not to adversely affect the suspended driver’s opportunities to get into the Teen Challenge programme.
The witness testified that the vehicle is necessary to continue running the business.
In cross-examination, the Applicant’s Agent confirmed that the family met the suspended driver through the Church and that the agreement was that he be allowed to work for room and board, any extra work he chose to do would be monetarily remunerated.
According to the witness, it is believed that the suspended driver drove the car into town to buy drugs, and the family found out the car had been taken only after the suspended driver was arrested. Further, the witness attested that he picked up the disqualified driver after his release and took him back to the house. The witness explained that at time the suspended driver was only 8 days away from getting into the Teen Challenge programme, thus in order not to jeopardize his chances, and since other charges had already been laid, the Applicant chose not to press theft charges.
The witness further affirmed that the family is relaxed and even though they have control over the residents they try to maintain an atmosphere that encourages their honesty.
It was confirmed, by the witness, that the Applicant owns several other vehicles used for business and recreational purposes. The business has not been greatly impacted by the loss of the impounded vehicle.
With respect to schooling, the witness testified that the children have not missed classes but it has been difficult to keep their schedule of extra curricular activities and the volunteering at the soup kitchen.
Evidence for the Registrar
A summary of the Registrar’s evidence follows.
The documents tendered by the Registrar and admitted into the record on consent of the Applicant were as follows:
Copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle is registered in the name of the Applicant as owner;
A copy of the notice prepared by the officer who detained the impounded motor vehicle indicating, among other things, that the vehicle at the time it was detained was being driven by the person convicted of the offence under the Criminal Code of Canada outlined in point 4 below;
Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Ability Impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until 21 May 2012.
The Registrar called no other evidence.
LAW
Section 55.1 of the Act provides that a motor vehicle may be detained and 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 the impoundment or order the Registrar to release the motor vehicle. Pursuant to subsection 50.2(8), the decision of the Tribunal is, final and binding.
Subsection 55.1(3) of the Act states:
(3) A motor vehicle detained under subsection (1) shall be impounded as follows:
For 45 days, if there has not been any previous impoundment under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
For 90 days, if there has been one previous impoundment under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
For 180 days, if there have been two or more previous impoundments under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
Regulation 631/98 provides that the prescribed period, referred to above, is two years.
The owner may appeal the impoundment 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 order the Registrar to release the motor vehicle are,
(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;
(b) 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;
(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 it was detained in order to be impounded was not then under suspension; or
(d) that the impoundment will result in exceptional hardship.
The Applicant here appeals on the basis of sections 50.2(3)(a) and (d).
The meaning of “stolen” is not defined in The Highway Traffic Act.
The Shorter Oxford English Dictionary, 3rd ed., 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.
The Criminal Code of Canada (the "Code") R.S.C. 1985, Chap. C-46 provides guidance.
Section 1 of the Code states:
“steal” means to commit theft…
Section 322(1) of the Code states:
- (1) Every one commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or the use of another person, anything, whether animate or inanimate, with intent,
(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;
(b) to pledge or deposit it as security;
(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.
(2) A person commits theft when, with intent to steal anything, he moves it or causes it to move or to be moved, or begins to cause it to become movable.
(3) A taking or conversion of anything may be fraudulent notwithstanding that it is effected without secrecy or attempt at concealment.
(4) For the purposes of this Act, the question whether anything that is converted is taken for the purpose of conversion, or whether it is, at the time it is converted, in the lawful possession of the person who converts it is not material.
(5) For the purposes of this section, a person who has a wild living creature in captivity shall be deemed to have a special property or interest in it while it is in captivity and after it has escaped from captivity.
The Divisional Court held in Ontario (Registrar of Motor Vehicles) [2002] O.J. No. 745 that the Tribunal should not limit the meaning of “stolen” only to an intention to take the vehicle permanently. The Court held that the term “stolen” could also apply to an intention to take the vehicle temporarily. The Court reviewed the circumstances of that case and stated:
“In our opinion a vehicle is ‘stolen’ in this context when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.”
Issue Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?
The Shorter Oxford English Dictionary, 3rd ed. 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 there was a previous impoundment under section 55.1 with respect to any motor vehicle then owned by the same owner.
Section 10 of O. Reg. 631/98 provides the criteria to be considered and those not to be considered in determining the appeal under this section. First, the Tribunal must consider whether no alternative exists for the impounded vehicle and if there is no alternative, then whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle or a threat to public health and safety or to the environment or property of a community in whose service the vehicle is ordinarily used.
Second, the section provides that the Tribunal may not, except in certain circumstances, consider certain factors:
- inconvenience to any person, financial or economic loss to any person,
- loss of employment or employment opportunity to any person, or
- loss of education or training.
These factors may be considered if the owner demonstrates that
- there is no alternative to the vehicle available,
- the loss will be immediate, significant and lasting,
- the impact will be on a person ordinarily transported by the vehicle and
- the impact of the loss will be on someone other than the suspended driver and will not be the result of a loss by the suspended driver of the type described above.
All elements of the grounds of appeal must be proven on the balance of probabilities by the owner of the vehicle.
APPLICATION OF LAW TO FACTS
In closing, the Applicant’s Agent expressed his view that this incident has had great impact on the lives of the Applicant and the whole family. In essence, the family was just trying to help someone overcome circumstances and turn their lives around.
In his summary statement the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.
According to the Registrar’s Agent, the actions of the Applicant and the members of the family do not support the grounds for appeal that the vehicle was stolen. The Registrar’s Agent argued that not only were theft charges not laid, the family picked up the “thief” in town and took him back into their home.
With respect to exceptional hardship, the Registrar’s Agent maintains that the Applicant and his family own several other vehicles, the business has continued to operate and has not been affected and the family has made arrangements for the schooling of the children.
The onus is on the Applicant to establish his grounds of appeal as provided in sections 50.2(3)(a)(c) and (d) of the Act, respectively: that the vehicle was stolen, that he exercised due diligence and that he has suffered exceptional hardship.
The Tribunals finds that the Applicant is the owner of the vehicle and that the vehicle was properly impounded.
Dealing first with the Applicant’s appeal under section 50.2(3)(a) that the vehicle was stolen, the Applicant’s testimony is that the vehicle was driven without permission, therefore stolen.
The argument that a suspended driver has stolen the vehicle is one that is easy to assert by an Applicant. Thus, the Tribunal must use a great deal of circumspection in considering this argument. The Tribunal must consider the totality of the facts to determine if, in fact, the vehicle was stolen or if the argument is being used opportunistically.
One of the indicia that a vehicle has been stolen, of course, is the laying of charges. Nonetheless, there can be circumstances in which the laying of charges could be imprudent in that it may be counter productive to the situation as a whole. The evidence in this matter is that the Applicant has taken the suspended driver into his home in order to afford him an opportunity for recovery and the prospect of a better life. While it appears that at the time no specific effort was made to hide keys, the Tribunal accepts the Applicant’s Agent contention that allowing the residents an expectation of honesty is tantamount to their recovery. Further, the Tribunal concurs with the Applicant’s Agent that laying further charges against the suspended driver would be superfluous.
The Tribunal is satisfied that, the vehicle was taken without the knowledge and consent of the Applicant, particularly since it appears the purpose of this joy ride was to obtain drugs. Thus, after assessing the evidence presented with respect to section 50.2(3)(a), the Tribunal finds that the Applicant’s vehicle had been stolen at the time of impoundment.
Having determined that the vehicle was stolen, there is no further need to address the issue of exceptional hardship and the Applicant’s appeal succeeds.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal orders the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Antoine Aouad, M.D., Presiding Member
RELEASED: May 07, 2012