Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2012-05-22
FILE:
7370/MVIA
CASE NAME:
7370 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
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
ANTOINE AOUAD, M.D., Member
APPEARANCES:
For the Applicants:
Self-represented,
For the Respondent:
RUSSELL MCKNIGHT, Agent
Heard in Toronto, by teleconference:
May 16, 2012
REASONS FOR DECISION
A hearing was held on May 16, 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.
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: VOLV V70 (the “vehicle”)
Date of Appeal: April 27, 2012
The Applicant submitted a photocopy of the disqualified driver’s licence showing only the issue and expiry dates, no name or picture is shown. Although, the Registrar’s Agent suggested that the licence had been in fact surrendered to the Ministry on May 14 of this year, the Tribunal granted the Applicant one hour to fax a copy of the entire licence.
As requested the Applicant faxed a copy of the disqualified driver’s licence to the Tribunal and to the Registrar’s office. The hearing reconvened.
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 #2), the owner appeals on the basis that the motor vehicle was stolen at the time it was detained in order to be impounded, that the driver's licence was not under suspension, that the vehicle owner exercised due diligence (i.e. all reasonable efforts) to determine that the driver's licence was not suspended and that the loss of the vehicle will result in exceptional hardship, all as provided in sections 50.2(3)(a) (c) 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 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 vehicle was detained in order to be impounded was not then under suspension?
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 # 2. In a letter to the Tribunal dated April 25, 2012, the Applicant wrote that the vehicle was taken without her “knowledge,” as the vehicle was on loan to her son who uses it for work purposes.
The Applicant further contends she believed the disqualified driver’s licence had been reinstated as per letter from Ministry attached showing reinstatement as of “June 21, 2010”
The Applicant attached a photocopy of the disqualified driver’s licence showing an expiry date of “2012-09-05”.
During the hearing, the Applicant testified that she had lent the vehicle to her son, and under no circumstances did she allow her ex-husband to drive. The Applicant explained that it never occurred to her son that his father did not have a valid licence and allowed him to borrow the car for the afternoon.
The Applicant affirmed that she owns another vehicle which, is rusting and will not last too much longer, therefore, she actually needs to use the impounded vehicle herself, to get to and from work.
In cross-examination, the Applicant confirmed that her son has lost his job as a result of the impoundment. According to the Applicant her job will not start until the end of June, so she was planning to allow her son to continue using her car. The Applicant stated that since the impoundment she has been riding her bicycle and using the van.
The Applicant attested that she has very limited contact with her ex-husband, she knows very little about his current life, but she believes he has no money to cover the impoundment fees.
Regarding for the copy of the disqualified driver’s licence, the Applicant claimed that she obtained the copy after the impoundment. The Applicant admitted to knowing about the suspension but believed that the licence had been reinstated. The Applicant acknowledged that although she told her son not to let his friends drive the vehicle it never occurred to her to tell her son not to allow his father to use the car, as she did not want to put her son in an awkward position. Furthermore, the Applicant affirmed that she does not discuss her ex-husband with her son, but was adamant that she did not want her ex-husband to drive her car.
In response to the Respondents’ Agent question regarding employment, the Applicant stated that she was laid off two weeks ago, and will not be going back to work until August.
The Applicant also confirmed that she did not miss any medical appointments.
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 for life.
The Registrar did not call any witnesses.
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) (b) (c) and (d).
Issue Should the Tribunal order the Registrar to release the motor vehicle on the basis that the motor vehicle was stolen at the time in respect of which the vehicle was detained in order to be impounded?
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 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 vehicle was detained in order to be impounded was not then under suspension?
The Shorter Oxford Dictionary, 3rd ed. provides the definition of “due diligence” as follows:
Due: A. adj. 1. That is owing or payable, as a debt. 2. Belonging or falling to by right. 3. That ought to be given or rendered; merited. 4. Such as ought to be; fitting; proper; rightful. 5. Such as is requisite or necessary; adequate. 6. To be ascribed or attributed; owing to, caused by, in consequence of. 7. Under engagement or contract to be ready or arrive (at a defined time).
Diligence: 1. The quality of being diligent; industry, assiduity. 2. Speed, dispatch. 3. Careful attention, heedfulness, caution. 4. Law. The attention and care due from a person in a given situation....
Also, “due diligence” in Black’s Law Dictionary (sixth edition) at page 457 is defined as follows:
Due diligence: Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case.
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
Prior to the closing remarks the Tribunal asked the Registrar’s Agent to clarify why a licence that had been suspended for life in 2005 was reinstated in 2007. The Registrar’s Agent explained that since the suspended driver had launched an appeal, the Ministry had to reinstate the licence pending a final decision of the courts. According to the Registrar’s Agent the suspension took effect “seven years later” in 2012.
In closing, the Applicant requested the return of the vehicle in order for her and her son to get their life back, as the financial aspect is distressing. Further, the Applicant maintains that the cost of the impoundment is prohibitive.
In his summary statement the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.
The Registrar’s Agent, argued that evidence does not support the grounds that the vehicle was stolen as the person to whom the vehicle had been entrusted gave permission for the disqualified driver to use the vehicle.
Regarding the due diligence, according to the Registrar’s Agent, there is no evidence that the owner exercised due diligence until after the vehicle had been impounded.
With respect to exceptional hardship, the Registrar’s Agent maintains that there are other vehicles available to provide alternatives to the impounded vehicle. According to the Registrar’s Agent there are neither loss of employment issues nor health issues that can be considered.
As far the cost of the impoundment, the Registrar’s Agent reminded the Tribunal that costs cannot be considered.
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 she exercised due diligence and that she has suffered exceptional hardship.
The Tribunals finds that the Applicant is the owner of the vehicle nonetheless there appears to be some issues with respect to whether the vehicle was properly impounded. The Tribunal understands the disqualified driver’s licence was reinstated pending appeal, and was surrendered to the Ministry on May 14, 2012. No information was presented as to when exactly in 2012 the suspension took effect, thus in effect it could be presumed that the licence was still valid at the time of the impoundment.
Nonetheless, it is neither within the Tribunal’s jurisdiction to deal with the matter nor is it up to the Tribunal to speculate. Thus, a decision will be rendered solely on the evidence presented.
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. The Applicant’s ex-husband was no permitted to drive the vehicle and his use of the vehicle deprived the Applicant of it temporarily without colour of right on the part of the ex-spouse. It was, 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.
The Tribunal understands the unusual circumstance of this matter. The Applicant lent her vehicle to her son, she had no control over her son’s actions in allowing his father to drive the vehicle. Evidence supports the fact that the Applicant’s son allowed the disqualified driver to use the vehicle without consulting with the Applicant. It further appears that had her son discussed the matter with her she would have not granted permission. The Tribunal found the Applicant totally credible and believed her testimony that it was never her intention to allow her ex-husband to drive the vehicle.
Thus, having considered the evidence, the Tribunal is satisfied that, the vehicle was taken without the knowledge and consent of the Applicant, therefore the criteria of section 50.2(3)(a) was met and 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 due diligence and exceptional hardship and the Applicant’s appeal succeeds. Suffice it to say that the appeal would have failed on these grounds. The Applicants efforts to see the disqualified driver’s licence followed the impoundment and she has alternative modes of transport available.
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 22, 2012