7377 v. Registrar of Motor Vehicles, 2012 CanLII 31457

Licence Appeal Tribunal

Date: 2012-05-31 File: 7377/MVIA Case Name: 7377 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.

7377, Applicant -and- Registrar of Motor Vehicles, Respondent

Reasons for Decision and Order

Adjudicator: Chantal Proulx, Vice-Chair

Appearances: For the Applicant: Self-represented For the Respondent: Frances Ilari, Agent

Heard by teleconference: May 22, 2012

Reasons for Decision

A hearing was held on May 22, 2012, 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 RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the HTA. As a result the Applicant’s motor vehicle will remain detained at the impound facility for 45 days as stipulated in the Notice of Impoundment filed as Exhibit 1.

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: 2003 Chevrolet Impala (the “vehicle”) Date of Appeal: May 3, 2012

There were no preliminary matters.

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 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 testified that her daughter had been the primary user of the vehicle in question. The situation changed in September 2011 when her daughter was charged with driving under the influence and her driver's licence was suspended until November 15, 2012. Since the fall of 2011, the vehicle has been parked in the Applicant's driveway and it was neither licensed nor insured.

The Applicant advised that on April 24, 2012, her daughter took the vehicle without her knowledge or permission. The Applicant explained that her daughter lives in her own apartment and the keys to the vehicle were in the Applicant's house. The Applicant's daughter was pulled over by the local police and she was charged with driving with a suspended licence. As a result, the vehicle was impounded. The Applicant stated that she did not report the car as being stolen because she considered that her daughter was dealing with enough issues at the time. The Applicant noted that while her daughter works part-time, she does not have enough money to pay for the impoundment; however, she will be responsible for the fines.

The Applicant testified that her stepson recently moved to the city in which she lives where he found a summer job. The Applicant had promised to give him the vehicle as of May 1, 2012 so he could attend his place of work. Since the vehicle has been impounded, her stepson has been inconvenienced and he has to take the bus to work. She explained that he does not know many people in London since he just moved there. The Applicant acknowledged that her stepson has his own car, a 2010 Mazda; however, she indicated that he cannot afford the insurance on his car.

The Applicant confirmed that her husband has three cars registered in his name.

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:

1. 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;
2. 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 5 below;
3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;
4. The Driving Record for the Applicant's daughter;
5. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of driving with more than 80 mgs alcohol in blood under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until November 15, 2012.
6. Vehicle Records for Plate #3V3848; #1V8756, #32H3241 and #01QU23; and
7. Address history for the Applicant's husband and stepson.

The Registrar did not call any witness.

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:

1. 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.
2. 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.
3. 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).

Issue # 1 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:

322. (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 # 2 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

The first issue is whether the vehicle was stolen at the time the vehicle was detained in order to be impounded. According to the Applicant's testimony, the vehicle was taken without her knowledge or permission. However, the Applicant must prove on the balance of probabilities that the vehicle was stolen. There was no evidence presented to support the contention that the Applicant's daughter intended to deprive the Applicant of the vehicle, either permanently or temporarily. The Applicant confirmed that she did not report the car as stolen because she did not want to add to her daughter's burden. Without evidence of any measures taken by the Applicant to ensure her daughter would not have access to the vehicle, and based on the information provided, the Tribunal finds that there is no evidence to support the allegation that the car was stolen. Accordingly, the Applicant did not meet the requirements set out in subsection 50.2(3)(a) of the Act.

The second issue is whether the order to impound the vehicle will result in exceptional hardship.

Section 10 of Regulation 63/98 is very specific. It provides the Tribunal with the criteria the Applicant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider if the Applicant has an alternative to the motor vehicle.

The Applicant confirmed that at the time the vehicle was impounded, it was in the driveway, it was not insured and no one was using it. While the Tribunal is sympathetic to the fact that the Applicant wanted to give the vehicle to her stepson, the Tribunal must first consider if there were alternatives to the impounded vehicle. The Applicant acknowledged that he stepson was currently taking the bus to work and that he owned a Mazda 2010. The Applicant also noted that three cars were registered in her husband's name and that no one was using the vehicle in question before it was impounded. While the situation is most unfortunate, the evidence indicates that the Applicant and her stepson have alternatives available. The Applicant has not established that the impoundment of the vehicle will result in exceptional hardship as set out in subsection 50.2.(3) of the Act.

Decision

After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal confirms the impoundment of the Applicant’s motor vehicle, and it will remain at the impound facility for 45 days.

LICENCE APPEAL TRIBUNAL

Chantal Proulx, presiding Member

RELEASED: May 31, 2012