Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2012-09-10
FILE:
7588/MVIA
CASE NAME:
7588 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 Applicant:
OMAR SYED, Counsel
For the Respondent:
SONIA DE SANTIS, Agent
Heard in Toronto:
September 6, 2012
REASONS FOR DECISION
A hearing was held on September 6, 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: 1997 HOND CRV (the “vehicle”)
Date of Appeal: August 21, 2012
At the commencement of the hearing, it was ascertained that that the Applicant’s Counsel was not in possession of a copy of the Respondent’s submissions.
A thirty-minute recess was granted to allow for the photocopying of the document as well as afford the Applicant’s Counsel an opportunity to review.
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 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 statement prepared for the Tribunal dated August 20, 2012, the Applicant detailed how the vehicle was taken without her “consent or knowledge,” while she was sleeping. The Applicant’s explains that:
o she was aware of her spouse’s ineligibility to drive,
o she does not allow him to drive the car,
o she had hidden the keys from him on occasion, particularly when she is aware of his consumption of alcohol.
The Applicant further contends that the loss vehicle is causing severe financial hardship since the Applicant “does not have a sufficient income to provide for the necessities for her family without the use of her vehicle”. According to the Applicant, she “might not have the funds available to release her vehicle from the impound…"
The following documents were attached to the Notice of Appeal:
o letters from Applicant’s solicitor
o copy of Applicant’s driver’s licence
o copy of vehicle ownership
o Licence Appeal Tribunal decisions
In her testimony, the Applicant explained that she has been living with the disqualified driver for approximately three years. The Applicant confirmed that she was aware of her common-law’s spouse’s record and did not allow him to drive the vehicle.
The Applicant confirmed the reason a charge of theft was not laid against the disqualified driver: simply that the situation at home is perilous as is the disqualified driver’s freedom; the Applicant felt that laying charges would not only incur him more jail time but would also further jeopardize the home situation.
The Applicant testified:
o The vehicle is also used by her son, who is involved in a college summer co-op programme. Initially the Applicant rented a vehicle and exchanged it with her sister’s vehicle, so that her son can get to his destination. As the Applicant’s son is only 19, he is not able to drive a rental car.
o The cost of a cab from their home to the location of the co-op programme is around $70.00 each way.
o The Applicant would have to leave home around 5 am if she were touse public transportation.
o A cab to the Applicant’s place of employment would be around $80.00.
o The Applicant is struggling financially due to the extra costs incurred by the impoundment.
The Applicant reiterated her comments in the Notice of Appeal, in that she confirmed she was sleeping when the vehicle was taken,;she at no time gave her spouse permission to drive the vehicle.
Prior to his client’s cross-examination, the Applicant’s counsel alluded to the similarities between the Applicant’s case and the precedents submitted, suggesting that although no charges were laid, the vehicle may still be considered stolen.
In cross-examination, the Applicant attested:
o That no charges were laid, because “it would cause more problems” in the relationship.;
o She did not know what time he took the vehicle;
o She did not think he wanted to deprive her of the use of the vehicle;
o The vehicle was not broken into;
o The vehicle was not in an accident;
o Her spouse simply wanted to go to work and return;
o She had made it perfectly clear to her spouse that he was not to drive the car.
With respect to exceptional hardship, the Respondent’s Agent questioned the Applicant as to how she has been getting around. The Applicant re-explained that she had rented a car for a week, and that her family has helped. There are no buses in the area and a cab would be prohibitive. She has missed no work time.
It was confirmed that the Applicant is in good health, has not missed any medical appointments and believes there is 911 service in the area.
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 called Constable Richard Cain on his cell phone to testify.
Constable Cain testified as to how the vehicle came to be impounded, as well as to the fact that he is aware other officers have seen the disqualified driver at the wheel on several occasions. He personally never did.
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 Counsel objected to the evidence of the Officer as hearsay and asked the Tribunal that it be excluded.
The Applicant’s Counsel then quoted from one of the decisions submitted, emphasizing that the vehicle was stolen; no charges were laid due the fact that the Applicant did not wish to be responsible for her spouse’s possible incarceration for several months.
The Registrar’s Agent asked the Tribunal to accept the Officer’s evidence that the disqualified driver had in fact been seen driving the vehicle on several occasions. According to the Registrar’s Agent the vehicle was not stolen because even by the Applicant’s own admission he had no intent to deprive her of her vehicle, and there was no harm intended or caused to the vehicle.
With respect to exceptional hardship, the Registrar’s Agent maintains that the Applicant has had the use of other vehicles therefore the criteria stipulated by the section has not been met.
The Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.
Prior to setting out the reasons for decision, the Tribunal will address the Applicant’s Counsel’s objection with respect to the evidence of the police officer. The Tribunal finds the evidence inadmissible. PC Cain did not himself see the disqualified driver at the wheel of the vehicle on prior occasions. He is simply revounting what others have told him regarding their observations, presumably to suggest a pattern of conduct by the Applicant and her spouse. The other officers were not available to be cross examined regarding their observations. The Tribunal is not prepared, in the circumstances to give any weight to this testimony.
The onus is on the Applicant to establish her 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 he has suffered exceptional hardship.
The Tribunal 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. The Tribunal must use a great deal of circumspection in considering this argument.
One of the indicia that a vehicle has been stolen, of course, is the laying of charges. Another is the lack of a relationship between the owner and the driver to support an inference that the owner has lent the vehicle to the driver. It does not flow from these indicia that one family member cannot steal a vehicle from another. To complicate the analysis, in a spousal relationship, the laying of charges may result in such bad feelings that the owner does not want to contemplate such action.
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. There may be instances when specific permission for use was not given but the overall facts support a conclusion that use of the vehicle by the suspended driver is acquiesced in by the owner. The Applicant presented as a credible witness. The Tribunal heard evidence that she had made her spouse aware that he was not to drive the vehicle, in fact she regularly hid the keys to her vehicle on occasions when she knew her spouse to be consuming alcohol. The Applicant also described how she drove the disqualified driver to his places of work. If she was acquiescent in his use of the car, she would have simply permitted him to use it and return it at his convenience.
The Registrar’s Agent introduced the element of intent, maintaining that the disqualified driver did not wish to deprive the Applicant of the use of the vehicle nor cause her or the vehicle harm. However ,from the evidence outlined above as well as the context that the suspended driver took the vehicle while the Applicant was asleep, it is a reasonable inference that on this occasion, the driver did form an intention to deprive the applicant of her vehicle albeit temporarily. The disqualified driver took the vehicle without her knowledge, consent or acquiesance.
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 Applicant’s spouse stole the vehicle, the Applicant’s appeal succeeds. Had the only issue before the Tribunal been exceptional hardship, the Tribunal would have found that there is no evidence that the Applicant suffered exceptional hardship. That is not to say that she has not suffered inconvenience, but on the evidence there are alternative means of transport available to her and ready access to all necessary services, including emergency services.
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: September 10, 2012