Licence Appeal Tribunal
FILE: 7623/MVIA
CASE NAME: 7623 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.
7623 Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Antoine Aouad, M.D., Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: September 26, 2012
REASONS FOR DECISION
A hearing was held on September 26, 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.
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 MITS LES (the “vehicle”)
Date of Appeal: September 7, 2012
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. On page 3 of the Notice of Appeal, the Applicant stated that the vehicle is needed as she must take her children daycare prior to attending a co-op course she is taking. Without the vehicle, the Applicant believes that she will have to drop the program as she is not able to be at school on time and to pick up the children on time. The Applicant goes on to explain that she misplaced her keys and does not know who was driving the vehicle when it was impounded.
A letter from the Cooperative Education Teacher for the facility attended by the Applicant is attached to the Notice of Appeal, and confirms the Applicant’s enrolment.
During the hearing, the Applicant reiterated the comments on the Notice of Appeal, emphasizing that she gave the keys to a friend to get the “smokes” from the car. She was not intending to drive home herself, but did not give permission for any one else to drive the vehicle, nor did she know her vehicle had been driven by anyone else.
In cross-examination, the Applicant affirmed that she walked home and found the car in the driveway, but she has no idea how the car got there. She had given the keys to a friend and forgot to ask for them back. She now knows that her ex-boyfriend was the suspended driver who drove the vehicle.
The Applicant confirmed that the vehicle was impounded approximately one hour after she got home and she has no idea how the car was taken.
The Applicant attested that she was not able to lay charges of theft against the suspended driver because the police believed that she was in the car. Later, she tried to lay charges, after hearing from the lawyer that she made a 911 call reporting her car stolen, but once again the police refused to accept her statement that the vehicle had been stolen.
The Applicant asserted that due to her state of intoxication she did not remember making the 911 call, but denied vehemently the possibility that she had willingly given care and control of her vehicle to her ex-boyfriend.
According to the Applicant, she has heard conflicting information from her friends and the police and has no idea what happened.
With respect to exceptional hardship, the Applicant confirmed although she has been provided with bus passes, using public transportation is not suitable because of her schedule and that of her children..
The Applicant asserted that she is not able to obtain assistance from her family, nor from the father of the children.
There has been a health related incident but the walk-in-clinic is within walking distance.
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 Driving While Disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until November 24, 2016.
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) Everyone 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 noted she has learned her lesson and will not give her keys to anybody else again.
In her 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 do not support the grounds for appeal that the vehicle was stolen. The Applicant was intoxicated that evening and is unaware of what happened. Since the vehicle ended up in the Applicant’s driveway, the Registrar believes that it is possible that the Applicant gave permission for her vehicle to be driven and therefore the vehicle was not stolen.
With respect to exceptional hardship, the Registrar’s Agent maintains that the Applicant has been able to use public transportation to get and from school and health matters have been dealt with as the Applicant was able to walk to the clinic. There has been no loss of income as the Applicant is part of the Ontario Works Program.
The onus is on the Applicant to establish their grounds of appeal as provided in sections 50.2(3)(c) and (d) of the Act, respectively: that the vehicle was stolen and she has suffered exceptional hardship.
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 her knowledge or consent, 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 is the laying of charges. The Tribunal as a rule recognizes that 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. Nonetheless, the evidence in this matter is that the Applicant’s attempt to lay charges was not accepted by the police as it was claimed the Applicant was in the vehicle. The Applicant appears fuzzy on the details of how the keys got in the hands of the suspended driver or how the vehicle got to her driveway, claiming that she herself walked home. According to the Applicant her lack of recall is due to the fact that she was highly intoxicated at the time. The Applicant is adamant, though, that she did not allow anyone else to drive her vehicle.
The Tribunal notes an apparent conflict between the Applicant’s written statement and her viva voce evidence. In her written statement, the Applicant maintains that she “misplaced her keys”. During the course of the hearing, the Applicant professed to have given the keys to a girlfriend. In the written statement, the Applicant contends she did not know who drove the car. At the hearing the Applicant testified that she had tried to lay charges against the suspended driver, obviously proving that she knew who had driven the car.
Given the discrepancies in the evidence and by the Applicant’s own admission her apparent state of confusion due to the intoxication, the Tribunal finds the Applicant not to be a reliable or credible witness.
Thus, after assessing the evidence presented with respect to section 50.2(3)(a), the Tribunal finds that the Applicant’s vehicle had not been stolen at the time of impoundment.
With respect to exceptional hardship, Section 10 of Regulation 631/98 provides the criteria to be considered and those not to be considered in determining the appeal under this section, as follows:
- (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…
Only if no alternative exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors.
It is clear from the evidence that, albeit inconvenient, there are alternate modes of transportation are available to the Applicant, so that she may get to and from daycare and her educational facility.
As the Applicant is part of the Ontario Works Program, there is no loss of wages to consider, nor are there extra expenses as the Applicant has been provided with bus passes.
Thus, having found that an alternative to the impounded vehicle exists, the Tribunal’s enquiry must come to an end and the Applicant’s defence of exceptional hardship must fail.
The Tribunal cannot assess exceptional hardship based on the cost of impoundment as the legislation provides options for the recovery of losses.
As such the Tribunal finds that the criteria of Section 10 (1) of the Ontario Regulation 631/98 are not met.
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
_______________________
Antoine Aouad, M.D., Presiding Member
RELEASED: October 09, 2012