7660 v. Registrar of Motor Vehicles, 2012 CanLII 67843

Licence Appeal Tribunal

Tribunal d'appel en matière de permis

DATE: 2012-10-31

FILE: 7660/MVIA

CASE NAME: 7660 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: Self-represented

For the Respondent: RUSSELL MCKNIGHT, Agent

Heard by teleconference: October 23, 2012

REASONS FOR DECISION

A hearing was held on October 23, 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: 1989 MERZ 30E (the “vehicle”)

Date of Appeal: October 2, 2012

As the Appeal was filed beyond the time period allowed the Applicant filed a Motion to extend. The Registrar did not oppose the extension 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 as provided in section 50.2(3)(a) 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?

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. The Applicant wrote that the vehicle was stolen from his daughter’s house.

During the hearing, the Applicant stated several times that he wants his car returned.

He asserted that he laid charges against the person who took the car.

In cross-examination, the Applicant confirmed that he noticed the car missing around 5:30 in the morning when he had to go to work and could not find his car. According to the Applicant, he called his family to help look for the car, and even called the building’s towing company to ensure the car had not been taken by building security. Since no one knew what had happened to the car, the Applicant asked his son to call the police.

The Applicant testified that eventually he was told by the police officer to file an appeal with the Tribunal.

The Applicant asserted that he was the last person to use the car, but misplaced the keys.

By way of clarification, the Tribunal asked the Applicant if he knows the suspended driver, the Applicant replied that he did not.

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 4 below;

3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;

4. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Blood/Alcohol Content in Excess of .08 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until May 29, 2013.

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:

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) (b) (c) and (d).

The meaning of “stolen” is not defined in The Highway Traffic Act.

The Shorter Oxford English Dictionary, 3^rd 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.”

APPLICATION OF LAW TO FACTS

In closing, the Applicant was adamant that he has no money to pay for the cost of impoundment and wants the car back.

In his summary statement, the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.

According to the Registrar’s Agent, in situations where the vehicle is deemed to have been stolen and charges have been laid, it is not the Registrar’s policy to follow through with a hearing. In this matter, it appears that the Applicant has been attending a number of police stations asking for relief, yet the only advice given to the Applicant by police was that the matter may be appealed to the Tribunal. The Registrar’s Agent’s argued that there is absolutely no evidence that police have laid theft charges against the suspended driver.

Further, according to the Registrar’s Agent, the Applicant’s actions do not support the contention that the vehicle was stolen. He claims he parked the car, lost the keys and the next morning having found the car missing. Yet, he still went to work and delegated the responsibility of calling the police to his son.

The Registrar’s Agent asserts that had the police had evidence that the vehicle had been stolen, the police would have encouraged the Applicant to lay charges against the driver. There is no evidence charges were laid.

Given the Applicant’s excitability during the hearing and his apparent lack of understanding of the procedures, the Tribunal requested, by letter (copied to the Registrar), evidence that the theft of the vehicle had been reported to police as, during the course of his evidence, the Applicant made reference to an occurrence report.. Confirmation that the matter was reported to both the Insurance company and the police was received by the Tribunal by fax on October 23, 2012.

The onus is on the Applicant to establish his grounds of appeal as provided in section 50.2(3)(c) of the Act. Unless a familial relationship exists, one suggested indicia that a vehicle has been stolen is the laying of charges against the person who took vehicle.

The Tribunal has no reason to disbelieve the evidence that the Applicant does not know the suspended driver. The evidence shows that the Applicant reported the vehicle as stolen. A police report was indeed filed. Based on the evidence before the Tribunal and the applicable law, the Tribunal concludes that the vehicle was taken without the Applicant’s consent and with the intention to deprive the Applicant of it.

As such the Tribunal finds that the criteria of section 50.2(3)(c) of the Act has been met and the 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: October 31, 2012