Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7696/MVIA
CASE NAME: 7696 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 -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: RUSSELL MCKNIGHT, Agent
Heard by teleconference: November 7, 2012
REASONS FOR DECISION
A hearing was held on November 7, 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: 2007 NISS MEL (the “vehicle”) Date of Appeal: October 19, 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. As an addendum to the Notice of Appeal, the Applicant attached the “Reasons for Appeal” wherein she stated that the vehicle was taken without her consent or knowledge; that she would not hide the keys to the vehicle from the suspended driver because he “is aware that he is not to use her vehicle at any time. With respect to exceptional hardship, the Applicant contends that the vehicle is the sole mode of transport for the family and that the Applicant will suffer exceptional hardship because of her “inability to drive to work, do groceries, attend personal medical appointment, and do whatever else she may need to do for her wellbeing. According to the Applicant, the children of the marriage will also suffer exceptional hardship “because of the Applicant’s inability to take her children to medical appointments, swimming lessons, taekwondo classes and Sunday school”. Further, the Applicant states that she “does not have a sufficient income to provide for the necessities for her family without the use of the vehicle”; and “might not have the funds available to release her vehicle from the impound yard…”
During the hearing, the Applicant responded to her Counsel’s questions explaining that she has had marital problems since her arranged marriage. At one point, due to a domestic violence issue, the couple was apart for about one year.
On the day in question, the Applicant was at home with the children when she received a telephone call informing her of the incident. That was the time that she noticed the car missing. The Applicant testified that she had not hidden the keys as she believes that her husband is not a child and should not have to be told what to do. She added that she never thought he would take the car.
The Applicant confirmed knowledge of a previous incident where her husband, the suspended driver, had been found driving her vehicle.
With respect to exceptional hardship, the Applicant attested that she is the only vehicle owner in the household and that she needs her vehicle for work, as well as driving her children to school or day care and extracurricular activities.
According to the Applicant, the older children are in school until two and are then taken by bus to the day care where she has to pick them up before 6 pm..
The Applicant testified to currently using a vehicle, which is not safe, for the children. The Applicant further affirmed that she has been evicted and has to pay her landlord three months arrears therefore she is unable to incur the cost of the impoundment.
In cross-examination, the Applicant confirmed that when a vehicle was impounded back in June she had to pay approximately $700.00 to have the car returned. This is the vehicle the Applicant has been using since the impoundment of her vehicle and which is in need of repairs. According to the Applicant, she does not have a regular pay cheque as she works on commission. The Applicant testified that her husband is self-employed in the body shop, but the business has been having financial problems as there is about $50,000.00 due in accounts payable which her husband has sold to loan companies. in order to make ends meet.
The Applicant stated that although there appears to be five vehicles registered to her name, she no longer owns all of them. Currently, she owns the impounded vehicle and the one she is using now. The Applicant explained that although she is the only licenced driver in the household, she owns two vehicles so that her parents can have the use of one of the two when they are visiting Canada.
As a response to the last question asked of her by the Registrar’s Agent the Applicant confirmed that her husband told her he took the car to go buy milk for the children.
In re-direct, the Applicant admitted that she is fearful of her husband, although he is more abusive than physical, as since the time he was arrested he tends to restrain himself.
According to the Applicant, she did not ask for theft charges to be laid as she did not wish to aggravate the relationship.
As for as the vehicles registered to her name, the Applicant confirmed that three have been sold to the junkyard and are no longer in her possession.
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 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 July 5, 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:
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 alluded to a previous decision of the Tribunal wherein the intent to deprive is considered and pointed out that this is a similar situation in that the relationship being that of husband and wife, it would not be wise to lay charges.
With respect to exceptional hardship, since the Applicant is not able to pay for the cost of the impoundment she will continue to be deprived of the use of the vehicle which will in turn cause more hardship.
In a summary statement, the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.
With respect to exceptional hardship, the Registrar’s Agent argued that the Applicant owns a second vehicle which she has been using to transport herself and her children. Since there is a second vehicle available to the Applicant, the Registrar’s Agent contends the Tribunal is precluded from considering any financial losses.
Regarding the ground for appeal that the vehicle was stolen,, the Registrar’s Agent also alluded to a previous decision of the Tribunal dealing with the intent to deprive the rightful owner of the use of a vehicle. The Registrar’s Agent pointed out that in this matter, the suspended driver was using that vehicle to go and buy milk for the children. According to the Registrar’s Agent there was no intent to deprive but rather to provide for the family.
The Registrar’s Agent maintains that a similar incident occurred not long ago, yet it appears that the Applicant has taken no precautions to hide the keys, or to discuss the issue with the suspended driver. The Applicant’s behaviour is her choice, but it is clear that the suspended driver had no intent to deprive the Applicant of the use of her vehicle, but rather to assist the family. Thus, Registrar’s Agent asserts that the test for “stolen” has not been met.
In rebuttal, the Applicant’s Counsel reiterated the Divisional Court position on consideration to be reviewed when accepting that an argument that a vehicle has been stolen. According to the Applicant’s Counsel, time is not a consideration, the vehicle was taken without her knowledge.
The onus is on the Applicant to establish the 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.
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 counterproductive to the situation as a whole. Having considered all the evidence presented, the Tribunal is of the opinion that, in this matter, laying theft charges against the suspended driver could considerably aggravate an already precarious domestic situation.
The Tribunal must consider the totality of the facts to determine if, in fact, the vehicle was stolen or if the argument is simply being conveniently invoked. As such, it is the issue of “intent” that concerns the Tribunal. The Applicant’s Counsel argues that the fact that the suspended driver took the vehicle without consent constitutes proof of intent to deprive. The Registrar’s Agent disagrees,, putting emphasis on the reason given by the Applicant as to how the suspended driver justified taking the car: he was simply going to buy milk for the family.
The Tribunal must concur with the Registrar’s Agent. The suspended driver did not take the vehicle for a joy ride, nor for an indefinite period of time thereby depriving the Applicant of her vehicle.. It is apparent that he was not planning to be out too long as he was simply providing for the family’s needs.
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.
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.
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: November 14, 2012