Licence Appeal Tribunal
FILE: 7918/MVIA
CASE NAME: 7918 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.
7918 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 in Toronto: March 13, 2013
REASONS FOR DECISION
A hearing was held on March 13, 2013, 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”).
Pursuant to section 50.2 (5) the Tribunal ORDERS THE REGISTRAR TO RELEASE THE VEHICLE.
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: 2010 CHRY 30C (the “vehicle”)
Date of Appeal: February 19, 2013
The Applicant not being present at the time scheduled for the hearing a 30 minute grace period was granted.
As a preliminary matter the Registrar’s Agent pointed out that there is a preliminary motion on the table to request permission for late filling.
The Applicant explained that she was away at the time of the impoundment.
The Applicant admitted that the Notice of Impoundment is dated January 29th, 2013, but she did not return to the country until January 31st, 2013,
According to the Applicant, upon her return she had difficulty in obtaining information on the appeal process. According to the Applicant, she was not informed that she could appeal until February 15, 2013. The Registrar Agent pointed out that the appeal was not filed until the February the 19th, 2013, and questioned the Applicant as to the reasons for the delay.
After some consideration, the Registrar’s Agent consented to the appeal.
The Applicant sought to enter into the record a letter from a proposed witness PC Laura Brabant. There being no objection the letter was entered as an exhibit.
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. In the Notice of Appeal, received by the tribunal on February 19th, 2013 the Applicant lists the grounds for appeal as exceptional hardship.
On March 06th, 2013, the Tribunal received an amended Notice of Appeal adding the grounds that the vehicle was stolen at the time of impoundment. The Applicant wrote that the vehicle was taken without consent while she was away from the country. Although she allowed her ex-husband to stay at her place, she left the keys at home so that they could be used by her landlord if he needed to move the car while she was away.
With respect to financial hardship, the Applicant states that:
- she cannot afford the impoundment fees
- she will have to sell her car to cover costs and be settled with the $ 35,000 still outstanding on the car
- she had rented a vehicle at the cost of $200.00 per week
- since there is limited mileage on the rental agreement, the Applicant cannot use the rental to travel to her regular locations
- taking public transportation is not an option as the applicant needs to carry large sample equipment with her.
The Applicant attached the following documents to her Notice of Appeal:
- pictures of the sample equipment the Applicant needs to carry for her job;
- list of debits and credits for the month
- American airlines boarding pass
- Scotiabank bank statement for February 2013.
- e-mail from claims adjuster indicating claim had been denied
- rental agreement with Advantage
The letter from PC Laura Brabant dated 2013-03-11confirming that she discussed with the Applicant the ramification of a theft charge against her ex-husband and suggested that she contact her insurance provider.
During the hearing, the Applicant read a written statement into the record reiterating the statements contained in the Notice of Appeal, detailing her efforts to obtain information on the procedures to obtain the return of her car and the fact that she has bad credit and unable to obtain further loans. The Applicant further believes that if the vehicle is sold the Applicant believes that she will need to go on welfare.
The Applicant pointed out that she travels once a month and always leaves the car and the keys at home, assured that in the past her ex-husband had never driven her car before.
The Applicant explained the reasons for renting a vehicle as it is less expensive than taking public transportation and taxis.
In cross-examination, the Applicant confirmed that she has rented a vehicle which has been used as an alternate mode of transportation.
According to the Applicant she is still paying for the vehicle that was impounded when her ex-husband drove while impaired. The Applicant confirmed that her ex-husband was told he could not drive her vehicle due to his involvement in the previous impoundment.
In response to the Registrar’s Agent the Applicant affirmed that she believed that her ex-husband intended to deprive of the vehicle. She further testified that her ex-husband told her he just wanted to show off her car, and would have returned it, and she would never know he drove it.
The Applicant did not consider laying charges as she needed her ex-husband’s income, which she would lose if he went to jail. The Applicant is now quite concerned as her ex-husband left this morning and she does not know what she will do without his portion of the rent and his assistance with groceries.
The Registrar’s Agent pointed out that the Applicant’s financial situation pre-existed the impoundment. The Applicant pointed out that she had been able to manage, but now with the extra expenses she will be unable to cope.
The Applicant called a witness who confirmed the steps that the Applicant had taken to try to get her car back after she returned from her trip, and who helped her obtain a rental car.
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 February 23, 2013.
The Registrar did not call any witnesses.
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 Marshall v. 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 stated that she had no idea that her husband would do such a thing or else she would never have left the keys at home.
In her summary statement the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.
With regards to exceptional hardship, Registrar’s Agent, points out that there are alternate modes of transportation available to the Applicant as she has rented a vehicle, thus legislation does not allow further consideration.
The Registrar’s Agent maintained that the car was not stolen and therefore the criteria required under 50.2(3)(a) of the Act. was not met. The vehicle may have been taken without the Applicant’s consent, but it was never the suspended driver’s intent to deprive her of the vehicle. This premise is substantiated by the fact that the suspended driver called the Applicant to advise her of the impoundment and that according to the Applicant he was planning to take the car back and she would never have known he had driven it.
Further, the Registrar’s Agent contends that no charges were laid, to corroborate the allegation that the vehicle was stolen.
The onus is on the Applicant to establish his grounds of appeal as provided in section 50.2(3)(a) or (d) of the Act.
In regards to the grounds of the car having been stolen, the Applicant testified that she had strictly forbidden her ex-husband to drive her vehicle, and that she did not expect him to take the keys.
The Applicant appeared to be sincere and forthright in her testimony, and the Registrar’s Agent’s cross-examination did not lead to any doubts about the Applicant’s credibility.
The Tribunal finds it very plausible that the Applicant would have taken the actions she said she did (telling her husband not drive the car but leaving the keys for the landlord to move the car if necessary).
The Tribunal accepts the evidence proffered by the Applicant that she did not give his husband permission to drive her vehicle.
The Tribunal also accepts the Applicant’s argument that due to the existing relationship, the Applicant felt unable to lay charges against her husband. The laying of charges against the driver is not a pre-condition to the Tribunal finding that the car was stolen within the meaning of the Act.
As such the Tribunal finds that the factor set out in criteria of section 50.2(3)(a) of the Act has been met and the appeal succeeds on that ground. As such, the Tribunal does not need to consider the exceptional hardship ground.
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: March 21, 2013