Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2013-04-30
FILE: 7994/MVIA
CASE NAME: 7994 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: VICTORIA SIM, Agent
Heard by teleconference: April 16, 2013
REASONS FOR DECISION
A hearing was held on April 16, 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”).
By Order dated April 17, 2013, the Tribunal ordered the Registrar to release the vehicle, with written reasons to follow. The following are those reasons for the decision.
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: 2011 HOND CXG (the “vehicle”)
Date of Appeal: March 25, 2013
As a preliminary matter, the Applicant requested that the Notice of Appeal be amended in order to include the grounds that the vehicle was stolen at the time of impoundment.
There was no objection from the Registrar’s Agent. The Applicant’s request was granted.
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 March 25th, 2013 the Applicant pleads for the return of the vehicle on the grounds that the car was stolen, and that the loss will cause exceptional hardship.
The Applicant explains that she had agreed to lend the suspended driver her vehicle on condition that he tell her, prior to taking the vehicle, who would be driving. The Applicant also stated that should he not be able to find a driver, she would to go with him to pick up the children after she finished working.
As for exceptional hardship, the Applicant contends that she is a single mother and needs the vehicle to get to work and to get the children to their various activities and medical appointments. The Applicant further stated that she herself suffers from a “chronic condition”.
During the hearing, the Applicant reiterated the comments on the Notice of Appeal emphasizing that the vehicle was taken without her knowledge and consent and that the loss of the vehicle will result in hardship.
The Applicant is a pharmacy technician who works Monday to Friday and sometimes on week-end. The Applicant rented a vehicle for the first couple of weeks, but at present she is walking as she could no longer afford the rental cost.
As for medical appointments, the Applicant attested that she has had to reschedule some appointments and relied on family and friends to drive.The Applicant stated that public transportation in a small city is not always available and that she cannot use taxis as the cost is beyond her means.
In cross-examination, the Applicant confirmed that she lives with the suspended driver, and that the children who are 6 and 9 are “bused” to school and have not missed any time.With respect to the children’s extracurricular activities, the children have “missed quite a few” but have attended some due to family kindness.
According to the Applicant, she lives from paycheque to paycheque, as she not only supports herself and her two children but also the suspended driver who is unemployed. Nonetheless, the Applicant confirmed that the suspended driver was able to borrow some money which she used to rent a car for the first two weeks.
The Applicant stated that she was concerned about the safety of the children who would be transported in an unsafe vehicle and therefore agreed to exchange her vehicle with the vehicle of the suspended driver’s friend who was going to drive him to Toronto. Since the vehicle was at her place of employment, the suspended driver and his friend were supposed to pass by to pick up the keys. The Applicant proffered that she later found out that the suspended driver had taken her spare set of keys from the place where she had hidden them and just took the vehicle without her permission or even telling her.
The Applicant asserted that she attempted to contact the police officer involved in the incident, but is reluctant to lay charges against the suspended driver as he has several problems with the Courts, and more charges would be detrimental to the family life.
The Applicant called the suspended driver as a witness. He testified that he took the vehicle without the Applicant’s consent, to go to Toronto to pick up his children.
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 until December 19, 2014.
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.
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.”
On the issue of “exceptional hardship”, the Tribunal has regard to 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.
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 maintained that the vehicle was taken without her knowledge which has caused a lot of emotional and financial stress which has aggravated her health condition. The Applicant argued that she is behind on her bills and that her family will not provide her with financial assistance.
In her summary statement, the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.
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.
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, is able to walk to work and has received assistance from family and friends.
Further, the Registrar’s Agent contends that no charges were laid, to corroborate the allegation that the vehicle was stolen, and that there has been no financial loss since the Applicant has been able to continue working.
The onus is on the Applicant to establish her grounds of appeal as provided in section 50.2(3)(a) or (d) of the Act.
In regard to the grounds of the car having been stolen, the Applicant testified that she had strictly forbidden the suspended driver to drive her vehicle. The spare keys were hidden and therefore she did not expect him to take the keys. Permission to take her vehicle to Toronto was based on the express condition that his friend would drive and that the friend would pick up the keys from her at work. The suspended driver acted contrary to her instruction and hence took the vehicle without her knowledge and consent.
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 accepts the evidence proffered by the Applicant that she did not give the driver 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 the driver. 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. Thus, 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: April 30, 2013