Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-05-17
FILE:
8056/MVIA
CASE NAME:
8056 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:
JAY SHANMORGAN, Agent
Heard in Toronto:
May 9, 2013
REASONS FOR DECISION
A hearing was held on May 9, 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 CONFIRMS THE IMPOUNDMENT. As a result the Applicant’s motor vehicle will remain detained at the impound facility for 180 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: 2008 FORD COF (the “vehicle”)
Date of Appeal: May 1, 2013
As a preliminary matter, a discussion ensued as to the grounds for an extension to the period of appeal requested by the Applicant. In spite of originally objecting, the Registrar’s Agent conceded, thus the hearing proceeded.
The Applicant sought to enter new documents into evidence, specifically, a note from her physician as well as financial statements, leasing and insurance agreements. The Registrar’s Agent’s objection regarding the irrelevance of these documents to the ground of appeal was noted. The documents were entered as Exhibit #5. The Tribunal advised that the decision as to admissibility was reserved.
All other 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. In the Notice of Appeal, received by the Tribunal on May 1st, 2013 the Applicant pleads for the return of the vehicle on the grounds that the car was taken without her permission and was therefore stolen by her son. The Applicant further states that she does not have the financial means to incur the cost of the impoundment, and may have to file for bankruptcy.
The Applicant’s interpreter was affirmed prior to the commencement of the hearing.
During the hearing, the Applicant asked that she be allowed to pay “slowly” as she does not have the funds to pay all at once, she asked to be able to pay monthly as she does not wish to destroy her credit rating.
The Applicant further requested that the vehicle be returned to her as she has no income to pay for the “car”. The Applicant pleaded for a payment plan.
The Applicant testified that she no longer cares what happens to her son, as he has caused “too much damage”, given his mental and alcohol problems. The Applicant confirmed that this is the third time that she has had a vehicle impounded and testified that she has hidden keys but her son steals them. Her son was living with her because he was under her custody.
In cross-examination, the Applicant confirmed that each time her vehicles were impounded it was her son, the suspended driver at the wheel.
According to the Applicant she never gave permission for her son to take the car. She attested that she is aware her son is on probation and unable to drive; he needs a designated driver to take him to work and back home.
The Applicant asserted that she has attempted to charge her son with theft, and explained that when she called the station, she was told to call back.
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 for life.
The Registrar introduced the statement from the officer involved in the incident, Brian Recoskie, of the Ontario Provincial Police.
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 section 50.2(3)(a).
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.”
APPLICATION OF LAW TO FACTS
In closing, the Applicant maintained that she will be pressing charges against her son, further she wants the vehicle back in order to return it to the dealership.
In 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 were 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.
According to the Registrar’s Agent the Applicant’s testimony supports exceptional hardship, but not that the vehicle was stolen. However, the ground of exceptional hardship is not available to the Applicant given s. 50.2(4) of the Act: there was a previous impoundment of this vehicle
The Registrar’s Agent contends that the Applicant has had her vehicle suspended not once but three times, thus the Applicant is not taking action to ensure that a suspended driver has no access to any vehicle.
Prior to setting out the reasons for the decision, the Tribunal must rule the statement from the Officer involved as inadmissible, since the notes are not sworn and the Officer was not available for cross examination by the applicant. The Tribunal also finds inadmissible the documents introduced by the Applicant (noted as Exhibit 5) at the hearing, as said documents are irrelevant to whether the vehicle was stolen.
The onus is on the Applicant to establish her grounds of appeal as provided in section 50.2(3)of the Act.
The Tribunal accepts the Applicant’s argument that due to the existing familial relationship, the Applicant was unable to lay charges against her son. 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.
The Tribunal does accept the evidence proffered by the Applicant that she did not give the driver permission to drive her vehicle, and had this been a first incident, the Tribunal might have looked at the situation more favourably. Yet, this is neither the first nor the second instance, it is the third. It is therefore clear that the Applicant, although aware of the situation did not take all necessary precautions to prevent her son from driving the vehicle.
Thus, the Tribunal, although sympathetic to the Applicant’s plight has no alternative but to find that the vehicle was not stolen.
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 180 days.
LICENCE APPEAL TRIBUNAL
Antoine Aouad, M.D., Presiding Member
RELEASED: May 17, 2013