Licence Appeal Tribunal
FILE: 8085/MVIA
CASE NAME: 8085 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: Self-represented
For the Respondent: Jay Shanmorgan, Agent
Heard by teleconference: June 4, 2013
REASONS FOR DECISION
A hearing was held on June 4, 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 “Act”).
Pursuant to section 50.2(5) of the Act, by Order dated June 5, 2013, THE TRIBUNAL ORDERED THE REGISTRAR TO RELEASE THE MOTOR VEHICLE. These are the reasons for that Order.
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 Honda UCL (the “vehicle”)
Date of Appeal: May 15, 2013
All documents were entered into evidence as exhibits with the consent of both parties.
FACTS
Evidence for the Applicant
The Applicant’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit #2.
In his statement detailing the grounds for appeal, the Applicant states that the vehicle was “in the possession and care of my 19 yr old son when it was driven by his friend without my knowledge or permission”.
During the hearing, the Applicant reiterated the statement in the Notice of Appeal testifying that the vehicle is primarily used by himself and occasionally by his son. According to the Applicant, unbeknownst to himself, on the night of the impoundment, the Applicant’s son allowed a friend to drive the vehicle as he, the son, had consumed alcohol.
The Applicant pointed out that he needs the vehicle to attend cancer treatments that he must undergo regularly. Further, the Applicant attested that he will not be able to afford the cost of the impoundment as he is on disability.
In cross-examination, the Applicant confirmed that he does not work and that his wife has a vehicle that she uses to travel to and from work. The Applicant has been able to use alternate transportation at great inconvenience and has not needed to cancel any medical appointments.
The Registrar’s Agent pointed out that the Applicant might avail himself of services provided by the community.
The Applicant affirmed that he has not considered renting a vehicle as the cost would be prohibitive given that he is facing thousands of dollars in impoundment fees.
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 four 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 April 8, 2016.
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.
APPLICATION OF LAW TO FACTS
In closing, the Applicant stated that neither his son nor his son’s acquaintance have the resources to cover the costs, thus he will have to incur the “lion’s share” of the impoundment fees.
In his summary statement, the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.
With regard to exceptional hardship, the Registrar’s Agent points out that there are alternate modes of transportation available to the Applicant thus the legislation does not allow further consideration of this ground.
The Registrar’s Agent argued that the Applicant has not lost wages as he is on disability, and has not missed medical appointments.
The Registrar’s Agent asked the Tribunal to dismiss the appeal on the ground of due diligence as the Applicant had relinquished control of the vehicle and therefore was not able to exercise due diligence as required by the legislation.
While the Tribunal, based on the evidence, agrees with the Registrar’s Agent’s submission that release of the vehicle on the grounds of “exceptional hardship” and “due diligence” have not been met in this instance, the Tribunal also heard evidence which points to the fact that the vehicle was stolen at the time of impoundment. Thus, the Tribunal must also assess the appeal based on section 50.2(3)(a) of the Act.
The meaning of “stolen” is not defined in the 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, c. C-46, provides guidance.
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 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.
The Applicant appeared to be sincere and forthright in his 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 he did not give his son’s acquaintance permission to drive his vehicle.
As such, the Tribunal finds that the vehicle was “stolen” and therefore the criteria of section 50.2(3)(a) of the Act has been met and the appeal succeeds on that 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., Member
Released: June 21, 2013