Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-06-28
FILE:
8118/MVIA
CASE NAME:
8118 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:
Mary Ann Spencer, Member
APPEARANCES:
For the Applicant:
No appeared
For the Respondent:
Jay Shanmorgan, Agent
Heard by teleconference:
June 20, 2013
REASONS FOR DECISION
A hearing was held on June 20, 2013, 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 “Act”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the Act. 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 HUMM (the “vehicle”)
Date of Appeal: June 3, 2013
The hearing in this matter was scheduled to commence at 1:30 p.m. by teleconference. When the Applicant failed to join the teleconference, the Tribunal adjourned the hearing for thirty minutes and requested that Tribunal staff attempt to reach the Applicant. Tribunal staff was unable to reach the Applicant by telephone. The Tribunal determined that the Applicant was properly served with notice of the hearing. After hearing the submissions of the representative of the Registrar, the hearing proceeded in the absence of the Applicant.
ISSUES
As set out in the Applicant’s Notice of Appeal (Exhibit #1), the owner appeals on the basis that the vehicle was stolen at the time it was detained as provided in section 50.2(3)(a) of the Act, and that the loss of the vehicle will result in exceptional hardship, as provided in section 50.2(3)(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
The evidence of the Applicant comprises the written reasons set out in his Notice of Appeal. The Applicant stated therein that he did not give permission to the suspended driver to drive the vehicle. The Applicant also wrote that he had previously made a report to the police that his vehicle had been stolen a week earlier by the same individual. Further, the Applicant wrote that the loss of the vehicle was causing hardship because he has a newborn baby and needs the vehicle.
Evidence for the Registrar
A summary of the Registrar’s evidence follows.
The documents tendered by the Registrar and admitted into the record 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 Driving While Disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until October 28, 2020.
Constable Paul Heffler of the Ottawa Police Service testified, by teleconference, on behalf of the Registrar.
Constable Heffler testified that he conducts patrols and had been advised by fellow officers before the impoundment that the suspended driver had been seen driving a Hummer. Constable Heffler was familiar with the suspended driver. At the time of the incident, he saw a Hummer drive by him and recognized the suspended driver. He stopped the vehicle and the driver was arrested on the scene. The vehicle was impounded.
Constable Heffler testified that within two hours of the impoundment, his sergeant began receiving calls from the Applicant asking how to get the vehicle released. No claims were made that the vehicle was stolen and no charges of theft have been laid.
The Registrar also submitted a certified copy of a document search conducted on the records of the Ministry of Transportation (Exhibit 3, Tab 4) which indicate the Applicant has a second plated vehicle, a 2002 Mercedes.
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.
O. Reg. 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) - that the motor vehicle which is impounded was stolen at the time it was detained in order to be impounded and that the impoundment will result in exceptional hardship.
Issue Should the Tribunal order the Registrar to release the motor vehicle on the basis that the motor vehicle was stolen at the time it was detained in the order to be impounded?
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 1 of the Code states:
“steal” means to commit theft…
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.
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
With respect to the issue of whether or not the vehicle was stolen, the testimony of the Registrar’s witness, Constable Paul Heffler, indicates that the Applicant called the Ottawa Police Service a number of times after his vehicle was impounded but did not mention the vehicle was stolen. No charges were laid. In his Notice of Appeal, the Applicant alleges that the vehicle was taken without his permission. While it is not necessary for charges to be laid for the Tribunal to make a finding that the vehicle was stolen, the Applicant did not participate in the hearing, and as a result, the Tribunal has no evidence before it with respect to the circumstances under which the vehicle was taken. Without any information to substantiate the Applicant’s allegation, the Tribunal finds the evidence does not establish that the vehicle was stolen as set out in subsection 50.2(3)(a) of the Act.
With respect to the issue of exceptional hardship, section 10 of O. Reg. 631/98 is very specific. It provides the Tribunal with the criteria the Applicant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the Applicant has an alternative to the motor vehicle. In this case, the documents submitted by the Registrar indicate that the Applicant has another plated vehicle. The only evidence before the Tribunal indicates that the Applicant does have an alternative to the use of the impounded vehicle, and therefore does not establish exceptional hardship as set out in subsection 50.2(3)(d) of the Act.
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
Mary Ann Spencer, Member
Released: June 28, 2013