Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2013-07-29
FILE: 8198/MVIA
CASE NAME: 8198 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: D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Jay Shanmorgan, Agent
Heard by teleconference: July 25, 2013
REASONS FOR DECISION
A hearing was held on July 25, 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 “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 until the conclusion of the 45 day impound period
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: 2006 Ford ESP. (the “vehicle”)
Date of Appeal: July 8, 2013
ISSUES
As set out in the Applicant’s request for hearing (Exhibit #1), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in sections 50.2(3)(d) of the Act. During the hearing, she also advised the Tribunal that the driver, her son, had taken the vehicle without her permission, thereby putting forward section 50.2(3)(a) of the Act as a ground of appeal.
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?
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 Registrar
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 driving while his ability was impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until December 5, 2013.
Copy of the Ministry of Transportation records indicating that the Applicant’s son owns a plated motor vehicle.
Evidence for the Applicant
The Applicant lives in a large conurbation in southern Ontario with available bus service, taxi service and emergency 911 services. She is in good health. She has a six year old grandson and there is a custody provision that her grandson reside with her. Her grandson is also in good health.
She states that, at the time of the impoundment, her son was living with her. She was aware of his driving record and had told him that he was not to use the car. She took no steps to conceal the car keys. Rather they hung on a hook by the door. She trusted her son not to take the vehicle.
The first time she was aware that the car was impounded was when she received a call from the police early in the morning of July 4, 2013. She did not provide any details of that conversation. When asked if she had taken steps to have her son charged with theft of the vehicle, she stated that it was up to the police to lay charges not her.
As evidence of hardship, the Applicant advised the Tribunal that she is responsible for taking her grandson to daycare each day and then get to work. Local bus service is available but, if she uses the bus, she has a one hour ride each way and has to leave work early. Her grandson also takes piano lessons, plays baseball and is involved in other activities. Taking him to these activities also involves long bus rides. The difficulty with the Applicant’s evidence is that, while it is all true, it has no impact on her current situation. In cross-examination she admitted that she had left work early only once, on the day the vehicle was impounded. Thereafter, she has rented a car and has been able to fulfill all of her transportation needs using the rental car. She did not give any evidence that she was unable to bear the cost of the rental car for the duration of the impoundment period because of impecuniosity or that it was a hardship to her to bear the cost of alternative transportation.
It appears from the Registrar’s documents that the Applicant’s son has a late model car. When asked by the Registrar’s agent if that car was available to her, especially given that it is illegal for her son to drive it, the Applicant advised the Tribunal that it had bald tires and was unsafe to drive. There was no discussion of the relative cost of putting new tires on that car as opposed to the rental cost of the vehicle she is now using.
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
There was no evidence before the Tribunal that the Applicant will suffer exceptional hardship as a result of the vehicle impoundment. The Tribunal acknowledges that she must incur the cost of the towing and impoundment itself as well as the cost of a replacement vehicle. The evidence is clear that the Applicant has an alternative to the impounded vehicle. As a result, the Tribunal may not get into a consideration of inconvenience or financial or economic loss. Accordingly, this ground of appeal must fail.
The question of whether the vehicle was stolen at the time of the impoundment was raised for the first time on appeal. The sole evidence in support of the Applicant’s submission that the vehicle was stolen at the time is her assertion that she was aware of her son’s driving record and told him not to take the vehicle. Notwithstanding this, she left the keys readily available. There was no evidence that she had complained to police at the time or taken any other steps to support her position that the vehicle was stolen. The Tribunal must be cognizant of the possibility that allegations of theft of a vehicle between family members are being used opportunistically. In making a determination that a vehicle was stolen by a family member, the Tribunal examines the surrounding circumstances such as efforts to conceal car keys and behaviour consistent with theft, such as complaints to the police. The Tribunal is aware that in a family setting the failure to press charges is not necessarily determinative, but the intention to deny use of the vehicle must be otherwise apparent. The Tribunal is satisfied that there are few or no indicia that this vehicle was stolen at the time of the impoundment on the evidence before it in this matter. Accordingly, this ground of appeal must fail.
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 until the conclusion of the 45 day impound period.
LICENCE APPEAL TRIBUNAL
D. Gregory Flude, Vice Chair
RELEASED: July 29, 2013