Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2013-08-08
FILE:
8236/MVIA
CASE NAME:
8236 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 Applicants:
Self-represented
For the Respondent:
Jay Shanmorgan, Agent
Heard by teleconference:
August 6, 2013
REASONS FOR DECISION
A hearing was held on August 6, 2013, at Toronto, Ontario, 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”).
THE TRIBUNAL orders the Registrar to release the motor vehicle.
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: 2003 Mazda PDS (the “vehicle”)
Date of Appeal: July 19, 2013
ISSUES
As set out in the Applicant’s request for hearing (Exhibit #1), the owner appeals on the basis that the motor vehicle was taken without her permission at the time it was detained in order to be impounded and that the loss of the vehicle will result in exceptional hardship.
FACTS
Evidence for the Applicant
A summary of the Applicant’s evidence follows.
The Applicant is the owner of a restaurant which opened only a few weeks ago. Her partner in the business is the brother of the suspended driver. On the day her vehicle was impounded, the Applicant was closing the restaurant. The suspended driver, who drops into the business from time to time, came in and asked her if she would be there for a while. When she said she would, he left, telling her he would return shortly. The Applicant testified that he did not return but that she later received a call from police telling her that her vehicle had been impounded. She was unaware that the suspended driver had taken her keys which were on the restaurant counter. She testified that she did not give him permission to take the vehicle and was unaware he had done so until she received the call from police.
The Applicant testified that her business partner does not have a vehicle. Because the business is new and not yet established, food supplies are being purchased in small quantities on an as needed basis until business stabilizes. The Applicant uses her vehicle for this purpose. She also uses her vehicle to assist her brother on occasion by picking up his children from day care. Since the impoundment, the Applicant has had some assistance with rides from friends but has also taken the bus, carrying multiple bags of groceries. While her health is generally good, she was in a car accident approximately two years ago and finds carrying groceries somewhat difficult.
The Applicant opened the restaurant business using her savings and has no money in the bank. The business is not making money yet and she fears that if she has to turn customers away because of unavailable menu choices due to lack of supplies that it will not survive. While business is starting to pick up, she cannot afford to pay the cost of the impound fees.
The Applicant has spoken to the suspended driver since the incident. While he has expressed some contrition, he has made no offer to assist her. She learned that he took the vehicle in order to visit a friend and she stated that he was not trying to steal it: rather, he told her he thought it “would be okay” to borrow it.
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 operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams under the Criminal Code of Canada pursuant to which the driver’s licence of the driver is under suspension for life.
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 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.”
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
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.
Section 10(4) of O. Reg. 631/98 requires that an owner demonstrate that every reasonable option to the impounded vehicle has been considered. The Applicant focused on the difficulties she is having in transporting supplies to her new restaurant business. However, since the impoundment of her vehicle, she has been able to use public transportation, although with some inconvenience. She has also had some assistance from friends. The Tribunal therefore finds that the Applicant does have a reasonable option to the impounded vehicle.
The Applicant expressed concern about her ability to pay the costs associated with the impoundment indicating that she did not have the funds available having invested her savings in her new business which has yet to make a profit. O. Reg. 631/98 does not permit the Tribunal to consider the financial loss the Applicant may incur as a result of the impoundment when there is a reasonable alternative available to the impounded vehicle. Further, section 55.1(27) of the Act provides that the owner of a motor vehicle that is impounded may bring an action against the driver of the motor vehicle at the time the motor vehicle was detained to recover any costs or other losses incurred by the owner in connection with the impoundment.
The evidence indicates that the Applicant does have an alternative to the use of the impounded vehicle, and therefore she has not established exceptional hardship as set out in subsection 50.2(3)(d) of the Act.
The Applicant did not indicate that she was appealing the impoundment on the basis that her vehicle was stolen and in fact testified that the suspended driver was not trying to steal it. However, she testified that the vehicle was taken without her permission after the suspended driver took the keys which she stated she had left on a counter in the restaurant. The Applicant testified that she was unaware that the suspended driver had taken the vehicle until she was notified by police. However, she did indicate that the suspended driver asked her if she would be staying at the restaurant for a while before he left. In the absence of an explanation from the Applicant in this regard, the Tribunal concludes that the question was asked because the suspended driver intended to return the Applicant’s vehicle to her before she was ready to leave. The suspended driver took the Applicant’s vehicle without permission and thereby deprived her of it temporarily. Therefore, the Tribunal finds that the vehicle was stolen in accordance with subsection 50.2(3)(a) 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 orders the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Presiding Member
RELEASED: August 08, 2013