Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8201/MVIA
CASE NAME: 8201 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
8201 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 24, 2013
REASONS FOR DECISION
A hearing was held on July 24, 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”).
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 and motor vehicle in this appeal are as follows:
Owner: the Applicant
Motor Vehicle: 1996 GMC (the “vehicle”)
The Applicant appealed outside the 15-day appeal period and brought a motion to permit late filing. The Registrar consented to the Applicant’s motion and the appeal proceeded on the merits.
ISSUES
As set out in the Applicant’s Notice of Appeal (Exhibit #2), the owner appeals on the basis that the motor vehicle was stolen at the time it was detained in order to be impounded and that the loss of the vehicle will result in exceptional hardship, all as provided in sections 50.2(3)(a) and (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 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 22, 2015;
Copy of the Ministry of Transportation records indicating that the Applicant owns two other plated motor vehicles.
Evidence for the Applicant
At the outset of the hearing, the Applicant admitted the following:
he has another vehicle in working order available to him; and
the driver of the vehicle was suspended for impaired driving pursuant to the Criminal Code at the time he was stopped by the police and the vehicle was impounded.
The Applicant has two GMC trucks. He lent one to his daughter because her vehicle was currently out of service. He stated that he was aware his son-in-law had a suspended licence and no insurance so he advised his daughter not to permit his son-in-law to drive. Despite this admonition, on the morning of June 12, 2013, the Applicant’s daughter permitted her husband to drive the car a short distance to look for a second job. She stated that it was about a five minute drive. The driver then took the car for an extended period and was ultimately involved in a single car accident about 100 kms from home. The driver fled the scene but, ultimately, turned himself into police.
While the Applicant states that he advised the police that the vehicle had been taken without his permission when first contacted by police on the morning of June 12, the investigating officer, Mark Thomas, testified that he had never spoken to the Applicant. He did speak to the Applicant’s wife who advised him that the vehicle was on loan to their daughter. The officer then contacted the Applicant’s daughter and had her arrange for the driver to turn himself in. The Applicant’s daughter did not state that the vehicle was taken without permission.
Officer Thomas stated that he first became aware of the allegation that the vehicle had been taken without permission when he received a summons to attend this hearing about a week or two ago.
The Applicant is suffering from a serious medical condition that is likely to prove terminal in the next few months. Notwithstanding this fact, he did not allege that the impoundment of the vehicle caused him any hardship or inconvenience. Given the fact that he was able to spare the vehicle so it could be loaned to his daughter, it would be a very hard case to make that the loss of the vehicle would cause hardship.
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).
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 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.
(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
The simplest issue to address is the question of exceptional hardship. There was no evidence before the Tribunal that the Applicant will suffer any hardship as a result of the vehicle impoundment other than the cost of the towing and impoundment itself. 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 raises a more complex question. The Tribunal accepts the Applicant’s evidence that he was aware of his son-in-law’s abysmal driving record and long history of total irresponsibility. It accepts that he advised his daughter not to allow her husband to drive the car. Seen from this point of view, it can be said that the vehicle was being driven without the Applicant’s consent. Does a lack of consent mean that there was intent to deprive the owner of the vehicle either temporarily or permanently? The Tribunal concludes that it does not. The Applicant gave the vehicle to his daughter for her use. He did not intend to use the vehicle himself, but placed it at his daughter’s disposal. He now complains that she disposed of it in an irresponsible manner. She gave permission for her husband to drive the vehicle. The Tribunal finds there was no intent to deprive her of the use of the vehicle either temporarily or permanently and by extension, no intent to deprive the Applicant. 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 30, 2013