Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 8226/MVIA
CASE NAME: 8226 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: Antoine Aouad, M.D., Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Victoria Sim, Agent
Heard by teleconference: August 7, 2013
REASONS FOR DECISION
A hearing was held on August 7, 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 August 8, 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: 2007 HOND UCD (the “vehicle”)
Date of Appeal: July 18, 2013
All documents were entered into evidence as exhibits with the consent of both parties.
FACTS
Evidence for the Applicant
A summary of the Applicant’s evidence follows.
The Applicant’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit # 1. In the Notice of Appeal, the Applicant wrote that the vehicle was stolen at the time of the impoundment as the Applicant had removed the plates to prevent her spouse from driving the vehicle. According to the Applicant charges have not been laid as she does not wish to add to her spouse’s current legal issues. The Applicant further contends that “the sooner she gets the car back” the sooner she will sell it.
During the hearing, the Applicant testified that her husband took the car without permission while the Applicant was at work. According to the Applicant not only did she take the keys with her, but she also removed the plates to prevent her former husband from driving. Upon returning from work, the Applicant noticed the car missing and realized that she had left a spare set of keys at home which enabled her husband to take the car.
The Applicant reiterated her statement in the Notice of Appeal that she intends to sell the vehicle.
In cross-examination, the Applicant confirmed that she removed the plates after her former husband had been drinking in order to prevent him from driving. The Applicant attested that she also took the keys but forgot about the spare set.
The Registrar’s Agent reviewed the suspended driver’s conviction record with the Applicant emphasizing that the person who had care and control of the vehicle had a fraudulent licence in his possession as well.
The Applicant testified that she was aware of her spouse’s suspension, and that her husband knew that he was not supposed to drive her vehicle, as far as she knew he took the car once without her permission, but he did not drive it on a regular basis.
The Applicant testified that at the moment her spouse is still living with her as she is his surety. Further, although she has the use of another vehicle to get around, the Applicant pointed out that the impoundment will cause financial hardship.
Evidence for the Registrar
The documents tendered by the Registrar and admitted into the record on consent of the Applicant were as 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 Ability Impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until January 16, 2014.
The Registrar called Constable Ben Dekker as a witness.
Constable Dekker related that the events that led to the impoundment. In the course of the investigation, Constable Dekker interviewed the Applicant to ascertain details of the suspended driver’s out of province charges.
According to the officer, the suspended driver informed him that he has been driving the vehicle every single day for the past five years.
The Applicant did not cross-examine the witness.
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 her husband has not been driving her vehicle as he works mostly out of province. The Applicant was adamant that she has never given permission for her husband to drive her car; he knows he is not allowed to driver her car, and to the best of her knowledge he has only taken it once before.
In her summary statement the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.
The Registrar’s Agent maintained that the car was not stolen. Although the Applicant appears to have made an effort to prevent her husband from driving, the Ministry decided to pursue the matter based on the evidence provided by the officer that the suspended driver has been driving the vehicle for the past five years to get to work in Windsor. According to the Registrar’s Agent the Applicant could have called the police when she noticed the car missing.
The onus is on the Applicant to establish his grounds of appeal as provided in section 50.2(3)(a) or (d) of the Act.
In regards to the grounds of the car having been stolen, the Applicant testified that her husband knew he was not to drive the vehicle, and further attested, that she kept the keys hidden from him, and in fact she went so far as to remove the plates from the vehicle, which is the reason the vehicle was stopped by Constable Dekker.
The Applicant appeared to be sincere and forthright in her testimony, and the Registrar’s Agent’s cross-examination did not lead to any doubts about the Applicant’s credibility. The Tribunal is satisfied that the Applicant was being truthful in her testimony that her husband had not driven the vehicle on regular basis as attested to by Constable Dekker. The fact that she did not want her spouse driving on this particular occasion is corroborated by the fact that she took the plates off the vehicle. The Tribunal finds it quite plausible that the Applicant’s spouse simply lied to the constable.
The Tribunal accepts the evidence proffered by the Applicant that she did not give her spouse permission to drive her vehicle. The Tribunal also accepts the Applicant’s argument that due to the existing spousal relationship, the Applicant felt unable to lay charges against her spouse. The laying of charges against the driver is not a pre-condition to the Tribunal finding that the car was stolen within the meaning of the Act.
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: August 14, 2013