Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8258/MVIA
CASE NAME: 8258 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: SONIS DE SANTIS, Agent
Heard by teleconference: August 20, 2013
REASONS FOR DECISION
A hearing was held on August 20, 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 21, 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: 2011 KIA FLX (the “vehicle”)
Date of Appeal: JULY 31, 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 taken without her knowledge or consent by her boarder. The Applicant further states that the incident has caused loss of sleep due to stress, and that she has not been able to get to work. According to the Applicant the loss of income is causing exceptional hardship.
During the hearing, the Applicant reiterated her comments in the Notice of Appeal, testifying that she left her vehicle with her 21 year old son; and emphasizing that the people who took the car had no right to do so.
According to the Applicant she has not been able to go to work, not take her daughter to places where she needs to go. The Applicant affirmed that her live has been turned upside down, and points out that she cannot understand why she is being punished for someone else’s wrongdoing.
In cross-examination, the Applicant confirmed:
she left home around 9 PM and returned in the morning to find that the vehicle had been impounded;
the only people who had permission to use the car was her son and his girlfriend;
the suspended driver, who is a friend of her boarder, took the keys without permission;
although the suspended driver is an acquaintance of her son, he did not give permission for them to take the car;
she has no cell phone and could not be reached until the morning;
she intended to charge the people involved, but feared retaliation;
she was advised by the Constable to appeal before laying charges;
the boarder had been living with the Applicant for the past four months as he had no place to live;
he often had friends visiting;
she works 32 hours every two weeks, mostly at night.
she almost lost her job because she was “not physically not mentally able to work”;
she took “emergency days” for which she is not paid;
she has lost 4 day’s pay;
she was told that unless she went back to work she would be penalized;
she was able to use a friend’s car;
she has not used either taxis, nor public transit;
The Applicant affirmed that she does “hopes” the group of people who took the car, did not intend to deprive her of its use; she believes they just wanted to take it for a joy ride, or to go a party.
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 Excess Of .08 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until June 21, 2015.
The Registrar called Constable David Aylett as a witness.
Constable Aylett related that the events that led to the impoundment. According to the officer, the suspended driver informed him that he was suspended and that he borrowed the car from a friend.
The constable testified that he was unable to contact the owner.
According to Constable Aylett he is aware that there were other people at the scene, but he made no mention of who they were. He did remember that the suspended driver said they were on their way to pick up the Applicant’s daughter from a movie.
The Applicant did not cross-examine the witness but asserted that no one should have been driving her car without her permission, and that she was not aware of the suspension.
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 she would like to have the vehicle back so that she can get over the nightmare and move on with her life.
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 and argued that the Applicant was given an opportunity to think about laying charges, but has not done so. Further the Registrar’s Agent contends that according to Constable Aylett’s testimony, the suspended driver said he was on his way to pick up the Applicant’s daughter from the movies. Thus, the Registrar’s Agent maintains that the vehicle was not stolen; it was taken for the purpose it was intended, which was for the benefit of the Applicant’s children.
The Registrar’s Agent pointed out that the Constable’s evidence was not challenged by the Applicant substantiating her premise that the Applicant’s son allowed his friends to drive the vehicle to go and pick up his sister. The Registrar’s Agent further speculates that the suspended driver was in fact assisting the Applicant and had no intention of depriving her of the use of the vehicle.
With regards to exceptional hardship, Registrar’s Agent, notes that there are alternate modes of transportation available to the Applicant as she is able to use her friend’s car.
According to the Registrar’s Agent there are no health or safety issues, as there is 911 service available in the area.
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 she left the car for her family’s use in the event of an emergency, she is adamant that no one else had permission to drive the vehicle.
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 she did not give permission to any other person to drive her car. The Tribunal accepts that if, in fact, as the Registrar’s Agent assumes, other arrangements were made, such arrangements were made after the Applicant left home and were totally beyond her control.
The Tribunal accepts the evidence proffered by the Applicant that she did not give the suspended driver permission to drive her vehicle. The Tribunal further notes, that 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 27, 2013