8288 v. Registrar of Motor Vehicles, 2013 CanLII 58478

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-09-10

8288/MVIA

8288 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

-and-

Registrar of Motor Vehicles

Respondent

Geneviève Blais, Member

For the Applicant:

Self-represented

For the Respondent:

Victoria Sim, Agent

Heard by teleconference:

September 3, 2013

A hearing was held on September 3, 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”).

THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the Act. As a result, the Applicant’s motor vehicle will remain detained at the impound facility for 45 days.

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 Toyota Yaris (the “vehicle”)

Date of Appeal: August 14, 2013

The Applicant appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in section 50.2(3)(d) of the Act.

ISSUES

As set out in the Applicant’s Notice of Appeal, the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in section 50.2(3)(d) of the Act.

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 Applicant

A summary of the Applicant’s evidence follows.

The Applicant indicated to the Tribunal that she needs the vehicle to drive her two children to school, to provide for her daily needs and to seek employment. She is a single parent and has two children, ages 10 and 7 years. She is on a fixed social allowance and is attempting to secure employment as soon as possible.

She is currently living in a seasonal trailer park, located eight kilometres from the city with no access to public transportation. As the trailer park will close at the end of the month, she must relocate and she requires the vehicle to search for alternate living accommodation.

The Applicant described how the vehicle came to be in the possession of the suspended driver. Approximately three weeks before the date of the vehicle impoundment, she lent the vehicle to her former common-law partner (the “driver”). The driver is also the father of her children. He and his roommate required daily transportation to attend weekly court appearances and a daily treatment program. In exchange for borrowing the vehicle, the driver agreed to pay the monthly car payment and insurance on the vehicle. As the Applicant was aware he was a suspended driver, she had stipulated a condition that only his roommate could drive the vehicle. She learned of the impoundment of the vehicle from the arresting officer on the day of the incident.

In cross-examination, the Applicant stated the suspended driver has been unemployed and unstable for several years. However, as he recently began attending a daily drug treatment program, she was more confident he could be trusted and not drive the vehicle. Unfortunately he betrayed her trust. Since the vehicle impoundment, the Applicant stated she has relied on neighbours and friends for transportation, which she described as difficult, unreliable and inconvenient. She affirmed that this arrangement has allowed her to buy groceries and look after her children’s needs. No medical appointments have been affected by the loss of the vehicle. There are 911 services in her area.

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 Dangerous Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until August 8, 2015.

The Registrar called Constable Glass as a witness.

Constable Glass related the events that led to the impoundment of the vehicle. He stated the suspended driver was known to him from previous police investigations. On the day of the vehicle impoundment, he observed the suspended driver in the vehicle in a residential area. When Constable Glass attempted to initiate a traffic stop to question him, the suspended driver made an abrupt u-turn and in doing so, struck the Constable. After the incident, Constable Glass located the vehicle and arrested the driver, who stated he had no fixed address and admitted to driving the vehicle while under suspension. Constable Glass stated the suspended driver did not mention to him that the Applicant had lent him the vehicle on the condition the vehicle would only be driven by his roommate.

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.

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 section 50.2(3)(d).

The meaning of “stolen” is not defined in the Act.

The Shorter Oxford English Dictionary, 3^rded., 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.

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, 3^rded., 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

In closing, the Applicant stated she requires her vehicle to drive her children to school, to seek new accommodation and to seek employment. Her alternatives are very limited.

In closing, the Registrar’s Agent pointed out the vehicle was impounded correctly, and that exceptional hardship, as defined by the Regulation, has not been met.

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. In this case, the Applicant’s testimony established that she has access to transportation alternatives through friends and neighbours. The Tribunal recognizes that these alternatives are inconvenient to her. There was no evidence before the Tribunal that her children would miss school or that appointments had been or would be missed. The fact that the Applicant lent her vehicle to the suspended driver for use on a daily basis suggests that she herself did not require it daily. The Tribunal is bound to apply the legislation as it is written and the Tribunal cannot, in these particular circumstances, consider inconvenience to the Applicant. There has been no financial loss to the Applicant as she is on a fixed income.

The Tribunal finds that the Applicant has not met the onus under section 10(3)(a) of the Regulation, namely, “to demonstrate that no alternative to the impounded motor vehicle is available.”

Therefore, the appeal on the grounds of exceptional hardship has failed.

The Tribunal notes that although the Applicant did not cite the vehicle was stolen as a ground on her notice of appeal, she did state that she had lent the vehicle with the understanding that the vehicle would only be driven by the suspended driver’s roommate, who held a valid licence. The Tribunal has therefore considered whether or not the ground that the vehicle was stolen applies in this case.

The Applicant testified that she had lent the vehicle to the suspended driver three weeks prior to the date of the impoundment, with the understanding that the vehicle would only be driven by his roommate. The Tribunal notes, however, that the Applicant also testified that she knew the suspended driver had been unreliable and unstable for several years. The Applicant acknowledged she took a risk, trusting that the suspended driver would not drive the vehicle, and was deceived by his actions. His willingness to pay the monthly car payment and insurance were likely significant factors that influenced her decision to lend him the vehicle.

While the Tribunal is sympathetic to the Applicant’s current circumstances, the testimony provided to the Tribunal was insufficient for the Tribunal to make a determination that the vehicle was stolen in accordance with section 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 confirms the impoundment of the Applicant’s motor vehicle, and it will remain at the impound facility for 45 days.

LICENCE APPEAL TRIBUNAL

Geneviève Blais, Member

RELEASED: September 10, 2013