Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2013-09-25
FILE:
8321/MVIA
CASE NAME:
8321 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
7005423 Canada Incorporated o/a Wise Choice Roofing and Renovations
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Applicant:
Russell Preddie, Paralegal
For the Respondent:
Russell McKnight, Agent
Heard in Toronto:
September 19, 2013
REASONS FOR DECISION
A hearing was held on September 19, 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”). At the conclusion of the hearing, the Tribunal gave oral reasons, ordering the release of the vehicle from the impound facility, with written reasons to follow. These are those written reasons.
Pursuant to section 50.2(5), the Tribunal SETS ASIDE THE IMPOUNDMENT. As a result, the Applicant’s motor vehicle will be released from the impound facility.
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 Ford CTV (the “vehicle”)
Date of Appeal: September 5, 2013
ISSUES
As set out in the Applicant’s Notice of Appeal (Exhibit #1), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship; that the vehicle was stolen on the date it was stopped and that the Applicant exercised due diligence before permitting the suspended driver to take the vehicle, all as provided in section 50.2(3) of the Act. At the outset of the hearing, the Applicant advised the Tribunal that the suspended driver had never been given permission to drive the vehicle. In fact, he had been advised that he was not allowed to drive any of the Applicant’s vehicles at any time. Accordingly, the defence of due diligence was not applicable and was not pursued at the hearing.
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 fail to stop for police officer under the Criminal Code of Canada pursuant to which the driver’s licence of the driver is suspended for life;
Copy of the Ministry of Transportation records indicating that the Applicant owns other plated motor vehicles.
Evidence for the Applicant
Evidence on behalf of the Applicant was given by its owner and manager, Laura Tooke. The Applicant is a roofing and renovation contractor operating in and around Cambridge, Ontario. Roofing makes up the bulk of its business. It has four employees who attend to roofing jobs in two vehicles used for that purpose. The suspended driver was employed by the Applicant. At the outset of the suspended driver’s employment, Laura Tooke determined that the suspended driver did not have a driver’s licence and was unable to ever get a licence. She advised him that he was not allowed to drive company vehicles at any time or under any circumstances. She advised him that if he drove company vehicles contrary to this direction there might be dire consequences for the Applicant and for her personally resulting from any accidents or incidents.
The normal practice for the Applicant’s employees at the end of the work day is that they return the company’s vehicles to its premises and put the keys through the mailbox. The mailbox is inside the door and can be accessed through the slot. Each morning, the employees attend at the company premises and are assigned work. The driver of each vehicle is then given a key and takes charge of the vehicle for the day.
Occasionally, but apparently not on this occasion, a driver may take a vehicle home if he lives close to the worksite. Ms. Tooke believes that the usual practice was followed on the evening of August 19, 2013 and that the keys to the vehicle were put into the mailbox.
In the early morning hours of August 20, 2013, Ms. Tooke’s husband answered a phone call from the police advising them that a suspended driver had been caught driving one of their vehicles and that the vehicle was being impounded. Ms. Tooke believes this call came in around 2:30 a.m. The next morning she asked her other employees how the suspended driver could possibly have gotten hold of the keys. These employees included the driver assigned the vehicle the day before. None of the employees knew how the suspended driver got the keys.
The vehicle is a specially equipped truck. In addition to shelving and ladder racks, it has a generator and compressors for working air tools. It is a vital and integral part of each roofing job. Without it, the Applicant cannot fulfill its contractual obligations to various customers and stands to lose about 80% of its income as well as its reputation. The roofing employees, excluding the suspended driver who found work elsewhere since this incident, have been employed with another roofer in the interim until the truck is released. Without income, the salesperson, part-time secretary and Ms. Tooke herself will lose their livelihoods. Because of on-going expenses, the company may not survive. Ms. Tooke advised the Tribunal that the Applicant had $0.62 in its bank account effective the morning of the hearing. Ms. Tooke did not look for another vehicle in the belief that such a vehicle would be prohibitively expensive.
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).
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.
APPLICATION OF LAW TO FACTS
The Tribunal finds that the vehicle was stolen at the time of the impoundment, so it will not consider the defence of exceptional hardship. There are only two plausible scenarios to explain how the vehicle came to be in the control of the suspended driver in the early morning hours of August 20, 2013. Either he was given the keys by the authorized driver at the end of the work day or he managed to manoeuvre them out of the mailbox. Ms. Tooke questioned her staff, including the authorized driver, and no-one was able to explain how the suspended driver was able to get the keys. The Tribunal accepts that this evidence is somewhat tenuous, especially in circumstances where the authorized driver has an incentive to be less than truthful, but there is other evidence that lends credibility to the Applicant’s position. The suspended driver has a history of exercising poor judgment and impulsive behaviour as indicated by his driving record. In addition to having a number of impaired driving convictions, themselves an indicator of poor judgment, he also failed to stop for police. He had his driver’s licence suspended for life both for the fail to stop for police and for his impaired driving activities. Looking at the evidence as a whole, the Tribunal is satisfied that he obtained the keys by surreptitious means and that he stole the vehicle.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal sets aside the impoundment of the Applicant’s motor vehicle.
LICENCE APPEAL TRIBUNAL
D. Gregory Flude, Vice-Chair
Released: September 25, 2013