8419 v. Registrar of Motor Vehicles, 2013 CanLII 78359

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2013-11-25

FILE: 8419/MVIA

CASE NAME: 8419 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: November 20, 2013

REASONS FOR DECISION

A hearing was held on November 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 November 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: 2003 FORD EPR (the “vehicle”)

Date of Appeal: October 31, 2013

As a preliminary matter, the Applicant was given an option to adjourn as she did not receive the disclosure package from the Ministry. She declined that option and the hearing proceeded.

All documents were entered into evidence as exhibits with the consent of both parties.

During the hearing the Registrar’s Agent suggested that the Registrar would be prepared to release the vehicle if the Applicant were to lay charges against her brother.

In reply to the question posed by the Tribunal as to whether she was prepared to lay charges of theft against her brother, the Applicant replied in the affirmative. The Applicant was given until 4 PM, to forward proof, both to the Tribunal and Registrar that a charge of theft had been laid against her brother. The Tribunal was subsequently informed by the Applicant that upon attending at the police station, to press charges, she found that the officer in charge of this matter would not be available until Monday.

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. The Applicant further states that the incident is causing exceptional financial and emotional hardship in that the vehicle is needed to for work.

During the hearing, the Applicant’s reiterated the comments in the Notice of Appeal, testifying that she was aware of her sibling’s record; he was not allowed to drive her vehicle; and she had no idea that he taken it. In cross-examination, the witness confirmed that she would have definitely charged her brother with theft had she known that it that was option.

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:

1. 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;

2. 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;

3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;

4. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Driving While Disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until April 17, 2015..

The Registrar did not call any witnesses.

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:

1. 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.

2. 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.

3. 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

The Applicant made no closing remarks.

The Registrar’s Agent reiterated her remarks that should the Applicant lay charges of theft against the disqualified driver within 24 hours, the vehicle would be released. Otherwise, the Registrar’s Agent maintained that it is the position of the Registrar that the vehicle was not stolen at the time of impoundment.

The onus is on the Applicant to establish his grounds of appeal as provided in section 50.2(3)) of the Act.

The Tribunal concurs with the Registrar’s Agent that evidence shows that the person having care and control of the vehicle at the time of impoundment did not in fact have a valid driver’s licence.

The Tribunal will dispense with due diligence as a possible ground for appeal, as the Applicant testified that she was aware of the suspension.

In regards to the possibility that the car could have been stolen, the evidence indicates that the suspended driver is the Applicant’s brother who was spending the night at the Applicant’s house.

The argument that a suspended driver has stolen the vehicle is one that is easy to assert. The Tribunal must use a great deal of circumspection in considering this argument. One of the indicia that a vehicle has been stolen, of course, is the laying of charges. Another is the lack of a relationship between the owner and the driver to support an inference that the owner has lent the vehicle to the driver. It does not flow from these indicia that one family member cannot steal a vehicle from another. To complicate the analysis, in a close family relationship, the laying of charges may result in such bad feelings that the owner does not want to contemplate such action. The Tribunal must consider the totality of the facts to determine if, in fact, the vehicle was stolen or if the argument is being used opportunistically. There may be instances when specific permission for use was not given but the overall facts support a conclusion that use of the vehicle by the suspended driver is acquiesced in by the owner.

The Applicant appeared to be sincere and forthright in her testimony that her brother had taken the vehicle without her knowledge or consent, and the Registrar’s Agent’s cross-examination did not lead to any doubts about the Applicant’s credibility. The Tribunal accepts the Applicant’s willingness to lay charges of theft against her brother and expects that she will do so. Thus the Tribunal finds that the vehicle was stolen at the time of impoundment.

The Tribunal finds that the factor set out in criteria of section 50.2(3)(a) of the Act has been met and the appeal succeeds on that ground. As such, the Tribunal does not need to consider the exceptional hardship 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: November 25, 2013