8441 v. Registrar of Motor Vehicles, 2013 CanLII 83563

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-12-19

FILE:

8441/MVIA

CASE NAME:

8441 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:

SONIA DE SANTIS, Agent

Heard by teleconference:

December 3, 2013

REASONS FOR DECISION

A hearing was held on December 3, 2013, at Toronto, Ontario, by teleconference to consider the Applicant’s appeal under section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”).

Pursuant to section 50.2 (5,) the Tribunal CONFIRMS THE IMPOUNDMENT. 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: 2001 GMC SIE

Date of Appeal: November 13, 2013

There were no preliminary matters in dispute between the parties.

ISSUES

As set out in the Applicant’s request for hearing (Exhibit #1), the owner appeals on the basis that the motor vehicle was stolen at the time it was detained in order to be impounded, and that the loss of the vehicle will result in exceptional hardship, all as provided in sections 50.2(3) (a) and (d) of the Act.

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 Respondent Registrar to release the vehicle on the basis that the impoundment will result in exceptional hardship?

LAW

Section 55.1 of the Act provides that a motor vehicle may be detained and impounded, and section 50.2 provides the vehicle owner’s right of appeal to the Tribunal. The Tribunal on the appeal may, under subsection 50.2(5) of the Act, confirm the impoundment or order the Respondent Registrar to release the vehicle. Under 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.

The Applicant here appeals on the basis of sections 50.2(3)(a) and (d).

ISSUE 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?

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

The Shorter Oxford English Dictionary, 3^rd 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, Chap. 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.”

ISSUE Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?

The Shorter Oxford English Dictionary, 3^rd ed. 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.

FACTS AND ANALYSIS

The Respondent Registrar had filed the following documents, which the Tribunal admitted into the record:

1. Certified copy of the Notice to Registrar setting out the information that supported the 45-day impoundment;

2. Certified copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted on November 5, 2001 of Ability Impaired under the Criminal Code of Canada, which resulted in the driver’s licence of the driver being suspended For Life.

3. Certified copy of the Ministry of Transportation vehicle record indicating that the impounded motor vehicle was registered in the name of the Applicant as owner, as of the date of the impoundment; and

4. Certified copy of the Notice of Impoundment.

The Applicant testified at the hearing and provided evidence that was generally consistent with the reasons in the Notice of Appeal. This focused more on the fact that the Applicant’s former spouse took the vehicle without permission. The Applicant testified she cannot afford to cover the cost of the impoundment and is having difficulty getting to her doctor’s appointments.

Stolen vehicle

During the Respondent Registrar’s representative cross-examination the Applicant testified that she went to the suspended driver’s home in order to care for their pet and that while she was there, the suspended driver filled the vehicle with cedar and went off to sell it. The Applicant claims she made an effort to stop him by asking him where he was going. According to the Applicant the suspended driver just assumed the vehicle was a shared vehicle and that he could use it.

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. 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.

One of the indicia that a vehicle has been stolen, 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. By the Applicant’s own admission, not only was there a previous relationship between her and the suspended driver, but it appears also a current one, in that the Applicant went to his house to care for the pet.

The other is the laying of charges against the suspended driver. When the suspended driver took the vehicle presumably without the Applicant’s consent, she did not call the police, but rather remained at his house awaiting his return. Further, according to the Applicant the police would not lay charges, as they believed they were “boyfriend and girlfriend”.

Thus the Tribunal finds that the criteria for appeal under Section 50.2(3) (a) of the Act were not met.

Exceptional Hardship

The Tribunal now considers the exceptional hardship ground for of appeal. This ground of appeal must failed because the Applicant did not pass the first hurdle – that of proving that no alternative to the impounded vehicle was available. The detailed provisions in section 10 of Ont. Reg. 631/98 are very strict and they narrowly limit what the Tribunal may consider as being exceptional hardship.

The evidence supports the Respondent Registrar’s submission that the Applicant had not shown that she had no alternative to the impounded vehicle. This is a legislated precondition that must be met before the Tribunal is permitted to consider whether the exceptional hardship has caused a threat to the Applicant’s health or some “immediate, significant and lasting” loss of a financial, employment or education nature. The Applicant stated that she paid a friend to take to Court, but she could not afford taxis; her supplies are delivered. This option may not convenient but that is not enough to trigger the exceptional hardship grounds of appeal in this legislation.

For the sake of completeness the Tribunal does further find that there is no evidence that the Applicant’s losses are significant and lasting as the evidence indicates the Applicant is receiving Ontario Disability Benefits thus has not missed work.

There is no evidence to suggest that there is any threat to health and safety as the doctor’s appointments missed by the Applicant may be rescheduled.

Thus the Tribunal finds that the criteria for appeal under Section 50.2(3) (d) of the Act was not met.

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

Antoine Aouad, M.D., Presiding Member

Released: December 19, 2013