8458 v. Registrar of Motor Vehicles, 2013 CanLII 83565

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-12-13

FILE:

8458/MVIA

CASE NAME:

8458 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:

RUSSELL MCKNIGHT, Agent

Heard by teleconference:

December 4, 2013

REASONS FOR DECISION

A hearing was held on December 4, 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”).

As noted in the Tribunal’s Order dated December 5, 2013, the Tribunal ORDERED THE REGISTRAR TO RELEASE THE VEHICLE.

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: 2006 CHEV SSC

Date of Appeal: November 19, 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 October 20, 2013, of Fail to Stop For Police Officer under the Criminal Code of Canada, which resulted in the driver’s licence of the driver being suspended until May 15, 2014.

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 was out of the country when the vehicle was stolen.

Stolen vehicle

During the Respondent Registrar’s representative cross-examination the Applicant testified that the suspended driver is her boarder’s uncle, whom she does not know personally. According to the Applicant, while she was out of the country, she entrusted her vehicle to her friend to drive to Ottawa. The Applicant believes that once in Ottawa her friend went out for the evening and left the keys on the counter from where they were taken by the suspended driver.

The Applicant was a credible witness. She testified in a forthright and sincere manner, and she had plausible explanations and answers when questioned by the Respondent Registrar’s representative and the Tribunal.

The argument that a suspended driver has stolen the vehicle is one that is easy to assert. 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. The Tribunal must use a great deal of circumspection in considering this argument. 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. In this matter the evidence is clear that the Applicant did not know the person whose driver’s licence was suspended and who took the car. The other indicia, of course, is the laying of charges, the Tribunal is satisfied that the Applicant does not believe the police’s version that her boarder stole the car, and finds her explanation for not laying charges plausible.

Thus the Tribunal finds that the criteria for appeal under Section 50.2(3)(a) of the Act was met and finds that the vehicle was stolen at the time of impoundment.

Exceptional Hardship

No evidence was proffered with respect to Exceptional Hardship The Tribunal’s ruling is that there is no evidence to substantiate a finding that the criteria of section 50.2(3)(d) of the Act were met.

DECISION

After considering the evidence and the law, under the authority of section 50.2(5) of the Act, the Tribunal ordered the Respondent Registrar to release the vehicle.

LICENCE APPEAL TRIBUNAL

Antoine Aouad, M.D., Presiding Member

Released: December 13, 2013