8465 v. Registrar of Motor Vehicles, 2013 CanLII 87777

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-12-30

FILE:

8465/MVIA

CASE NAME:

8465 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 17, 2013

REASONS FOR DECISION

A hearing was held on December 17, 2013, at Toronto, 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 90 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: 2003 HYUN SAN (the “vehicle”)

Date of Appeal: November 21, 2013

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

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 he was never served and that the papers received were incorrect. The Applicant further states that he takes care of his family and works nights.

During the hearing, the Applicant reiterated the comments in the Notice of Appeal, testifying that he did not receive the proper documentation about the impoundment.

According to the Applicant, he has no idea why his father took the car, and he did so without permission. The Applicant stated that he has set up an account with a taxi company for his father’s use since the previous impoundment which was also due his father driving the vehicle while suspended.

The Applicant is currently using his brother’s car to get to work as needed.

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 Blood/Alcohol Content in Ability Impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until December 31, 2026.

The Respondent’s Agent noted that the driver of the vehicle at the time of impoundment was in fact suspended, and that the Notice of Impoundment forwarded to the Applicant is correct.

The Registrar called no other evidence.

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.

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.”

APPLICATION OF LAW TO FACTS

In closing, the Applicant asserted that he appealed on the grounds of the incorrect paperwork and his conversation with the towing company clerk and the officer.

In his summary statement, the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar. He maintains that there is no doubt the driver was under suspension.

With regard to exceptional hardship, Registrar’s Agent notes that albeit there may be hardship involved, the law precludes an appeal on grounds of hardship as there has been a previous impoundment within the past two years.

The Registrar’s Agent points out that it hard to accept that the vehicle was stolen, as the Applicant left a set of keys in the house after being fully aware that his father had previously taken the car.

In response, the Applicant admitted that he did not consider the vehicle stolen.

At the outset, the Tribunal must emphasize that it has no jurisdiction to deal with the reasons for appeal put forth by the Applicant. Nonetheless the Tribunal will consider the 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.

In regards to the possibility that the car could have been stolen, by the Applicant’s own admission, although the car was taken without his knowledge, he does not consider the car to have been stolen. Specific permission may not have been given, however, the circumstances as described in the evidence, suggest that the Applicant has acquiesced to his father’s use of his vehicle Thus, the Tribunal finds that the criteria for appeal under Section 50.2(3) (b) of the Act was not met and that the vehicle was not stolen at the time of impoundment.

Given that the vehicle was previously impounded, legislation precludes the Tribunal from considering exceptional hardship as grounds for appeal.

As such, the Tribunal finds that the criteria of Section 10 (1) of the Ontario Regulation 631/98 are 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 90 days.

LICENCE APPEAL TRIBUNAL

Antoine Aouad, M.D., Member

Released: December 30, 2013