8660 v. Registrar of Motor Vehicles, 2013 CanLII 91556

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-03-26

FILE:

8660/MVIA

CASE NAME:

8660 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:

D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Applicant:

Self-represented

For the Respondent:

Sanjay Kapur, Paralegal

Heard by teleconference:

March 19, 2014

REASONS FOR DECISION

1A hearing was held on March 19, 2014 by teleconference to consider the Applicant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”).

2Pursuant 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

3A 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: 2005 Mazd Tri. (the “vehicle”)

Date of Appeal: February 28, 2014

ISSUES

4Should the Tribunal order the Registrar to release the motor vehicle on the grounds set out in s. 50.2 of the Act.

FACTS

Evidence for the Registrar

5The documents tendered by the Registrar and admitted into the record on consent of the Applicant were as follows:

1. Notice to Registrar dated February 15, 2014;

2. Driving Record of the suspended driver indicating that the driver has a lifetime licence suspension pursuant to the Criminal Code;

3. Vehicle record of the vehicle as of March 11, 2014;

4. Notice of Impoundment.

5. Vehicle record of a second vehicle owned by the Applicant as of March 11, 2014.

6. Notes of Officer who impounded the vehicle.

Evidence for the Applicant

6The Applicant is a single mother of two very young children and a full time student. Her sole source of funds is her O.S.A.P. loans. The driver of the vehicle at the time of the impoundment is the father of her children. He does not live with the Applicant and her children but he is a frequent visitor. The Applicant is well aware of the driver’s driving record and the fact that he has had his licensing privileges suspended for life. She has informed him in clear terms over the course of their relationship that he is not permitted to use her vehicle. She stated that she normally leaves her keys on the living room bookshelf but cannot recall specifically if she left them there on the night in question. She had no reason to be concerned that the driver would take the keys as he does not live with her and, in the past, he had not asked her for her car or taken it.

7On the evening of February 15, 2014, the Applicant was at home in her kitchen feeding her children and preparing supper. The driver was in the living room. A friend of the driver called in to see him. The Applicant testified that she heard a vehicle pull up and a car door close immediately before the friend knocked on the door but she did not actually see a car. One of the Applicant’s children had an eye infection and she had just run out of eye drops. She asked the driver to go to the pharmacy and get more drops. He left with his friend and she assumed that they had taken the friend’s car. A short while later she received a call from the police to say that the Applicant had been caught driving her car with a suspended licence. She was advised that her car would be impounded. There was some discussion over several telephone conversations about the length of the impoundment period, whether 45 days or six months but eventually she found that it was 45 days. She also had a discussion with the driver and both the driver and she advised the officer that the vehicle was being driven without permission.

8The Applicant told the Tribunal that she had just bought the vehicle about a week before the impoundment. She had been driving an older 2003 vehicle but it had maintenance problems. Around Christmas the older vehicle had been misfiring and a mechanic told her that it would cost approximately of $700.00 just to fix the misfire. There were other problems with the vehicle at the time and between Christmas and February the 2003 car had deteriorated. She determined that she would not put money into the older car but would purchase a newer one. Following the impoundment, she has been forced to use the older vehicle. It has failed to start; it has stalled on numerous occasions; and the heater does not work. At anything beyond moderate speeds it shakes and she is concerned about its safety. As a result of the loss of the vehicle and her use of the older vehicle she has missed three or four days of school and has been late for a number of classes. She has also been late to pick up her children from daycare. This has caused her extra expenses from a greatly limited income. She told the Tribunal that she currently has $15.00 left in her bank account.

9There is bus service in the northern city where the Applicant lives, but in her area busses come once an hour at times and once every two hours thereafter. The stop is 15 minutes’ walk from her apartment and the children’s daycare is 15 minutes from the stop at the other end of the line. She is concerned that her one and two year-old children will be exposed to long walks and long wait times in very cold temperatures. She has missed days off school because she would not expose her children to such conditions. As a result, the Applicant’s marks have suffered. She had had a 4.0 GPA but it has now slipped. Her course has mandatory attendance so she has lost marks as a result of non-attendance. She has contacted her teachers and studied on-line lecture notes to make up for missed classes but nothing can be done about missed time.

LAW

10Section 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.

11Subsection 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.

Regulation 631/98 provides that the prescribed period, referred to above, is two years.

12The 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.

13The evidence given during the hearing triggers two of the grounds set out above, sections 50.2(3) (a) and (d). The Applicant admitted at the outset that she was aware that the driver’s driving privileges had been suspended and that he was driving the vehicle at the time he was stopped by police so that subsections (b) and (c) are inapplicable.

Issue Should the Tribunal order the Registrar to release the motor vehicle on the basis that:

1. the vehicle was stolen at the time of the impoundment, or

2. the impoundment will result in exceptional hardship?

13The meaning of “stolen” is not defined in the 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.

14The 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.

15The 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.

16The 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.

17Section 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 to 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.

18Second, the section provides that the Tribunal may not, except in certain circumstances, consider the following 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.

19These 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.

20All elements of the grounds of appeal must be proven on the balance of probabilities by the owner of the vehicle.

APPLICATION OF LAW TO FACTS

21The evidence discloses that the vehicle was stolen at the time it was stopped. The Tribunal needs to look very closely at the facts when someone alleges that a vehicle has been stolen by a close friend or family member but there is no evidence of charges being laid. In the current case, the driver did not live with the Applicant. In the view of the Tribunal, this fact distinguishes this case from those cases in which an owner leaves keys readily accessible to a suspended family member. In the latter situation, there is a strong sense that a concerned owner would take steps to ensure that the keys were not used by the suspended driver. By making them easily accessible, the implication is that the owner acquiesced in the use of the vehicle by the suspended driver. The implication may be overcome by further evidence. In the current case, there is no implication of acquiescence. It is hard to imply that the Applicant was acquiescing in the use of the vehicle by the suspended driver any more that there is an implication that she acquiesced in him taking money from her purse. Accordingly, the Tribunal finds that the driver took the vehicle without permission.

22Nor can the driver assert any “colour of right” to take the vehicle. The Applicant testified that she had clearly informed him that he was not permitted to use the vehicle. She testified that she told the officer this fact when talking to him at the scene. She stated that the driver confirmed this to the officer. Mr. Kapur points to the officer’s notes and points out that the conversation is not mentioned in the notes. The notes are hearsay. While this Tribunal may consider hearsay evidence, it must assign weight. Against the officer’s notes, the Tribunal has the first hand evidence of the Applicant about what she told the officer. It accepts the Applicant’s evidence over the omissions from the notes. The Applicant was forthright in her evidence. When she was uncertain about the actual facts, she was honest as the basis of her uncertainty. For instance, she told the Tribunal where she usually put her keys but also advised that she was not sure what she did on the actual night. Equally, she testified that she thought the suspended driver’s friend had a car but acknowledged that she did not actually see it.

23The Tribunal has no difficulty finding that the impact of any loss arising from the impoundment of the vehicle will be on the Applicant and her children who are persons ordinarily transported by the vehicle and who are not the suspended driver. Given the Applicant’s current financial circumstances, the fact is that there will be an immediate, significant and lasting impact on the Applicant. While the Tribunal acknowledges that the Applicant has the right to sue the suspended driver to recover the costs of the impoundment, that right, should she exercise it, will not bear fruit for many months, or possibly years and any victory in court may be unenforceable. Her financial need is immediate.

24The Applicant lives in a large urban centre and has the benefit of both municipal bus services and 911 emergency services. She also has a second vehicle which has served, however poorly, to get her around. There are alternative means of transport are available to her. The Tribunal recognizes that the time required to utilize public transit or deal with the unreliability of the second vehicle may create awkwardness and inconvenience for her, but these factors are insufficient to elevate the situation to one of exceptional hardship as contemplated in the statutory scheme.

DECISION

25After 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, and orders the Registrar to release it.

LICENCE APPEAL TRIBUNAL

D. Gregory Flude, Vice-Chair.