Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 8622/MVIA
CASE NAME: 8622 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: Mary Ann Spencer, Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: March 4, 2014
REASONS FOR DECISION
A hearing was held on March 4, 2014 at Toronto, Ontario, 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 “Act”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the Act. 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: 2005 Dodge RPC (the “vehicle”)
Date of Appeal: February 13, 2014
ISSUES
As set out in the Applicant’s Notice of Appeal (Exhibit 2), the owner appeals on the basis that the vehicle was stolen at the time it was detained as provided in section 50.2(3)(a) of the Act and that the loss of the vehicle will result in exceptional hardship, as provided in section 50.2(3)(d) of the Act.
Should the Tribunal order the Registrar to release the motor vehicle on the basis that it was stolen at the time it was impounded? Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?
FACTS
Evidence for the Applicant
The Applicant is a sole proprietor operating a business supplying biofuel to an industrial plant. The impounded vehicle is a pick-up truck which is normally used in the business to transport the fuel tank used to refuel vehicles at the company’s forest operation sites and to haul a trailer containing the company’s tools. The company employs four people, one of whom is the Applicant’s husband who is the suspended driver in this case.
The Applicant testified that the vehicle was impounded with the fuel tank on its flat bed. The company currently has two contracts. One of the contracts provides for refuelling of the company’s vehicles; the other, however, requires that the company provide its own fuel. The Applicant testified that to date she has been able to keep the company operating, with the exception of one week when the business was shut down due to her absence for a family event, because she was able to borrow a truck from an employee to move the company’s work trailer which follows the work crew from site to site. However, she stated that she needs the impounded vehicle in order to continue the company’s day to day operations. She testified that in the “worst case scenario”, she would have to consider renting a vehicle to replace the impounded truck but indicated that she “can’t really afford to”. On cross-examination, the Applicant stated that her contracts were not in jeopardy.
The Applicant owns an SUV for her personal use. In response to questioning from the Agent for the Registrar, the Applicant indicated that this vehicle could not be used to haul the company’s work trailer, noting the impounded vehicle was both raised and equipped with off road tires. Further, the SUV could not be used to directly transport the fuel tank. The Applicant also owns a standard tractor which is used to haul a trailer designed to carry wood chips. She stated that this tractor could theoretically be used to haul another trailer to transport the fuel tank and tools, but noted this would mean that the tractor would have to be detached from the wood chip trailer.
The Applicant noted that fuel is expensive and that it costs her approximately $1300 to fill the fuel tank which is currently in the impound facility and, given its weight, would require special loading equipment to move from the impounded vehicle. Asked if she had made any enquiries to obtain the fuel tank, she indicated that she had not and did not know if the impoundment facility had the required equipment. She further stated that if she were to be unsuccessful in this appeal, she would look into renting another vehicle although she noted that she might have some difficulty given the work her employees perform is dirty and she would have to make special arrangements to protect a rental vehicle.
The Applicant testified that her husband is the company’s mechanic. She was unaware of the fact that his licence was suspended until approximately two months ago and testified that she only learned of this fact after confronting him when he had refused to drive on errands a number of times, a behaviour she did not understand. She stated that she did not know the circumstances which led to him driving at the time the vehicle was impounded. Normal procedure is that all employees meet in the mornings at her office and then one of them takes the company truck and drives everyone to the work sites which are located approximately 1.5 hours drive away. The keys are kept in a key box at her office.
The Applicant stated that when the vehicle was impounded, the employee who normally drives had left the work site, leaving her husband to drive the impounded vehicle. She stated she could not provide details as to how this happened. Since the impoundment, the Applicant has informed all of her employees about the status of her husband’s driver’s licence to ensure he does not drive company vehicles.
Evidence for the Registrar
A summary of the Registrar’s evidence follows.
The documents tendered by the Registrar and admitted into the record on consent of the Applicant were as follows:
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;
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 4 below;
Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of driving while impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until March 18, 2014.
Constable Kimberly Johnston of the Ontario Provincial Police testified on behalf of the Registrar.
Constable Johnston testified that she was on regular patrol when she saw the impounded vehicle being driven without a rear licence plate light. When she pulled the vehicle over, the suspended driver did not have identification with him. After checking and learning that his driver’s licence was suspended, the vehicle was impounded. Constable Johnston stated that the suspended driver told her that he believed his licence suspension had ended in December, 2012, but he had not yet gone to the Ministry of Transportation to get his licence back. Constable Johnston also testified that she received no call from the Applicant after the vehicle was impounded.
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:
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.
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.
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.
O. Reg. 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), that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded and 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 it was detained in order to be impounded?
The meaning of “stolen” is not defined in the Act.
The Shorter Oxford English Dictionary, 3rd 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, c. C-46, provides guidance.
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, 3rd 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.
APPLICATION OF LAW TO FACTS
In this case, the Applicant did not specifically indicate on the Notice of Appeal on what grounds she was basing her appeal. In her written reasons, she stated that the vehicle was required to perform day to day maintenance and to operate forestry equipment. She further noted that the company does not condone vehicles being operated by an unauthorized operator and measures have been taken to deal with the matter. The Applicant did not testify that the vehicle was taken without her consent. Rather, she stated that her employees normally drive to work sites together in the morning and she did not know the details of how they got separated the evening that the suspended driver drove the impounded vehicle.
The Agent for the Registrar, in his closing submissions, submitted that the Applicant had appealed on the basis that the vehicle was stolen. Constable Johnston testified that the Applicant did not contact her after the vehicle was impounded.
While it is not necessary for charges to be laid for the Tribunal to make a finding that a vehicle was stolen, the Applicant did not present any testimony at this hearing to indicate that the vehicle was taken without her consent. She did, however, note that she had not called Constable Johnston because she believed there was nothing she could do given the vehicle had already been impounded. The Applicant did testify that although she had long been unaware of the status of the suspended driver’s licence and had questioned why he had refused to drive on many occasions, she became aware of the status before the impoundment. However, she did not inform other employees until after the impoundment. The Agent for the Registrar argued that the fact she did not tell her other employees of the situation and the fact that keys were readily available in the Applicant’s office suggest that the suspended driver might have had tacit consent to use the vehicle on a regular basis.
The Tribunal cannot draw this conclusion based on the evidence before it. However, based on the fact that the Applicant did not testify that the suspended driver had taken the vehicle without her consent, the Tribunal finds the evidence does not establish that the vehicle was stolen as set out in subsection 50.2(3)(a) of the Act.
With respect to the issue of exceptional hardship, section 10 of O. Reg. 631/98 is very specific. It provides the Tribunal with the criteria the Applicant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the Applicant has an alternative to the motor vehicle. Section 10(4) of the Regulation requires that in order to demonstrate there is no alternative to the impounded vehicle, an owner must demonstrate that every reasonable option has been considered that could eliminate or adequately mitigate any threat or loss to the person including using another vehicle or making arrangements to do without any vehicle during the impound period.
In this case, the impounded vehicle is specifically equipped to transport the company’s fuel tank and to haul tools to its forest work sites. The Applicant testified that she was able to borrow an employee’s vehicle to assist in hauling the work trailer immediately following the impoundment. The company was also shut down briefly while the Applicant attended a family event. It is only since her return that the need for the vehicle has become more pressing. However, in this regard, the Tribunal notes that the Applicant indicated her business is not in danger of losing its contracts.
The Applicant testified that while she owns a personal SUV, it is not suitable for the type of heavy duty off road use the impounded vehicle is put to. She also owns a tractor which she stated could be used to haul a trailer containing the fuel tank or the tools needed in her business. However, she indicated that this would entail detaching the tractor from the wood chip trailer which it normally hauls. She did note that she would have to look into rentals if she were unsuccessful in this appeal.
While the Tribunal acknowledges that the impounded vehicle has been equipped for a specialized use, the evidence indicates that there are alternatives available. The Applicant has already borrowed a vehicle to manage part of the impoundment period. Further, she did not demonstrate that she has considered all of her options with respect to alternate vehicles.
The evidence indicates that there is an alternative to the use of the impounded vehicle, and therefore, the Applicant has not established exceptional hardship as set out in subsection 50.2(3)(d) of the Act.
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
_________________________
Mary Ann Spencer, Member
Released: March 6, 2014