8761 v. Registrar of Motor Vehicles, 2014 CanLII 23592

Licence Appeal Tribunal

Date: 2014-05-06 File: 8761/MVI Case Name: 8761 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

8761, Appellant -and- Registrar of Motor Vehicles, Respondent

DECISION AND ORDER

Adjudicator: Simon Dann, Member

Appearances: For the Applicant: Self-Represented For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: May 2, 2014

REASONS FOR DECISION

A hearing was held on May 2, 2014, 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").

THE TRIBUNAL RULED TO SET ASIDE THE IMPOUNDMENT imposed by the Registrar of Motor Vehicles (the "Registrar") pursuant to section 55.1(3) of the HTA.

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 Appellant Motor Vehicle: 2004 Pont, GPG (the vehicle") Date of Appeal: April 15, 2014

ISSUES

Based on the Notice of Appeal and the appellant's testimony at the hearing, the issues in this appeal are whether the vehicle was stolen as provided in section 50.2(3)(a) of the Act, or whether the loss of the vehicle will result in exceptional hardship as provided in section 50.2(3)(d) of the Act.

EVIDENCE FOR THE APPLICANT

A summary of the evidence of the Appellant is as follows.

The Appellant describes himself as homeless, unemployed and with marginal resources. He is currently in a shelter where he is provided with meals and a place to sleep. He lives on Canada Pension Plan ("CPP") income of $672 per month. He testified he has also spent nights on the street and suffers from a medical condition affecting his feet and ability to any walk distance.

The driver of the Appellant's vehicle was his son "M" who had his driver's licence suspended for an original Criminal Code of Canada conviction and there were extensions of that suspension when M was found driving while under suspension.

The Appellant said he knew his son did not have a valid licence and never gave him permission to use the vehicle. The Appellant said he always told him to never take the vehicle. As the two lived together at the time, the Appellant said he always hid his car keys under his bed's mattress or his pillow. He has no idea how M managed to get the keys.

The Appellant said that when he went to bed around 8:00 PM, he could see his vehicle in the driveway. He did not know the vehicle was gone until the next morning when M's girlfriend called to say M had been arrested and the vehicle had been impounded.

The Appellant said he is trying to find work for additional income but really cannot get out much now because he needs his vehicle to get around and drop off resumes. His last employment was 6 years ago and while he has been to several interviews and is registered with Manpower, he has not had any job offers.

In cross-examination, the Tribunal heard the Appellant has to some degree been able to get help from his sister and occasionally from his other son "A", who works an afternoon shift and is said to sleep in during the earlier part of the day. The Appellant also said he can get bus tickets and the occasional ride from the shelter staff where he is currently staying. He acknowledged he has not used the bus and essentially does not want to.

He claimed to have had about 15 medical appointments scheduled during the impoundment period but has only been able to get to one with his sister's help. He has also been able to get to several medical tests in this time. He has 3 other appointments scheduled before the end of the 45 day impound period but is not sure he will be able to get to them. He did not claim to have any health threat making the appointments urgent. His son A has helped him drop off resumes for job applications.

The Appellant said his bank is a distance away and he tries to walk there but the pain from his feet is such that he turns around and returns to the home. He is not concerned with grocery shopping as his meals are provided by the shelter.

The Appellant confirmed that he shared the monthly cost of his last apartment with his son M. His cost was $375 a month and that left him with approximately $297 a month for all other requirements. He also confirmed he has had the medical condition with his feet for about a year and a half and while he has pills, he may not be able to afford to keep buying them.

When the Appellant was asked about the discrepancy in his testimony about the time he last saw his vehicle in the driveway, when he went to bed (about 8:00 PM), on the night of the vehicle impoundment and the actual time of the impoundment (6:43 PM), the Appellant said he could have been confused but knew he saw the vehicle before going to bed. He also did not know how M got the keys because he slept in a big bed, off to one side, and maybe his son snuck the keys out without disturbing him.

The Appellant was asked whether he believed M intended to take and keep the vehicle or return it. The Appellant replied it was his belief that his son only took it for whatever reason he had and that he fully intended to return it but, M did not have permission to take it. The Appellant did not file charges because his son was then in jail and it was his view that there was nothing he could do because the vehicle had been impounded.

EVIDENCE FOR THE REGISTRAR

The Registrar's Agent, before reviewing the documents to be tendered, questioned the Appellant about whether he had received the document package sent to him since it appeared the document package had not been picked up from the courier company.

The Appellant replied he no longer lived at the last address on record and had only learned about the documents when he was called by the Registrar's Agent. He had tried to collect the package at the courier but was not successful there.

The Appellant did not dispute the documents to be tendered and the Tribunal then asked the Registrar's Agent to review each document in the event there were any questions from the Appellant.

The documents tendered by the Registrar and admitted into the record on consent 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;
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 his driver's license suspended on April 12, 2013, due to a conviction on a charge of dangerous driving under the Criminal Code of Canada pursuant to which the license of the driver was suspended until April 12, 2016.

The Registrar called no other evidence.

In closing summary, the Appellant reviewed the evidence he had already given.

The Registrar's Agent asked the Tribunal to confirm the impoundment, saying the Appellant's appeal failed because the Appellant:

• had alternative transportation options from his sister and son A;
• had walked to places despite the discomfort with his feet;
• had offers for bus tickets and rides from the shelter he was currently staying at;
• his medical condition was pre-existing and he had been able to get to a doctor's appointment and several tests;
• had been provided with transportation to drop off a number of resumes for employment applications;
• lived in a family situation when the impounded vehicle was taken and the testimony that the car keys were hidden should be taken with "a grain of salt" because the Appellant did not file any charge with the police.

The Registrar's Agent submitted that the major discrepancy in the Appellant's testimony was that he saw his vehicle parked in the driveway at 8:00 PM on the night in question when in fact, the vehicle was impounded at 6:43 PM.

The Appellant was also informed that subject to the outcome of the appeal, he could take action to seek compensation for his costs and losses from his son.

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.

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

On the exceptional hardship issue, 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. The section also 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.

On the second issue, the ground of stolen, it is noted that "stolen" is not defined in the Act. For the purposes of the Act, "stolen" has been interpreted to mean that the vehicle was taken, temporarily or permanently, without the owner's consent.

APPLICATION OF LAW TO FACTS

The Appellant has, on a balance of probabilities, failed to prove his case for exceptional hardship as the legislation makes plain that it is difficult for an Appellant to prove that he has suffered "exceptional hardship". However on the point of stolen or taken without permission, the Tribunal finds that, on a balance of probabilities, the Appellant has proven his case.

Regarding exceptional hardship, an appellant must first establish that no alternative exists for the impounded vehicle. The Appellant has failed to do this as he acknowledged he has been able to obtain rides with his sister, his other son A, and that the shelter where he is currently staying could provide bus tickets and rides. The Appellant confirmed he has been able to get to a medical appointment, to medical tests and to drop off resumes. Therefore the appeal on the ground of exceptional hardship is found to fail.

However, on the ground of 'stolen', the Tribunal notes Marshall v. Registrar of Motor Vehicles (LAT Decision 0717) ("Marshall"), where the vehicle owner, being Marshall, had given the car keys to BG so that BG could take Marshall's daughter to medical appointments. On the evening of the impoundment, BG went to bed and left the keys on the kitchen table. JB, who was living in the same house as Marshall, removed the keys and took the vehicle without permission.

At the Tribunal hearing, JB testified he believed he could do his errands and return the vehicle without anyone noticing. He was stopped by police and told them he had borrowed the vehicle. After the vehicle was impounded, Marshall called the police to lay a charge of theft against JB. The police did not charge JB with theft under the Criminal Code. Instead, the police charged him with Offences Resembling Theft, also known as Take Auto Without Permission, under the Criminal Code. No charge of theft was laid.

The Tribunal found that JB had taken the vehicle without permission. However, the Tribunal found there was no evidence that JB had the intent of permanently depriving the owner of her vehicle. Therefore the vehicle had not been stolen and Marshall's appeal was dismissed.

Marshall applied for judicial review of the Tribunal decision. The Divisional Court held in Marshall v. Ontario (Registrar of Motor Vehicles) [2002] O.J. No. 745 that,

"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."

The question for the Tribunal is whether the suspended driver took the owner's vehicle without consent. Consent may be explicit, or it may be implied from the circumstances. The use, or deprivation, of the vehicle may be permanent or temporary.

It is clear from the Appellant's testimony that the vehicle was taken without his consent and whether it was taken temporarily or permanently, the owner was deprived of it. Therefore, and on a balance of probabilities, the Tribunal finds the Appellant's vehicle, "in this context", to have been "stolen".

DECISION

After 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 the vehicle.

LICENCE APPEAL TRIBUNAL

Simon Dann, Presiding Member

Released: May 6, 2014