8808 v. Registrar of Motor Vehicles, 2014 CanLII 30047

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-05-27

FILE:

8808/MVIA

CASE NAME:

8808 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.

Appellant

Appellant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

May 22, 2014

REASONS FOR DECISION

A hearing was held on May 22, 2014 by teleconference to consider the Appellant’s appeal pursuant to 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 SETS ASIDE THE IMPOUNDMENT. As a result the Appellant’s motor vehicle will be returned to the Appellant.

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: 2006 Mazda M31. (the “vehicle”)

Date of Appeal: May 2, 2014

ISSUES

As set out in the Appellant’s request for hearing (Exhibit #1), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in sections 50.2(3)(d) of the Act. He also alleged in his grounds of appeal that when the vehicle was impounded it was being driven by his son without his permission so the Tribunal considered section 50.2(3)(a) of the Act as a ground of appeal.

Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?

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?

FACTS

Evidence for the Registrar

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

1. Notice to Registrar 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 whose licence to drive was under suspension as a result of a conviction under the Criminal Code of Canada;

2. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of driving while his ability was impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until December 5, 2013;

3. Vehicle record for the impounded vehicle;

4. Notice of Impoundment sent to the Appellant;

5. Notice to Registrar re: an occurrence on 2011/02/14;

6. Plate history of the vehicle involved in occurrence in 5. above;

7. Notice to Registrar re: an occurrence on February 14, 2013

8. Appellant’s driver licence history;

9. Copy of the Ministry of Transportation records indicating that the Appellant co-owns a plated motor vehicle;

10. Copy of the Ministry of Transportation records indicating that the Appellant’s spouse owns a vehicle.

Evidence for the Appellant

The Appellant lives in a small village of approximately 200 people in southern Ontario. His nearest shopping and services, other than banking, is about a 20 minute drive away. He lives alone. His wife lives in a major city many miles away. When he attends the city for medical appointments he stays with his wife. He has had the need to attend the city recently to consult with two orthopedic surgeons: one looking into carrying out a hip replacement operation and the second looking into doing back surgery. He walks with a cane and cannot walk far. He has a disabled sticker for his car.

While staying with his wife on his visit to the surgeons, his son took his car without his permission. Unfortunately, unknown to the Appellant, his son’s driver’s licence was under suspension for driving with more than 80 mgs of blood alcohol. While the reason the Appellant’s son took the car are sympathetic, they can play no part in the Tribunal’s deliberations. What is of importance is the manner in which the Appellant’s son got hold of the Appellant’s keys. It appears that a nephew of the Appellant was suffering from drug addiction and alcoholism. Two weeks or so before the impoundment the nephew had attempted suicide and the Appellant’s son had called an ambulance. The nephew had spent time undergoing psychiatric treatment but, on his release on the day in question, he had sent texts to his cousin, the Appellant’s son, stating that he was going to commit suicide. The Appellant was out visiting a friend at the time. The Appellant’s son commenced a search for the keys to the Appellant’s car and located them in the Appellant’s coat pocket. He then set off on a quest to find and save his stricken cousin.

The Appellant’s visit to his doctors has resulted in a decision to replace one hip before looking into back surgery. As a result, the Appellant has had to undertake a program of muscle strengthening in preparation for the operation in July. The nearest gym is in the slightly larger centre about a 20 minute drive away. There is no bus service between his home and the larger centre so he has been unable to prepare for his operation. With respect to getting groceries, he has relied on the goodwill of neighbours who are around on the weekend to bring him groceries. He has also relied on the goodwill of neighbours to take him a somewhat greater distance to board a Greyhound bus for medical appointments both for himself and for his 94 year old mother, who lives in the city. His door to door time for this journey is approximately seven and a half hours. He has had do it several times since the impoundment. His next scheduled medical appointment is not until after the end of the impoundment period but he cannot easily get to attend to his mother’s needs. His sister, who lives somewhat closer to his mother, has taken up some of the slack.

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

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.

APPLICATION OF LAW TO FACTS

The Tribunal is satisfied that the Applicant will suffer exceptional hardship. He is at a time in his preparation for his hip operation when he needs to carry out a program of muscle strengthening to help ensure the success of the procedure. The lack of the vehicle has prevented him from carrying out that program. He also lives in an isolated area and is dependent on the goodwill of neighbours, not only for the necessities of life, but for transportation to the Greyhound bus to begin his long trek to the city. Looked at as a whole, this picture elevates his circumstances beyond mere inconvenience and into exceptional hardship.

Having found that the Appellant is suffering exceptional hardship, it is not necessary to address the ground that the vehicle was stolen. Suffice it say that the Appellant did not advance that ground with any great conviction but there was evidence to support it – particularly the fact that the Appellant had not left his keys readily accessible and his son had had to hunt for them.

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 Appellant’s motor vehicle.

LICENCE APPEAL TRIBUNAL

D. Gregory Flude, Vice-Chair.

RELEASED: May 27, 2014