8807 v. Registrar of Motor Vehicles, 2014 CanLII 30050

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE:

2014-06-05

FILE:

8807/MVIA

CASE NAME:

8807 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 “Act”).

Pursuant to section 50.2(5) of the Act, the Tribunal CONFIRMS THE IMPOUNDMENT. As a result, the Appellant’s motor vehicle will remain detained at the impound facility until the conclusion of the 45 day impound period.

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: 2013 Ram RTR (the “vehicle”)

Date of Appeal: May 1, 2014

ISSUES

As set out in the Appellant’s Notice of Appeal (Exhibit #2), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in section 50.2(3)(d) of the Act. She also alleged in her grounds of appeal that she was out of town when the vehicle was impounded 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 fail or refuse to provide breath or blood sample under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until August 6, 2014;

3. Vehicle record for the impounded vehicle;

4. Notice of Impoundment sent to the Appellant;

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

6. Notice to Registrar regarding a 7-day vehicle impoundment and a 90-day ADLS suspension with respect to the same driver and the plated motor vehicle on November 29, 2012;

7. Driver information of the suspended driver; and

8. RIN history of the Appellant.

Evidence for the Appellant

The Appellant and the suspended driver live together in a small town. They keep their keys, including the keys to the vehicle, on a board by the door. On April 23, 2014, the Appellant took a trip to Ottawa for a couple of days to visit her daughter. Before she left, she made sure that the house was well provisioned and that the suspended driver would not need to travel to pick up supplies. She returned by bus on April 25, 2014 and arrived home to find that her vehicle had been impounded. According to the evidence of the impounding OPP officer, he had stopped the suspended driver about 200 metres from his driveway. The driver was returning from a visit to his niece who lived several blocks away.

The Appellant stated that she was aware of the fact that the driver was suspended from driving. As a result, she did all of the driving in the house. The driver had informed her before she left for her trip that he would not need to go anywhere while she was away. She did not think to take the car keys with her, so when the driver’s niece called with a problem the keys were available and he took the car to visit her. He was on his way back when the police stopped him.

The Appellant assists seniors to get to major centres for appointments and shopping. When her vehicle was impounded and it appeared that a number of weeks would lapse before the Tribunal hearing, she purchased a van. She is able to fulfill her own transportation needs and assist others in need with the van.

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.

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

Issue Should the Tribunal order the Registrar to release the motor vehicle on the basis that the motor vehicle was stolen at the time in respect of which the vehicle was detained in order to be impounded?

The 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.

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, 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

There was no evidence before the Tribunal that the Appellant will suffer exceptional hardship as a result of the vehicle impoundment. The Tribunal acknowledges that she must incur the cost of the towing and impoundment itself, as well as the cost of a replacement vehicle. The evidence is clear that the Appellant has an alternative to the impounded vehicle. As a result, the Tribunal may not consider inconvenience or financial or economic loss. Accordingly, this ground of appeal must fail.

The sole evidence in support of the Appellant’s submission that the vehicle was stolen is that the Appellant was absent from her home at the time. Notwithstanding this, she left the keys readily available. The Registrar urges the Tribunal to conclude that there was acquiescence in the suspended driver using the vehicle. He points to the ADLS and 7-day suspension event in 2012. This evidence does not support the proposition that there was acquiescence since the suspended driver’s licence was not then subject to a Criminal Code suspension. It was those events that gave rise to the Criminal Code suspension. However, the ease of access to the keys, and the Appellant’s answer to questioning that she did not believe the vehicle was stolen, persuade the Tribunal that access to and use of the vehicle was unregulated sufficiently to support a finding of fact that there was acquiescence by the Appellant in the suspended driver’s use of the vehicle. Accordingly, this ground of appeal must fail.

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 Appellant’s motor vehicle, and it will remain at the impound facility until the conclusion of the 45 day impound period.

LICENCE APPEAL TRIBUNAL

D. Gregory Flude, Vice-Chair

Released: June 5, 2014