8925 v. Registrar of Motor Vehicles, 2014 CanLII 46364

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-07-31

FILE:

8925/MVIA

CASE NAME:

8925 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:

Dr. Antoine A. Aouad, Member

APPEARANCES:

For the Appellant:

Bernadette Cottle, Agent

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

July 23, 2014

REASONS FOR DECISION

A hearing was held on July 23, 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”).

After hearing the evidence and submissions, and pursuant to section 50.2(5) of the Act, the Tribunal ordered the Registrar of Motor Vehicles (the “Registrar”) to release the motor vehicle on July 24, 2014, with reasons to follow.

These are the reasons for the Tribunal’s Order.

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: 2000 DODG DAK (the “vehicle”)

Date of Appeal: July 3, 2014

By way of preliminary matters the Registrar’s Agent raised the issue that the Notice of Appeal was not completed by the Appellant but by his Agent. The Registrar’s Agent noted that there was no notice of representation filed. Further, the Registrar’s Agent objected to the Motion to extend the time for filing an appeal.

The Appellant’s Agent explained that she completed the Notice of Appeal of behalf of Appellant as he does not have a computer nor does he have the cognitive skills to prepare the appeal. Regarding the fact that she also signed the appeal form, the Appellant’s Agent just explained that it was easier since she had the computer in her home.

In her request for a Motion to extend the time of filing an appeal, the Appellant’s Agent explains that she owns an “old computer” which did not allow her to send a PDF file and had to take the USB stick to the library to submit the appeal.

The Tribunal took a short recess to deliberate a decision.

Upon resuming the hearing the Tribunal heard the Registrar’s Agent argument against granting the Motion to extend the time for filing an appeal. According to the Registrar’s Agent, the information with respect to the appeal process was given to the Appellant at the time of the impoundment . Further, according to the Registrar’s Agent there was neither serious illness nor hospitalization stated as a reason for not filing.

The Registrar’s Agent argues that there is no plausible excuse as to why the Appeal was not filed on time, as it appears there was plenty of time in which to file an appeal, as computer issues are not considered grounds for not filing. Further, according to the Registrar’s Agent there is no explanation as to why the owner of the vehicle could not come up with the $100.00 required to file the appeal, and, if the Appellant’s chose not to accept her offer to pay for the cost of the appeal, as honourable as that may appear, it is not sufficient reason in law to extend the time for the appeal.

The Appellant’s Agent replied that the owner of the vehicle is on a pension, and admits to the late filing being her fault; nonetheless, she felt responsible and told the Appellant that she would be covering the expenses. In fact, the Appellant’s Agent stated that she had to use her daughter’s credit card in order to file the appeal.

In reaching a decision, the Tribunal considered the fact that the Appellant chose an Agent who is not a licensed Paralegal. The Tribunal accepts the Appellant’s lack of knowledge of legal procedures and the relationship between the Appellant and his chosen Agent. The prejudice to the Respondent caused by this late filing is minor, especially when compared to the loss of the right to appeal if this Motion to extend is not granted. In these circumstances, the Tribunal recognizes the Agent as the representative of the Appellant and also grants the Motion to extend the time for filing the appeal.

All documents were entered into evidence as exhibits with the consent of both parties.

ISSUES

In the Appellant’s request for hearing (Exhibit #1), it appeared that only exceptional hardship was raised as a ground for appeal, but the evidence at the hearing made it clear that another ground may be applicable – that the vehicle was “stolen” at the time it was detained in order to be impounded, as provided in section 50.2(3)(a) of the Act.

FACTS

Evidence for the Appellant

A summary of the Appellant’s evidence follows.

The Appellant’s written submission filed with the Tribunal in support of the appeal was entered as Exhibit # 1. In the Notice of Appeal, the Appellant’s Agent states that the vehicle was lent to her, but she allowed the suspended driver to take care and control of the vehicle as she was feeling faint and unable to drive. The Appellant’s Agent asserts that the vehicle is needed for the owner to “buy his groceries” and to keep doctor’s appointments. Further, the impoundment will cause both the Appellant and the Appellant’s Agent exceptional hardship, as he is on a disability pension and she is on O.D.S.P.

At the hearing, the Appellant’s Agent was sworn in as a witness.

In her testimony, the witness reiterated the comments made in the Notice of Appeal, explaining further that the Appellant is a very independent individual in spite of his health issues, and the vehicle is needed to maintain his independence. Since he lives on a farm he needs the vehicle to get around.

The witness affirmed that at the time of the impoundment she was driving the vehicle, but suddenly felt ill It was at then that the suspended driver took over just to get the vehicle to a plaza, where they could stop safely and allow her to rest.

In cross-examination, the Registrar’s Agent questioned the Appellant’s Agent as to how the Appellant has been getting around since the impoundment. The Appellant’s Agent responded that she has been able to go back and forth almost every other day to ensure that the Appellant attends his medical appointments and gets his groceries.

The Appellant’s Agent asserted that the Appellant was adamant that the suspended driver was not to drive his vehicle. According to the Appellant’s Agent, the Appellant specified that the vehicle was to be driven by her alone and not his son, whom the Appellant knew was a suspended driver.

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 Appellant 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 Appellant 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 outlined in point 4 below;

3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;

4. Copy of the MTO records indicating that the driver at the time of impoundment had been convicted of Blood/Alcohol Content In Excess of .08 under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension For Life.

The Registrar did not call any witnesses.

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) (b) (c) 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 Highway Traffic 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, 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 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.”

APPLICATION OF LAW TO FACTS

In closing, the Appellant’s Agent emphasized that all three people involved are suffering; that she feels personally responsible for what happened and that she promised the Appellant that she would do whatever she could to have the vehicle returned.

In his summary statement, the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.

The Registrar’s Agent maintains that there is no doubt the driver was under suspension, as the evidence shows that the person driving the vehicle at the time of the impoundment was suspended.

Addressing the issue of financial hardship, the Registrar’s Agent pointed out that the Appellant has been having his medical appointments met and been able to get around with the assistance of the Appellant’s Agent, thus the evidence is clear that an alternative vehicle to the impounded vehicle exists. According to the Registrar’s Agent since the Appellant is not present, a case for financial hardship cannot be made. The Registrar’s Agent also emphasized that since the owner of the vehicle is not present, there is no way to assess whether the owner ever allowed the suspended driver to drive his vehicle, or whether he gave him permission to drive it on this occasion. The Tribunal does not agree that the Appellant is required to be present as a witness in every case. The Tribunal may make its decisions based upon all credible and reliable evidence.

With respect to the vehicle being stolen, the Registrar’s Agent argued that given that the Appellant‘s Agent confirmed that the Appellant does not consider that the vehicle was stolen and did not lay charges of theft against the suspended driver, the grounds that the vehicle was stolen at the time it was impounded cannot be considered. The Tribunal does not agree that a finding of “stolen” under the motor vehicle impoundment legislation requires either the owner to “admit” that the vehicle was stolen or the police to lay charges of theft against the suspended driver.

According to the Registrar’s Agent, there are no health or safety issues.

The onus is on the Appellant to establish his grounds of appeal as provided in section 50.2(3) of the Act.

The Tribunal found the witness to be straightforward and forthcoming, responding to all questions without any hesitation or evasiveness. The Tribunal accepts her testimony as credible. Further the Registrar’s Agent did not question the credibility of the witness.

The Tribunal also found that the witness had reliable knowledge of the issues she testified about. The Tribunal accepts the witness’s testimony that the Appellant gave her care and control of the vehicle, and he did not want or intend for his son to drive the vehicle, and he told the witness this. Thus, given that the vehicle was driven without the knowledge and permission of the owner it can be concluded that the vehicle may be considered as “stolen” at the time of the impoundment and the Tribunal so finds.

The Tribunal finds the criteria under section 50.2(3)(a) of the Act are met.

As such, the Tribunal finds that the criteria of Section 10 (1) of the Ontario Regulation 631/98 are met.

DECISION

After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal orders the Registrar to release the motor vehicle.

LICENCE APPEAL TRIBUNAL

Dr. Antoine A. Aouad, Presiding Member

Released: July 31, 2014