9017 v. Registrar of Motor Vehicles, 2014 CanLII 61014

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2014-10-07

FILE: 9017/MVIA

CASE NAME: 9017 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: Self-represented

For the Respondent: Sonia De Santis, Agent

Heard by teleconference: August 26, 2014

REASONS FOR DECISION

A hearing was held on August 26, 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 August 27, 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 TOYT UVL (the “vehicle”)

Date of Appeal: August 6, 2014

By way of preliminary matters, the Tribunal took a 15 minute recess to allow the Appellant to review the documents sent by the Ministry which she did not receive prior to the hearing. After reviewing the documents, the Appellant was given the option to adjourn but chose to proceed.

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

ISSUES

In the Appellant’s request for hearing (Exhibit #1), the focus was on exceptional hardship as a ground for appeal. The evidence at the hearing made it clear 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. In a hearing of this nature, the Tribunal may consider any grounds for relief that arise in the evidence without the requirement for an Appellant to specifically outline the grounds in the Notice of Appeal. Accordingly, the Tribunal considered the ground that the vehicle was stolen at the time of the impoundment.

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 states that the loss of the vehicle will cause exceptional hardship because she needs the vehicle to go work and to buy groceries. The Appellant explained that she had no idea that her husband had the spare keys to her vehicle. Further, according to the Appellant, the car was taken without her knowledge or consent while she was walking around the campsite talking to other campers. When she next looked to their campsite, where she thought her husband was unloading the car, he was gone. Someone told her that they saw him drive away. She wondered how he could do that because she had the car keys. She then tried to call and text him, but did not get a reply.

At the hearing, the Appellant was sworn in as a witness. In her testimony, the Appellant reiterated the comments made in the Notice of Appeal, explaining that her husband took the car without her knowledge.

Further, the Appellant testified that she was aware her husband had no licence and had told him not to drive her car.

In cross-examination, the Appellant explained that she was off talking to some other campers when she noticed that her husband was gone. According to the Appellant, she had taken the keys out of the ignition.

In her evidence, the Appellant did state that she has been able to continue working, using public transportation or at times getting rides with friends.

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 on April 14, 2004 of Ability Impaired under the Criminal Code 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) 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

The Appellant made no closing statement.

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 that the vehicle might have been stolen, the Registrar’s Agent argues that the vehicle was being “borrowed” by the suspended driver, not stolen, as he intended to return to the campsite.

According to the Registrar’s Agent, the Appellant is still working and has not proven significant losses.

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

The Tribunal found the Appellant to be straightforward and forthcoming, responding to all questions without any hesitation or evasiveness. The Tribunal accepts her testimony as credible.

Though the Appellant raised “exceptional hardship” as a ground of appeal, as noted above, the evidence before the Tribunal focused on the ground of ‘stolen’. The evidence is that the Appellant has alternate transportation available to her; she has not missed work due to the impoundment. Therefore, that ground of appeal set out in section 50.2(3)(a) was not established.

The Tribunal accepts the Appellant’s testimony that she could not, and did not, give care and control of the vehicle to the suspended driver, as she was not aware that her husband had taken the vehicle and she had specifically warned the suspended driver not to drive the vehicle. Thus, given that the vehicle was driven without the knowledge and permission of the owner it can be concluded that the vehicle was “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 is 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: October 7, 2014