Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 9236/MVIA
CASE NAME: 9236 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: 9236
-and-
Respondent: Registrar of Motor Vehicles
REASONS FOR DECISION AND ORDER
ADJUDICATOR: David B. Caryll, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: December 16, 2014
REASONS FOR DECISION
A hearing was held 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 orders the registrar to release the vehicle.
INTRODUCTION
The Registrar made an order under section 55.1 of the Act to impound a motor vehicle for a period of 45 days. That order has been appealed by the owner. The owner, motor vehicle, and date of appeal are as follows:
Owner: the Appellant
Motor Vehicle: 2008 Buick Marque (the “vehicle”)
Date of Appeal: November 16, 2014
ISSUES
As set out in the Notice of Appeal, the owner appeals on the basis that the vehicle was stolen at the time of the impoundment order; and, that the loss of the vehicle will result in exceptional hardship, as provided in sections 50.2(3)(a) and (d) of the Act.
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the vehicle was stolen at the time it was impounded?
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment order will result in exceptional hardship?
BACKGROUND FACTS
The following facts are not in dispute.
At 11:15 am on Saturday, November 15, 2014, the police stopped the vehicle on a public road and discovered that the driver’s licence was under suspension for an offence under the Criminal Code. The police impounded the vehicle.
Documents were tendered into evidence by the Registrar, on consent, which confirmed the Appellant as owner of the impounded vehicle and the fact that the vehicle at the time it was detained was being driven by a person convicted of an offence under the Criminal Code of Canada.
EVIDENCE
A summary of the Appellant’s evidence follows.
The Appellant testified that on the morning of Saturday, November 15, 2014, she went to visit a neighbour. On returning home to do some chores, she discovered her vehicle was gone. She kept calling the mobile phone of her common-law spouse (“spouse”), but he never answered.
Sometime after 11:00 a.m., the same day, the police phoned to say they had stopped the vehicle and found the driver, her spouse, to be driving it with a licence under suspension because of a prior conviction under the Criminal Code. They told her they had impounded the vehicle.
She said she knew he was disqualified from driving. She told him previously he was not to drive her vehicle. She also testified that he had never done this before.
When asked where she kept the keys at home, she said on top of the fridge. She agreed that he knew they were there.
She was asked if she had laid charges with the police. She replied that she tried but the police said they wouldn’t as the two of them lived in the same house.
She testified that he had broken any bond of trust between them and has ended their relationship.
Much of the evidence lead by the Appellant was related to the issue of exceptional hardship. However, as the Tribunal finds that the Appellant has successfully proven that her vehicle was stolen, the Tribunal will not review this issue in detail. The Appellant told the Tribunal about the significant impact on her ability to meet all her job responsibilities in particular, and the her lack of alternate transportation.
THE 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:
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.
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.
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 before this Tribunal appeals on the basis of sections 50.2(3)(a) and (d). However, as a practical matter, it will not be useful to include in this decision the law as it related to exceptional hardship.
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 Tribunal notes that 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:
- (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.”
APPLICATION OF LAW TO FACTS
The argument that a suspended driver has stolen the vehicle is one that is easy to assert. The Tribunal must use a great deal of circumspection in considering this argument. One of the indicia that a vehicle has been stolen, of course, is the laying of charges. Another is the lack of a relationship between the owner and the driver to support an inference that the owner has lent the vehicle to the driver. It does not flow from these indicia that one family member cannot steal a vehicle from another. To complicate the analysis, in a close family relationship, the laying of charges may result in such bad feelings that the owner does not want to contemplate such action. The Tribunal must consider the totality of the facts to determine if, in fact, the vehicle was stolen or if the argument is being used opportunistically. There may be instances when specific permission for use was not given but the overall facts support a conclusion that use of the vehicle by the suspended driver is acquiesced in by the owner.
In this case, the Appellant testified that she knew the driver was disqualified from driving. In addition, she said, she told him previously that he was not to drive her vehicle, and she added, he never had done so. What adds credibility to her testimony is the fact that she asked the police if they could press charges against the driver. They refused on the grounds that she and the driver were co-habiting. Further, she has ended their relationship, supporting, in the Tribunal’s view, a finding that she did not acquiesce to his taking the vehicle.
The Tribunal finds that the Appellant on a balance of probabilities has met the burden of proof to establish that the vehicle was stolen, and, therefore, the appeal on these grounds succeeds.
Given that the Appellant is found to successfully proven that the motor vehicle was ‘stolen’ for the purposes of the Act, it is unnecessary for the Tribunal to determine the issue of exceptional hardship. .
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
David B. Caryll, Member
RELEASED: December 18, 2014