Licence Appeal Tribunal
FILE: 9218/MVIA
CASE NAME: 9218 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 -and- Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: December 3, 2014
REASONS FOR DECISION AND ORDER
A hearing was held on December 3, 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”).
THE TRIBUNAL RULED TO SET ASIDE THE IMPOUNDMENT pursuant to section 55.1(3) of the HTA.
PRELIMINARY MATTERS
The Tribunal noted that in his Notice of Appeal, the Appellant wrote that the vehicle was impounded for 90 days but that the Notice of Impoundment is for 45 days. The Appellant stated that he believed it was for 90 days because this was what was indicated on the handwritten Notice to Registrar. Mr. Kapur confirmed that the impoundment is only for 45 days.
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: 2012 Ford SRW (the “vehicle”)
Date of Appeal: November 16, 2014
ISSUES
Should the Tribunal order the Registrar to release the motor vehicle on the basis that it 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 will result in exceptional hardship?
FACTS
Evidence for the Appellant
The Appellant operates a small structural steel and welding business. The impounded truck is normally used to transport tools and equipment to the various job sites. The Appellant also uses it to drive three to four of his employees to job sites, describing himself as both “boss and car pooler” and noting he does so because two of these employees, including the suspended driver in this case, do not have valid driver’s licences. These employees normally come to his house and he then drives them to the job sites.
Each year, the Appellant hunts for moose. He testified that he was hunting in another part of the province at the time the vehicle was impounded and he included a copy of the hunting permit in the documents he submitted with his Notice of Appeal (Exhibit 2).
Because he was going to be away for a few days, he asked one of his employees, C.G., who has a valid licence, to drive the vehicle to the job site. The Appellant left the vehicle outside of his garage with the keys in the ashtray. On the day the vehicle was impounded, C.G. failed to arrive at the Appellant’s house. The Appellant understands that the suspended driver, who is his cousin, therefore took it upon himself to drive the vehicle to work. Two other employees were in the vehicle when it was stopped by police en route to the job site.
When the Appellant learned that his vehicle was impounded, he phoned the Ontario Provincial Police (O.P.P.) officer who had issued the order and explained that the vehicle had been taken without his permission. The O.P.P. officer asked him if he wished to charge the suspended driver with theft. The Appellant testified that he chose not to, stating that he believed the suspended driver “was in enough trouble already.”
The Appellant owns two other trucks. Since the impoundment, he has been using the older of these two vehicles to drive to work. He noted that he does not wish to use his newer vehicle because his employees do not take care with tools and equipment. The contract he currently has was not impacted by the impoundment, but the Appellant noted that the cost he would incur to release the vehicle would be a hardship.
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 Applicant were as follows:
Copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle is registered in the name of the Applicant as owner;
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;
Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;
Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted under the Criminal Code of driving while disqualified pursuant to which the driver’s licence of the driver was then suspended for life.
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 Applicant 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 it was detained in the 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:
- (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.”
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, 3rd 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.
- 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.
The section also provides that the Tribunal may not, except in certain circumstances, consider:
- 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 only if the owner demonstrates all of the following:
- 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.
The regulation states that the Tribunal cannot consider inconvenience to any person as being exceptional hardship.
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
With respect to the issue of exceptional hardship, Section 10 of Regulation 631/98 is very specific. It provides the Tribunal with the criteria the Appellant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the Appellant has an alternative to the motor vehicle.
In this case, the Appellant testified that he has two other vehicles, one of which he is using to replace the impounded truck. Because the Appellant does have alternatives available to use of the impounded vehicle, the appeal must fail on the ground of exceptional hardship as set out in subsection 50.2(3)(d) of the Act.
With respect to whether or not the vehicle was stolen, the evidence indicates that the Appellant made arrangements for a licensed driver to drive the vehicle to the job sites during his absence. The Appellant was well aware of the status of the suspended driver’s licence and testified that he did not give him permission to drive the vehicle. There was no evidence to indicate that the suspended driver had driven the vehicle in the past,
Mr. Kapur submitted that the vehicle was not stolen because, by leaving the keys in its ashtray, the Appellant had acquiesced to its use. Mr. Kapur cited 8807 v Registrar of Motor Vehicles, 2014 CanLII 30050 (ON LAT), in which Vice Chair Flude wrote the following:
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.
The case before the Tribunal is distinguished from the cited case by the fact that the Appellant did not suggest the vehicle was not stolen, notwithstanding the fact that he chose not to pursue charges. The Tribunal notes that it is not necessary for charges to be laid in order to prove that a vehicle was stolen. Moreover, the Appellant’s employees were in the habit of meeting at his home to drive to the job sites. That the Appellant left the vehicle in its usual spot does not constitute acquiescence. The Appellant testified that he only allowed a licensed driver, or what he described in his Notice of Appeal as a ‘designated driver’ to operate his vehicle. The Tribunal finds his testimony to be credible and concludes that the vehicle was taken by the suspended driver without the Appellant’s permission. Therefore, the appeal succeeds on the ground of stolen as set out in subsection 50.2(3)(d) of the Act.
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
Mary Ann Spencer, Presiding Member
Released: December 4, 2014