Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8609/MVIA
CASE NAME: 8609 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.
Applicant Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES: For the Applicant: Applicant’s Son, Agent
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: February 25, 2014
REASONS FOR DECISION
A hearing was held on February 25, 2014, at Toronto, Ontario, by teleconference to consider the Applicant’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.
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 Applicant
Motor Vehicle: 2007 Linc MKX (the “vehicle”)
Date of Appeal: February 7, 2014
ISSUES
As set out in the Applicant’s request for hearing (Exhibit #1), the owner appeals on the basis that the vehicle was stolen at the time it was impounded and that 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 vehicle was stolen at the time of the impoundment or that the impoundment will result in exceptional hardship?
FACTS
Evidence for the Applicant
A summary of the Applicant’s evidence follows.
The Applicant’s son, who is the suspended driver in this case, acted as agent for and testified on behalf of his father. The son lives with his parents and his two small children. The impounded vehicle is the only family vehicle and is normally driven by both his father and his mother. The mother does not work outside the home. The father is the owner/operator of a tractor trailer. The father was out of the country when the vehicle was taken without his consent and was subsequently impounded.
The son is dependent on methadone, having become addicted to narcotic painkillers after an accident. He testified that on the day of the impoundment, he had not had his methadone treatment for two days when he had not been able to obtain a second prescription after a faxed prescription had not been accepted by a pharmacy. He was experiencing withdrawal symptoms including shaking and vomiting. His mother suggested calling an ambulance but the son did not want to be transported to hospital because the processing at the hospital would mean a further delay in receiving the methadone treatment. Instead, the son decided to drive the family vehicle. He testified that he had a set of keys to the vehicle which he had found in the summer, and kept, after his son who had been playing with them had thrown them into the son’s toolbox. Neither of his parents were aware that he had these keys believing them to have been lost by the son’s ex-wife.
The son testified that his mother was unaware he was taking the vehicle because she was occupied with his two children who are 2 years old and seven months old. He indicated he was sick and was not thinking straight. While he was driving the vehicle to the pharmacy, he was pulled over by police. He called his father to whom the police also spoke. After completing the paperwork, the police officer drove him to the pharmacy to get his methadone.
The Applicant’s son testified that he has not driven the family vehicle before but indicated that he does, on occasion, put his children into the car in the driveway. He runs the vehicle and plays music which helps put his children to sleep. His mother normally turns the vehicle on in this situation.
Asked by the Agent for the Registrar about an incident involving the police which took place on January 12, 2014, the son stated that on that day he had been having an argument with his mother about his ex-wife. He stated that his ex-wife is an active addict and was calling the house frequently. He stated that no one had called 911 and suggested that a 911 call may have been made accidentally by either himself or his son pushing a cell phone button by accident. When the police arrived, he was in the process of putting his children into the vehicle in the driveway.
In the time period immediately following the impoundment, the father was able to find a parking spot for the tractor, which the municipality does not allow him to park at his home. While this spot was an estimated 30 kilometers from the home, the father was able to reach it by taking the bus and then walking approximately 5 kilometers. Loads were being dropped at this temporary location and the father was able to continue to work. However, this arrangement became unavailable approximately 10 days ago and the father is no longer working because the tractor has been returned to its normal parking spot in another municipality. The son testified that it is too expensive for his father to take a cab to reach the vehicle and continue to work.
The vehicle is also used to transport the elder of the son’s two children to daycare. The son testified that this child has had repeated illnesses and, while the daycare is within walking distance in good weather, the child is normally driven in cold weather. The child is scheduled to have drainage tubes inserted into his ears. After the vehicle was impounded, the child did become ill with a high fever and was transported to hospital in an ambulance.
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 of driving while disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until June 24, 2015.
Constable Michael Powell of Guelph Police testified on behalf of the Registrar. Constable Powell stated that he had a strong suspicion that the Applicant’s son was regularly operating the motor vehicle after an incident on January 12, 2014 when he responded to a 911 call made from the family home’s landline. A 911 call was made with no one identifying themselves. Calls were made back but when no one picked up, he was dispatched to the home. He arrived at 7:15 p.m. and observed the Applicant’s son loading a child into the vehicle in the driveway. The vehicle was not turned on. Constable Powell stated that the son appeared to become nervous and said he was not intending to drive anywhere. He advised he had been arguing with his mother. The mother confirmed the argument and initially said she had asked the son to leave the residence, although she subsequently recanted this statement.
Constable Powell testified that after the January 12, 2014 incident, he drove by the Applicant’s home and observed the vehicle in the driveway. On January 26, 2014, the vehicle was in the driveway the first time he drove by but gone on his second drive-by. On January 27, 2014, the vehicle was in the driveway when Constable Powell first drove by the home but gone later. He then observed the vehicle being driven by the son. When Constable Powell stopped the vehicle, the son was co-operative and immediately told the officer that he was in need of methadone. He declined an ambulance, stating he needed to get to a pharmacy to get his prescription. Constable Powell said the son called his father and spoke to him in Polish. Constable Powell then spoke to the father and provided details about the impoundment. The father was upset and the conversation was focused on how the father could get the vehicle back. At no time did the father suggest the vehicle was being driven without permission. After speaking to the father, Constable Powell then drove the son to the pharmacy.
Asked by the Tribunal if he had ever seen the son driving the vehicle before the impoundment incident, Constable Powell stated he had not.
LAW
Section 55.1 of the Highway Traffic 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)(d).
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.”
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, 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. 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.
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
In this case, in the Notice of Appeal filed by the Applicant, the Applicant indicated that he was appealing the impoundment because the vehicle had been taken without his permission and because its loss was causing exceptional hardship.
Neither the Applicant nor his wife testified at this hearing. The evidence indicates that the Applicant was working out of the country at the time the vehicle was taken by his son. The Applicant drives a truck for a living and the family vehicle is regularly left for the use of his wife. The Applicant’s son testified that on the day of the impoundment he was suffering withdrawal symptoms after two days without his methadone dose. His mother suggested that an ambulance be called to transport him to the hospital. The son refused and testified that he was not thinking straight and took the vehicle because he was focused on reaching the pharmacy to obtain his prescription. Constable Powell testified that after he stopped the vehicle, the son immediately stated he was in need of methadone but he again refused an ambulance. The fact the mother was advocating another solution to the situation supports the Applicant’s position that the vehicle was taken without permission when it was impounded on January 27, 2014.
Constable Powell testified that he strongly suspected that the son regularly used the vehicle, basing this on his experience at the family home on January 12, 2014 when he responded to a 911 call from the home’s landline. The son denied making this call and suggested it had perhaps been accidentally made from a cellphone. The implication is that the call was made by the mother who Constable Powell testified told him she had asked her son to leave the home. When Constable Powell arrived at the home on January 12, 2014, he saw the son placing one of his children in the car. While the son denied he was intending to drive the vehicle, the Tribunal finds this stretches credulity given Constable Powell’s testimony. What is at issue, however, is whether the son had permission to drive the vehicle. There is no evidence to suggest he had this permission on January 12, 2014. The Tribunal cannot therefore extrapolate from this incident a conclusion that the son had the regular use of the vehicle notwithstanding the son’s testimony that he did regularly use it in the driveway to help put his small children to sleep. Nor, given the fact the Applicant’s wife regularly had use of the vehicle, can the Tribunal put much weight on Constable Powell’s testimony that he noticed the vehicle previously missing from the driveway when driving by on patrol. The Tribunal therefore concludes that on January 27, 2014, the vehicle was taken without the permission of the Applicant or the Applicant’s wife.
The evidence indicates that, in accordance with section 50.2(3)(a) of Regulation 631/98, the vehicle was stolen at the time it was impounded. Given this finding, the Tribunal does not need to consider 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
Mary Ann Spencer, Presiding Member
RELEASED: February 26, 2014