Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2014-02-18
FILE:
8563/MVIA
CASE NAME:
8563 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:
Gary Yee, Associate Chair
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Sanjay Kapur, Agent
Heard in Toronto:
February 4, 2014
REASONS FOR DECISION
A hearing was held on February 4, 2014, at Toronto, Ontario, to consider the Applicant’s appeal under section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”).
By Order dated February 5, 2014, the Tribunal ORDERED THE REGISTRAR TO RELEASE THE VEHICLE.
BACKGROUND
A motor vehicle was impounded under 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: 1999 Jeep GCK (the “vehicle”)
Date of Appeal: January 16, 2014
The suspended driver of the impounded vehicle is the son of the owner (the Applicant). He lives with his parents. On January 1, 2014, he took this vehicle to buy some cigarettes and gas. He was stopped by the police and the vehicle was impounded. The Applicant stated in her Notice of Appeal that “My son drove my vehicle with a suspended licence without my knowledge.” The Applicant also said that this impoundment was causing her exceptional hardship.
ISSUES
From the Notice of Appeal (Exhibit #1), it appears that the Applicant is appealing on two grounds – that the motor vehicle was stolen at the time that it was detained in order to be impounded, 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.
LAW
Section 55.1 of the Act provides that a motor vehicle may be detained and impounded, and section 50.2 provides the vehicle owner’s right of appeal to the Tribunal. The Tribunal may, under subsection 50.2(5) of the Act, confirm the impoundment or order the Respondent to release the vehicle. Under subsection 50.2(8), the decision of the Tribunal is final and binding.
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 Tribunal notes that the meaning of “stolen” is not defined in the Highway Traffic Act. The Criminal Code of Canada (the "Code") R.S.C. 1985, Chap. C-46 provides some guidance, but the word “stolen” must be interpreted in the context of the Highway Traffic Act, and in the context of these impoundment provisions.
Section 1 of the Code states that “steal” means to commit theft. Section 322(1) of the Code defines “theft” as follows:
- (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.
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.”
For the ground of exceptional hardship, section 10 of Ont. Reg. 631/98 sets out very detailed and strict criteria that the Tribunal must apply when deciding whether there is exceptional hardship. First, the Applicant must prove that there is no available alternative to the impounded vehicle. Only then may the Tribunal consider whether the impoundment results in exceptional hardship, which is defined in a narrow way by the legislation.
The burden of proof is on the Applicant to satisfy the Tribunal that at least one of the grounds of appeal has been proven on a balance of probabilities.
FACTS AND ANALYSIS
The Tribunal finds that the Applicant’s vehicle was stolen within the meaning of the Act. The exceptional hardship ground cannot succeed because the Applicant has not met the legislative requirement that she had no alternative to this impounded vehicle.
The Respondent filed the following documents, which the Tribunal admitted into the record:
Certified copy of the Notice to Registrar setting out the information that supported the 45-day impoundment;
Certified copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted on December 2, 2013 of driving with blood-alcohol content over .08, which resulted in the driver’s licence of the driver being suspended until December 2, 2014;
Certified copy of the Ministry of Transportation vehicle record indicating that the impounded motor vehicle was registered in the name of the Applicant as owner, as of the date of the impoundment; and
Certified copy of the Notice of Impoundment.
The Respondent also provided some documents as late disclosure, which the Tribunal permitted to be entered as evidence. These consisted of the proof of registration for a vehicle owned by the Applicant’s spouse at the same residence, a copy of a police officer’s notes of a visit he made to the Applicant and her son (the driver), and also a map showing the location of the Applicant’s home in relation to public transit availability.
The Applicant testified at the hearing, and the Tribunal finds that she was generally credible. The Applicant testified mostly in Italian and sometimes in English. She had not requested an interpreter, but she brought a family friend who was affirmed as an interpreter. There was no objection from the Respondent, and the Tribunal proceeded on this basis. There were times when it was obvious that the Applicant did not fully understand the question, or started talking in English or Italian about matters that she had not specifically been asked about. These difficulties appeared to be more related to the Applicant’s general lack of comprehension about the relevant issues rather than her inadequate English. In some of these occasions, the family friend was permitted to act as the Applicant’s representative as well. The Tribunal notes that the proactive and flexible approaches that were used to deal with the Applicant’s situation did not affect the fairness of the hearing, and indeed, it may have been difficult to proceed in any other manner.
Overall, despite the language and comprehension difficulties, the Tribunal is able to find that the Applicant was a credible witness. She was sometimes emotional in her responses, but this appeared genuine. She was very upset that her 47-year-old son would disappoint her like this and cause this kind of trouble. She did not know that his licence was suspended until the day of this impoundment. The Applicant provided plausible explanations for some of the inconsistencies in the evidence, and in particular, the police notebook entry that she signed to say that she had given consent to her son to take the vehicle.
Stolen
The Tribunal’s decision on this ground of appeal depends largely upon the credibility of the Applicant and her testimony that she did not know the full details about the status of her son’s licence and that she did not consent to her son taking her Jeep. The Applicant did not know that her son’s driver’s licence was suspended until the police impounded her vehicle on January 1, 2014. She was cooking when her son took her Jeep around 11 a.m. She thought he was walking to get his cigarettes.
The Respondent’s representative cross-examined the Applicant about her son’s alcohol-related driving incidents. This included his three-day suspension on January 19, 2012, for having over 0.05 blood/alcohol content, then a three-month administrative driver’s licence suspension on December 22, 2012 for a second infraction, and finally a one-year suspension starting December 2, 2013 for his conviction for driving with over 0.80 blood/alcohol content arising out of that December 22, 2012 occurrence.
The Applicant’s answers were not entirely clear – she referred to her son having told her at some point about getting “a ticket”, and also about her son talking about the police stopping him because they thought he was drunk (on December 22, 2012). The Applicant said that she didn’t think he would be drunk because he is allergic to whisky and gets all red. The Applicant’s son told her that his lawyer said that he could drive to and from work only, and the Applicant accepted what he said at face value. The Applicant said that she could not remember much about either the January 19, 2012 or December 22, 2012 incidents. Despite this lack of clarity in some of the Applicant’s answers, the Tribunal finds that there was plausibility and consistency in her explanations, and she was credible in her answers.
The Respondent relied upon an entry in a police officer’s notebook that the Applicant had signed. The Respondent called this officer as a witness, and he testified by telephone. The officer had gone to the Applicant’s home on January 25, 2014, apparently after receiving a letter from the Respondent that included a copy of the Applicant’s Notice of Appeal to this Tribunal. This Notice of Appeal said “My son drove my vehicle with a suspended license without my knowledge.” The officer said that he went to discuss the issue of consent. He spoke to both the Applicant and her son at the same time. The officer’s brief notebook entry about this visit included the following notation written by the officer with an “x” beside two spots for the driver and the owner to sign: “vehicle was not taken without consent – consent was given.” This notation was signed by the Applicant and her son.
The Tribunal does not give much weight to this signed note because of two troubling concerns. One is that the Applicant has inadequate English, which was a point she asked the officer about. The officer responded to this concern by saying that he spoke slowly and clearly, and he believed that the Applicant understood. However, the Tribunal notes that the officer spoke to the Applicant in the presence of her son, and that her son was helping to explain some points to her. This is the same son who had lied to the Applicant about his driving record and who was facing a possible criminal charge of stealing his mother’s vehicle during this visit by the police officer.
This leads to the second concern, which is bigger than the language comprehension one. The officer said that he explained to the Applicant and her son that he had received the Applicant’s “letter to the Ministry” – presumably the Notice of Appeal to the Tribunal – and the officer told them that either her son could be charged with taking a vehicle without consent or she could be charged with “fraud.” While the police should of course investigate possible crimes, it would be troubling if every impoundment appeal on the grounds of “stolen” that involves a family member or friend as the driver could lead to a police visit in which there is a threat of either the family member or friend being charged with theft or the vehicle owner being charged with fraud for allegedly lying in the notice of appeal that asserted “stolen” as one of the grounds.
In the circumstances of this case, the Tribunal places no weight on the signed statement by the Applicant and her son that she had given consent to him to drive her vehicle. Not only was there the Applicant’s comprehension problem, it did not help that her son was present at the time of the officer’s discussion about consent, and it certainly did not help that the Applicant and her son signed this statement after the officer raised the possibility of criminal charges against them.
The Tribunal notes that there may be many situations where the owner of a vehicle has not given consent to the owner’s family member or friend to drive the vehicle, but the owner understandably would not want criminal charges laid against their family member or friend. While an owner’s action of reporting a theft to the police or the actual laying of charges would strongly support the owner’s appeal that the vehicle had been “stolen”, the case law of this Tribunal is clear that no such police report or charges are required.
In a situation with several family members living together, there will be different situations regarding who can use which car and who should ask for permission from whom, or whether there is some implied consent or unspoken sharing arrangement. It is not entirely clear from the evidence at this hearing what kind of understanding there was about the Applicant’s son using her Jeep. There were no questions and no testimony from the Applicant regarding whether she had explicitly told her son that he was not allowed to use her Jeep. But the Applicant did not know that her son’s driver’s licence was suspended. He did not tell his mother the truth or the details about his suspension.
The Applicant knew there had been at least one impaired driving incident involving her son. This raises the issue of implied consent, or perhaps acquiescence, if the Applicant was wilfully blind and did not want to find out more details about the status of her son’s driver’s licence. On this issue, the Tribunal notes that the Applicant is a 73-year-old mother who did not understand English that well, and she relied upon her 47-year-old son, who lied to her or at least failed to tell her the relevant details of his two alcohol-related driving incidents and the status of his driver’s licence. The evidence shows that the Applicant left her car keys in an area available to everyone, and there was no evidence that she explicitly told her son to not drive her Jeep. In some cases, this might be enough to support a finding that there was implied consent or some form of acquiescence. However, the facts in this case support a finding on a balance of probabilities that this Applicant was the victim of her son’s lies or misleading statements.
On the basis of the facts in this case, there was no implied consent. The “implied consent” issue is a way of looking at the “stolen” defence from the owner’s perspective. In other words, what actions or inaction of the vehicle owner may have caused the suspended driver to think that the owner permitted that vehicle to be driven by the suspended driver? The perspective of the owner is important when considering whether the vehicle was “stolen” because the impoundment provisions are intended to deter and penalize owners of vehicles from deliberately or carelessly allowing suspended drivers to drive their vehicles.
In summary, the Tribunal finds that the Applicant has met her burden of proof to show that her vehicle was “stolen” within the meaning of the impoundment provisions in the Highway Traffic Act when her son drove her vehicle at the time it was impounded. But now that the Applicant is more aware her son’s situation, she certainly has to do more to stop her son from driving her vehicle. The Applicant said “I will hang him” if he drives her Jeep any more, but this expression of anger, genuine as it may be, will not be enough. The Applicant now knows, from the disclosure of documents in this appeal, that her son has a driving record which shows his conviction for driving with blood-alcohol content over .08 on December 2, 2013, and his licence was suspended until December 2, 2014. Even after that date, the Applicant probably will need to do more than just rely upon her son telling her that he is allowed to drive again.
Exceptional Hardship
The Tribunal does not need to consider this ground of appeal since it is granting the appeal on the basis of the vehicle having been stolen. But for completeness, the Tribunal notes that this ground of appeal would fail because the Applicant did not pass the first hurdle – that of proving that no alternative to the impounded vehicle was available. The detailed provisions in section 10 of Ont. Reg. 631/98 are very strict and they narrowly limit what the Tribunal may consider as being exceptional hardship.
The Applicant testified about the difficulties that this impoundment has caused her. But the evidence was clear that she had a second vehicle registered in her name, though she much preferred her Jeep in the winter. Her spouse also has a vehicle, but the Applicant said he was not in good health and his car also was not good for the winter. The Applicant acknowledged that she used her second car to go to her doctor appointments and run other errands, but she did not go out as much. This is obviously not enough to trigger the exceptional hardship grounds of appeal in this legislation.
DECISION
After considering the evidence and the law, under the authority of section 50.2(5) of the Act, the Tribunal ordered the Respondent to release the vehicle.
LICENCE APPEAL TRIBUNAL
Gary Yee, Associate Chair
RELEASED: February 18, 2014