Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2014-08-19
FILE:
8979/MVIA
CASE NAME:
8979 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:
Sanjay Kapur, Agent
Heard by teleconference:
August 12, 2014
REASONS FOR DECISION
A hearing was held on August 12, 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 13, 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: 2003 CHEV AVL (the “vehicle”)
Date of Appeal: July 18, 2014
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. 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 has three children to support. Further, without the vehicle, the Appellant has no way to transport herself and her family. The suspended driver is the Appellant’s common law partner and is on disability. According to the Appellant she can neither afford the cost of the impoundment nor the repairs to the vehicle.
At the hearing, the Appellant was sworn in as a witness.
In her testimony, the witness reiterated the comments made in the Notice of Appeal, explaining further that she has had two house fires, which require her to now live out of the house.
The witness affirmed that she is off work due to extreme depression and has no income to support herself and her three children. Further, she is not sure she will be able to afford repairing the vehicle.
The witness explained that she had just purchased the vehicle and felt uncomfortable with the brakes. Her common law partner wanted to test drive the vehicle and took it out while she was sleeping, after she had refused permission for him to drive.
In cross-examination, the Registrar’s Agent questioned the Appellant as to another vehicle owned by the Appellant, which the Appellant explained has been scrapped.
The Appellant did not have a vehicle for approximately two months before the impoundment; she had just bought the vehicle the day before the impoundment. She was using a friend’s vehicle, which has now been returned.
Since the impoundment the Appellant’s daughter purchased a vehicle which the Appellant has been using since the impoundment.
The Appellant attested that she has no income as she is not able to work due to depression. Her partner is incarcerated.
The Appellant asserted that she has no idea how the suspended driver obtained the keys as she does not recall where she had left them. She believes that the accident happened because the brakes failed. She has never allowed him to drive in the past because the suspended driver had been drinking.
The Appellant was aware of a suspension but assumed it was over.
The Appellant adamantly asserted that she was asleep when the suspended driver took the vehicle.
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:
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;
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 MTO records indicating that the driver at the time of impoundment had been convicted of Blood/Alcohol Content In Excess of .08 under the Criminal Code of Canada 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:
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 here appeals on the basis of sections 50.2(3) (a) (b) (c) 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:
- (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
In closing, the Appellant emphasized that she is unsure how she is going to afford to repair the vehicle.
In his summary statement, the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.
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 of financial hardship, the Registrar’s Agent pointed out that the Appellant was able to get around without a vehicle before the impoundment, with the help of a friend and now she is able to get around with her daughter’s car, thus the evidence is clear that an alternative vehicle to the impounded vehicle exists.
According to the Registrar’s Agent, the Tribunal cannot consider the losses mentioned by the Appellant.
With respect to the vehicle being stolen, the Registrar’s Agent argued that it appears that the Appellant may have indirectly given permission for the suspended driver to take the vehicle as she cannot account for the location of the keys, and the discussion about the possibility of failing brakes, thus the vehicle cannot be considered as stolen.
The onus is on the Appellant to establish their grounds of appeal as provided in section 50.2(3) of the Act.
The Tribunal found the witness to be straightforward and forthcoming, responding to all questions without any hesitation or evasiveness. The Tribunal accepts her testimony as credible. Further the Registrar’s Agent did not question the credibility of the witness.
The Tribunal accepts the witness’s testimony that the Appellant could not have given care and control of the vehicle to the suspended driver, as she was asleep when the vehicle was taken. Further, 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 may be considered as “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 are met.
As such, the Tribunal finds that the criteria of Section 10 (1) of the Ontario Regulation 631/98 are 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: August 19, 2014