9162 v. Registrar of Motor Vehicles, 2014 CanLII 86274

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-11-17

9162/MVIA

9162 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

Dr. Antoine A. Aouad, Member

For the Appellant:

Self-represented

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

November 5, 2014

REASONS FOR DECISION

A hearing was held on November 5, 2014, in Toronto, to consider the Appellant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, Chap. H.8 as amended (the “Act”). The Tribunal has reviewed the evidence and submissions and makes the following Order:

Pursuant to section 50.2 (5) the Tribunal CONFIRMS THE IMPOUNDMENT. As a result, the Appellant’s motor vehicle will remain detained at the impound facility 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: 2004 FORD SPE (the “vehicle”)

Date of Appeal: October 15, 2014

By way of preliminary matters, the Registrar’s Agent apologized for the late submission of documents and asked that they be accepted. The Appellant acknowledged receipt and agreed to proceed.

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 as provided in sections 50.2(3)(d) of the Act.

However, the Appellant’s evidence at the hearing appeared to include evidence that could be related to a ground of appeal on the basis 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, as long as the Respondent Registrar had a reasonable opportunity to respond. Accordingly, the Tribunal considered the ground that the vehicle was stolen at the time of the impoundment.

Should the Tribunal order the Registrar to release the motor vehicle on the basis that the motor vehicle was stolen at the time the vehicle was detained in order to be 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

A summary of the Appellant’s evidence follows.

The Notice of Appeal filed with the Tribunal was entered as Exhibit #1. In the Notice of Appeal, the Appellant states that loss of the impounded vehicle will result in exceptional hardship. According to the Appellant, he is the sole wage earner for his family and needs the vehicle to be able to work. The Appellant confirms that he is behind in his rent, since being laid off on September 20, 2014; and is “currently collecting the remaining weeks left on …unemployment insurance claim”. The Appellant further states that he needs to keep working to make up the “200 hours” he is short in order to “reopen a new claim.”

During the hearing, the Appellant reiterated that the vehicle is needed in order for him to earn a living and be able to support his family.

In cross-examination, the Appellant asserted that he has not been able to pay his rent and that he rented a vehicle temporarily, in order to not “pass up” the opportunity to work. Nonetheless, he has had to “pass up” some opportunities. According to the Appellant, public transit does not take him to the job sites, and he believes that he lost a prospective long term job because he did not have a vehicle to get to the job site.

The Appellant testified that he has been on Employment Insurance benefits since December 2013, and that his claim ends December 20, 2014; however, he has been able to work from time to time, and needs to keep working to renew his claim.

In response to the Registrar’s Agent questions, the Appellant described the circumstances surrounding the impoundment. The Appellant confirmed that he was aware of his spouse’s suspension, and that his spouse knew where an extra set of keys were. When the Appellant was asked if he ever told his spouse that she could not use his car, he only said that she knew she was not supposed to use it. He testified that he believes she got in the car to get away from an abusive encounter, namely, when his spouse was afraid because of the actions of an off-duty police officer who refused to identify himself at the time. According to the Appellant, his spouse had no intention of stealing the vehicle, she just wanted to get away from the parking lot.

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 Fail To Stop For Police Officer under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until June 6, 2015.

The Registrar did not call any witnesses.

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 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 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 closing, the Appellant asserted that his spouse had no intention to drive, nor did she have permission. According to the Appellant, his spouse was trying to drive away because of the actions of an off-duty police officer who refused to identify himself at the time.

In a 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.

As far as economical hardship, the Registrar’s Agent, contends that the Appellant has been able to rent a vehicle in order to work; furthermore, there is public transportation available in the area. As far as loss of income, the Registrar’s Agent pointed out that that the Appellant’s current employment situation goes back to the past and will continue into the future, regardless of the availability of the vehicle. According to the suggested loss of jobs, the Registrar’s Agent notes that there is no documented proof to substantiate the argument that the Appellant did not get the jobs he applied for, due to the loss of the vehicle.

The Registrar’s Agent submitted that given the fact that the Appellant was not at the scene when his spouse took the car, details of what transpired cannot be considered.

The Tribunal notes that this is an incorrect statement of the law, since the Statutory Powers Procedure Act permits a tribunal to accept hearsay evidence, but it will assess such evidence to determine what weight should be given to it.

The Registrar’s Agent also argued that allowing his spouse access to the keys knowing that she is not eligible to drive does not meet the requirements of due diligence. The Tribunal notes that this was not a ground of appeal argued by the Appellant or raised by the Tribunal.

As for the possible argument that the vehicle was stolen, the Registrar’s Agent quoted from a previous Tribunal decision, 8807 v. Registrar of Motor Vehicles, 2014 CanLII 30050 (ON LAT), suggesting that appeal on the grounds that the vehicle was stolen at the time of impoundment cannot be considered due to the fact that the keys were readily available to the suspended driver.

In conclusion, the Registrar’s Agent suggests that the Appellant’s evidence with respect to the impoundment is hearsay evidence and should be accorded little merit.

The onus is on the Appellant to establish its grounds of appeal as provided in section 50.2(3) of the Act.

Albeit, the Appellant appealed on the grounds of exceptional hardship, during the hearing, two other possible grounds for appeal surfaced: due diligence and stolen vehicle.

Regarding the possibility that since the vehicle was apparently taken without permission, it could be considered stolen, the Tribunal notes that the Appellant left the keys to the vehicle in a place that was readily available to his spouse. There also was no evidence that the Appellant ever explicitly or directly told his spouse that she could not drive his car. Even though the spouse’s use of the car could be seen as an emergency if that evidence were to be accepted, that is not a defence or a ground of appeal. The Registrar urges the Tribunal to conclude that there was acquiescence in the suspended driver using the vehicle, and the Tribunal agrees that the evidence in this case supports this finding. Accordingly, the Tribunal finds that the vehicle was not stolen at the time of impoundment and the ground in Regulation 631/98, 50.2(3)(a), is not met.

Section 10 of Regulation 631/98 provides the criteria to be considered and those not to be considered in determining exceptional hardship:

(1) In determining whether exceptional hardship will result from an order to impound under section 55.1 of the Act, the Tribunal shall consider whether no alternative to the impounded motor vehicle is available…

Only if no alternative transportation exists does the Regulation permit the Tribunal to proceed to consider other enumerated factors. Given the evidence, there is no doubt that the Appellant has been able to rent a car to allow him to continue working on some jobs. The Appellant’s claim that he had to “pass up” certain jobs due to the lack of the vehicle is not plausible. The evidence is that the Appellant was able to rent a vehicle to transport him to the job sites, and there is no reason to suggest that he could not have done the same thing to transport himself to other possible jobs, at least on a temporary basis. As alternative transportation is available to the Appellant, the Tribunal’s enquiry must come to an end and the Appellant’s defence of exceptional hardship under section 50.2(3)(d) of the Act must fail.

DECISION

After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal confirms the impoundment of the Appellant’s motor vehicle, and it will remain at the impound facility for 45 days.

LICENCE APPEAL TRIBUNAL

Dr. Antoine A. Aouad, Member

Released: November 17, 2014