9387 v. Registrar of Motor Vehicles, 2015 CanLII 20238

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-03-06

FILE:

9387/MVIA

CASE NAME:

9387 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:

Geneviève Blais, Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Sonia De Santis, Agent

Heard by teleconference:

March 5, 2015

REASONS FOR DECISION

A hearing was held on March 5, 2015, 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 orders the Registrar to release the motor vehicle pursuant to section 55.1(3) of the HTA.

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: 2001, SUBA, FOR (the “vehicle”)

Date of Appeal: February 13, 2015

ISSUES

As set out in the Appellant’s request for hearing (Exhibit #1), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in section 50.2(3)(d) of the Act.

Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?

The evidence at the hearing made it clear that the Appellant was also asserting 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 of Appeal. The Tribunal has therefore considered whether or not the ground that the vehicle was stolen applies in this case.

FACTS

Evidence for the Appellant

A summary of the Appellant’s evidence follows.

The Appellant is a single mother of a three year old child and a seven month old baby. She resides alone and receives social assistance. The suspended driver at the time the vehicle was impounded is the father of her two children. The Appellant and the suspended driver lived together with the first child, separated for some time and re-united briefly. At the time of the impoundment, they had lived separate and apart for several months.

On the evening the vehicle was impounded, the suspended driver was at the Appellant’s apartment for a few hours around supper time, to visit and play with the children. After he left in the early evening, she put the children to bed and she retired for the night. The following morning, the Appellant received a text message from the suspended driver telling her of the impoundment of the vehicle. Unaware that her vehicle had been taken by the suspended driver, the Appellant was very upset and arranged to briefly meet to get the copy of the Notice of Impoundment. Due to their strained relationship and how upset she was, she spent little time getting an explanation from him as to why he took the vehicle without her permission. She stated that the police did not contact her at any time concerning the vehicle impoundment.

The Appellant testified that she has very little communication with the suspended driver. Her contact with him is only when he visits the children occasionally and for short periods of time. The Appellant keeps the vehicle keys in a drawer where she also keeps crayons and paper for her child. She believes that in looking for crayons with the child, the suspended driver found the vehicle keys in the drawer, and he took them when she was out of the room with the baby, knowing fully well that she would not give him permission to use her vehicle. She stated that under no circumstance would she ever allow him to borrow her vehicle.

The Appellant stated that the loss of the vehicle is causing her exceptional hardship. Her three year old child suffers from a skin disease and is over active due to the condition. She is required to attend weekly medical appointments for close monitoring of the condition which is under treatment. The renewal of medication cannot occur without a medical visit. Since the vehicle was impounded she has cancelled the appointments and the medication for her child is running out.

The Appellant stated that she has not been able to take public transit as she does not have a double stroller to transport the two children. She has no family to assist her with transportation. Her finances are very limited and she finds the cost of a taxi prohibitive. The car seats for the children remain in the impounded vehicle. She has not spoken to her social assistance worker for additional funds for transportation.

Prior to the impoundment and due to her strained financial situation, the Appellant began searching for employment. A few weeks ago she secured a part time job. It is being held for her to start as soon as possible. She has made arrangements with the paternal grandmother to care for her children while she works. She requires her vehicle to drop off the children and drive an additional distance to her employment.

In cross-examination, the Appellant was asked as to whether she contacted the police to report the vehicle stolen by the suspended driver. The Appellant indicated that she has never been contacted by the police concerning the impoundment. She was adamant that the vehicle was taken without her permission. She was not aware she would have to lay charges herself and assumed that the police would take over. Due to the predicament and hardship resulting from the impoundment, the Appellant stated she will no longer allow the suspended driver to visit her children.

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:

1. Copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle is registered in the name of the Appellant and the driver at the time of the impoundment, as owners;

2. 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;

3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;

4. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted on May 12, 2014, of Impaired Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until May 12, 2015.

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:

1. 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.

2. 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.

3. 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 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, 3^rd 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:

322. (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, 3^rd 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.

Second, the section provides that the Tribunal may not, except in certain circumstances, consider certain factors:

• 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 if the owner demonstrates that

• 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 also 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 requested to have her car returned to attend medical appointments for her child and allow her to start part time employment to improve her current living conditions.

In her summary statements, the agent for the Registrar asked the Tribunal to confirm the decision of the Registrar. She submitted that since the Appellant failed to lay theft charges against the suspended driver, the vehicle cannot be considered as stolen, as set out in subsection 50.2(3)(d) of the Act.

In addressing the issue of hardship, the Registrar’s Agent stated that the Appellant does have public transportation in her area and has chosen not to avail herself of this alternative.

The Tribunal notes that it is not necessary for criminal charges to be laid in order to prove that a vehicle was stolen within the meaning of the impoundment provisions in the Highway Traffic Act. The Appellant testified in a straightforward and forthcoming manner and responded to all questions without any hesitation or evasiveness. The Tribunal finds her evidence to be credible.

The Tribunal concludes that the vehicle was taken by the suspended driver without the Appellant’s permission. The Tribunal is satisfied that he obtained the keys by underhanded means and that the vehicle must be considered as stolen, from the perspective of the owner. Therefore, the appeal succeeds on the ground of stolen as set out in subsection 50.2(3)(d) of the Act.

As the Tribunal finds that the vehicle was stolen at the time of the impoundment, it will not consider the defence 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

_________________________

Geneviève Blais, Member

Released: March 6, 2015