Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2015-03-17
FILE:
9385/MVIA
CASE NAME:
9385 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:
March 4, 2015
REASONS FOR DECISION
A hearing was held on March 4, 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 “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”) on March 6, 2015 to release the motor vehicle, 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: 2008 DODG NIT (the “vehicle”)
Date of Appeal: February 10, 2015
By way of preliminary matters, the Appellant advised the Tribunal that she did not receive the Registrar’s package and asked that the Registrar’s Agent explain the contents, rather than adjourning.
All documents were entered into evidence as exhibits with the consent of both parties.
ISSUES
As set out in the Appellant’s Notice of Appeal (Exhibit #2), 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?
Further, though not specifically stated in the Notice of Appeal, but raised through the evidence, the Tribunal noted at the hearing that it would consider the issue of whether the motor 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.
FACTS
Evidence for the Appellant
The Notice of Appeal filed with the Tribunal was entered as Exhibit #2. In the Notice of Appeal, the Appellant states that she will face exceptional hardship due to the impoundment as the vehicle is needed for work, to transport her children, and for her to attend college. The Appellant claims that there is no public transportation in the early morning when she needs to get to work. Further, she holds two jobs, one of which is to drive her clients to and from their appointments and errands. The Appellant maintains that she will not be able to keep this job without a vehicle.
During the hearing, the Appellant testified that she had moved about two years ago to live with her mother because her mother had cancer and needed ongoing treatments, and her mother needed someone to drive her to her frequent medical appointments because her mother’s driver’s licence had been suspended. The Appellant testified that her mother had never driven the Appellant’s car before, and she confirmed this when asked again by the Tribunal. The Appellant knew about her mother’s loss of her licence, and they both knew that was the reason why the Appellant moved in with her mother – that is, because her mother could not drive.
The Appellant testified that she was in the shower when her mother took the car, and that was a surprise and it was done without her knowledge. Her mother drove the car a short distance to get a coffee, and she got into an accident.
In response to the Registrar’s Agent’s question about whether her mother “stole the car,” the Appellant replied, “Yes!” But the Appellant was adamant that she cannot bring charges against her mother, who is going through enough problems of her own at this time in her life.
During the hearing, the Appellant reiterated that she will face hardship unless the vehicle is returned. She is the single mother of two children. One of her two jobs requires that she transport her clients to and from their appointments. According to the Appellant, the loss of the vehicle has affected her schooling as well as her ability to get to work early in the morning. The Appellant has been using cabs but she finds it’s extraordinarily expensive, and renting a car was also too costly. She has also sometimes been able to use friends to drive her.
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 as owner;
2. 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 regarding the impoundment;
4. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Ability Impaired under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until August 28, 2016.
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.
O. Reg. 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) 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 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, c. 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, 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
On the issue of “stolen”, the Registrar’s Agent argues that the Appellant knew that her mother was under suspension, and she should have taken care in not leaving the keys around. He also raised the possibility that her mother might have taken the keys before and will again.
The Tribunal finds no evidence to support this speculation by the Registrar’s Agent. On the contrary, the Tribunal found the Appellant to be straightforward and forthcoming, responding to all questions without any hesitation or evasiveness. The Appellant was credible, and the Tribunal finds that her vehicle was stolen at the time of impoundment – it had been taken without the Appellant’s permission, and there was no acquiescence or implied consent for her mother to use this vehicle. The Tribunal finds that it was very clear to both the Appellant and her mother why the Appellant had moved to live with her mother, and this was so her mother would not need to drive while suspended. The Appellant was justified in believing that her mother would not drive the vehicle, and in fact, there was no reason to suspect that she would do that.
The Tribunal finds the criteria under section 50.2(3)(a) of the Act are met. As such, it is not necessary to consider if the grounds of exceptional hardship were also proven by the Appellant.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal ordered the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Dr. Antoine A. Aouad, Member
Released: March 17, 2015