Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9383/MVIA
CASE NAME: 9383 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
9383 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”). The Tribunal has reviewed the evidence and submissions and makes the following Order.
Pursuant to section 50.2(5) of the Act, the Tribunal CONFIRMS THE IMPOUNDMENT. As a result, the Appellant’s motor vehicle will remain detained at the impoundment 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: 2008 FORD CVP (the “vehicle”)
Date of Appeal: February 12, 2015
By way of preliminary matters, the Appellant requested permission to amend the Notice of Appeal to include the ground of “stolen” as a basis of appeal to which the Registrar’s Agent raised no objections. The amended Notice of Appeal was accepted by the Tribunal.
All documents were entered into evidence as exhibits with the consent of both parties.
ISSUES
Therefore, as set out in the Appellant’s request for hearing (Exhibit #2), the owner appeals on the basis that the motor vehicle was stolen at the time it was detained in order to be impounded and that the loss of the vehicle will result in exceptional hardship, all as provided in sections 50.2(3)(a) and (d) of the Act.
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 #2. In the Notice of Appeal, the Appellant states that she gave the keys to the suspended driver as he was fixing her car. According to the Appellant, the vehicle is needed for work. The Appellant expressed her concern that she has health issues which are also causing her to miss work, and the loss of the vehicle is preventing her from attending medical appointments.
With respect to the vehicle being stolen, the Appellant explains that she did not originally mention the grounds that the vehicle was stolen as she thought that she was required to lay charges. Nonetheless, she argued that she was sleeping at the time and unaware that the suspended driver had taken the vehicle.
During the hearing, the Appellant reiterated her comments in her Notice of Appeal, emphasizing that she was sleeping at the time the vehicle was taken. The Appellant testified that laying charges against the suspended driver would jeopardize their relationship. She was aware of the suspended driver’s past, and had no reason to believe that he would take the car, or jeopardize her life.
The Appellant attested that she has been diagnosed with a condition that has caused her to miss work. Having missed work, the Appellant stated that she has had a tough year financially. Taking cabs has been an extra expenditure which the Appellant maintains that she cannot afford.
The vehicle is needed for the Appellant to get to work and to her medical appointments. According to the Appellant, it is uncomfortable to sit on a bus for an hour and hard to walk for more than five minutes. Further, the Appellant’s daughter also needs medical attention which she has been unable to obtain.
The Appellant explained that she used to leave the key in a dish in a kitchen so that the suspended driver could use it in the driveway while he was fixing the car, and would take them away once he was finished
In cross-examination, the Appellant confirmed that she has been working for the Ministry of Transportation for the past 15 years.
After the impoundment, the Appellant was driven to work for the first week, took a cab for 4 or 5 days and used vacation days which are partially paid because of health issues.
The Registrar’s Agent questioned the Appellant as to how the suspended driver obtained the keys on the day the vehicle was impounded. The Appellant replied that she might have left the keys in the dish the night before. The Appellant has not trusted the suspended driver for the last six months, nor has her daughter trusted him. She does not believe that the suspended driver had taken the car on any other occasion.
The Appellant is in the process of selling another vehicle, which is sitting in her driveway.
The Registrar’s Agent questioned the Appellant as to whether she had moved a second owned vehicle, a Ford Expedition, from her driveway, or had it towed. The Appellant, in response, denied this and confirmed that the vehicle is not driveable.
According to the Appellant, there are several vehicles in her driveway which do not belong to her which the suspended driver is in the process of fixing.
The Registrar’s Agent further questioned the Appellant as to whether she had renewed any permits with the Ministry of Transportation, which the Appellant denied.
By way of clarification, the Tribunal asked the Appellant about the specialist’s appointment which she has scheduled for the week after the hearing. The Appellant confirmed that the appointment is on the other side of the city.
Evidence for the Respondent.
The Registrar’s Agent called the police officer involved in this matter as a witness.
The PC Morrissey testified that when he advised the Appellant about the impoundment she made no enquiries about the possibility of laying charges. The Constable testified that there were a number of vehicles in the driveway. He noticed that the Ford Expedition previously in the driveway was not there on other subsequent occasions when he passed by.
In cross-examination, the Constable affirmed that the Appellant looked quite upset when told the vehicle had been impounded and looked as if she had just woken.
In addition to PC Morrissey’s evidence, the following 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 regarding the impoundment;
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 suspended for life.
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
In closing, the Appellant emphasized that the appeal is not about inconvenience, it is about her ability to get around. The Appellant believes that the suspended driver took advantage of her due to her health situation and asked the Tribunal to consider her health as well.
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 not only suspended, but the driver at the time of the impoundment has never been licenced.
The Registrar’s Agent maintains that the Appellant is not credible in that she originally appealed on the grounds of hardship and then focused her appeal on the fact that she was sleeping when the vehicle was taken.
Further, the Registrar’s Agent submitted that the police officer testified that he recalled seeing the Ford Expedition in the driveway when he notified the Appellant of the impoundment, but that it was not there on the following days
The Registrar’s Agent submitted that although the Appellant denied renewing a vehicle permit recently, the documentary evidence is clear that she did in fact renew the permit for the Ford on February 2nd of this year.
As far as exceptional hardship, alluded to by the Appellant, the Registrar’s Agent, referred to Ontario Regulation 631/98 pointing out that the appeal does not meet the criteria as the Appellant has alternate vehicles.
With respect to health matters, the Registrar’s Agent contends that it is inconsistent that the Appellant has been driven and taking cabs to get to work and cannot take cabs to her doctor.
Given the issues of credibility, and the fact that the evidence indicates that the Appellant leaves the keys with the suspended driver, the Registrar’s Agent submits that the possibility arises that the suspended driver might have driven the vehicle on other occasions.
The Tribunal will first assess the ground for appeal that the vehicle was stolen at the time of the impoundment. Although the Tribunal generally agrees that in certain circumstances where a vehicle is taken without the knowledge and consent of the owner, it may be deemed stolen, this is not a situation that merits that consideration. The Tribunal accepts that fact that the Appellant might have been sleeping when the vehicle was taken. Nonetheless, by her own admission, knowing the suspended driver was not allowed to drive, the Appellant consistently left the keys with him, presumably so that he could perform mechanical work on her vehicle. Further, by the Appellant’s own admission she has not trusted the suspended driver for a number of months. Thus, the Tribunal has difficulty understanding why she would continue to leave the keys with him if she was not allowing him to drive her vehicle.. Further, though the Appellant stated in her evidence that she took the keys from the kitchen dish once the suspended driver had used them, she also admitted that on the day of the impoundment she must have left the keys in the dish from the night before.
In light of this testimony, the Tribunal does not find the Appellant’s evidence persuasive to support a conclusion that the vehicle was ‘stolen’ or taken without permission. The Tribunal therefore. finds that the ground that the vehicle was stolen at the time of impoundment under s. 50.2(3)(a) has not been met.
The Tribunal will not speculate as to what happened to the Ford Expedition, or whether its permit was recently renewed
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 alternative transportation is available to the Appellant. There is public transportation available to the Appellant and she has been able to use cabs. Further, the Tribunal notes that her specialist’s office is in the same town. The Appellant did assert that her daughter needs medical attention which she has not been able to obtain, but has not indicated why, nor has she indicated whether or how this might result from the impoundment of the vehicle.
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.
The Tribunal is precluded from considering the costs of the impoundment, however, for the Appellant’s information, the Tribunal points out that section 55.1(27), states that:
The owner of a motor vehicle that is impounded under this section may bring an action against the driver of the motor vehicle at the time the motor vehicle was detained under this section to recover any costs or other losses incurred by the owner in connection with the impoundment.
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: March 16, 2015