Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9490/MVIA
CASE NAME: 9490 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: Simon Dann, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sonia de Santis, Agent
Heard by teleconference: April 28, 2015
REASONS FOR DECISION
A hearing was held on April 28, 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 RULED TO SET ASIDE THE IMPOUNDMENT imposed by the Registrar of Motor Vehicles (the “Registrar”) 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: 2008, Dodge AXT (the “vehicle”)
Date of Appeal: February 11, 2015
ISSUES
Based on the Notice of Appeal, the issue in this appeal was initially whether the loss of the vehicle would result in exceptional hardship as provided in section 50.2(3)(d) of the Act. Through the Appellant’s testimony at the hearing, it became evident that the ground of stolen, as provided in section 50.2(3)(a) of the Act must also be considered as an issue in this appeal.
Therefore, should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship and/or that it was stolen?
FACTS
Evidence for the Appellant
A summary of the Appellant’s evidence follows.
In the Notice of appeal, the Appellant briefly stated she is a single mother and has limited income. She lives in low-income housing but does not receive any welfare or other social assistance benefits. Her employment requires the use of the vehicle and there is no access to public transit at her place of employment.
The Appellant uses the vehicle for work deliveries and to pick up her children from day care, where the children go after their school day ends. She is fearful of losing her employment if she loses her vehicle. She is trying to make ends meet and does not know she will be able to afford the costs related to the impoundment.
During her testimony and cross-examination, it became evident that she has been able to find alternative transportation during the impoundment period (which started April 2, 2015 and concludes on May 17, 2015) the help of a co-worker friend and borrowed money from another friend for a rental vehicle.
The Appellant stated that the cost of the rental, which is to be returned today, was $500. She said she does not know how she will pay back the loan because if she does not get her vehicle back, she will have to rent the vehicle again.
The Appellant said her employer does not know her vehicle has been impounded because she is afraid she might lose her job if they knew. She works for a contractor and her job requires her to make deliveries and complete office errands. To date, she has only missed two days of work - the first being when the vehicle was impounded and she immediately left work to get to the impound site. The second is today so that she could attend this appeal hearing.
There have not been any impacts on her children's schooling and while the Appellant testified that she has had to increase her counselling appointments (for depression and stress), as well as increase her medication, she acknowledged her situation has been accommodated. She did not cite any missed medical appointments or any threat to the health of either herself or her children as a result of not having her vehicle.
The Appellant stated that the driver ("MG") of the vehicle at the time of the impoundment lives in Kitchener and he is also her spouse. She was aware that MG was not supposed to be driving her vehicle and he did not have her permission to use it at any time. She always provided him with transportation when needed and she does not know how he got to her home in Brantford.
The Appellant acknowledged she had a spare key at home but it was hidden in an envelope in the bottom drawer of her nightstand. The day of the impoundment, she was unable to start her vehicle and called a co-worker to help her get to work. She later called MG to advise him that she would not be able to pick him up and take him around for errands in preparation for the upcoming holiday weekend. She only learned of the impoundment when MG called her to say he had been stopped for speeding. She said she had no idea how he found her spare key, how he travelled to her home or how he started the vehicle.
When questioned about the ground of stolen, the Appellant's testimony confirmed that MG did not have permission to take the vehicle but stated she did not want to see him charged for theft or go to jail on that charge.
The Appellant was advised she could pursue MG for payments to cover the cost of the impoundment. She replied that he might only be able to help "minimally".
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 Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of driving while disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until October 29, 2015.
In closing, the Registrar's Agent asked the Tribunal to confirm the impoundment, submitting that the Appellant's appeal failed because the Appellant had alternative transportation and had not suffered any other impacts. She did not believe the vehicle was stolen as the driver was apologetic and would likely have returned the vehicle after completing his purpose in taking it.
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 section 50.2(3)(d).
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.
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 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.
On the second issue, the ground of stolen, it is noted that “stolen” is not defined in the Act. For the purposes of the Act, “stolen” has been interpreted to mean that the vehicle was taken, temporarily or permanently, without the owner’s consent.
APPLICATION OF LAW TO FACTS
The Appellant has, on a balance of probabilities, failed to prove her case for exceptional hardship. Section 10 of Ont. Reg. 631/98 sets out very detailed and strict criteria that the Tribunal must apply when deciding whether there is exceptional hardship. However, on the point of stolen, the Tribunal finds that, on a balance of probabilities, the Appellant has proven her case.
Regarding exceptional hardship, an Appellant must first establish that no alternative exists for the impounded vehicle. The Appellant in this instance has failed to do this as she acknowledged she has been able to obtain rides with a co-worker and also rented a vehicle. The Appellant confirmed she has been accommodated for her counselling appointments and that her children have not missed school or medical appointments. There is no evidence to support a finding of any threat to the health and safety of anyone dependent on the impounded vehicle. Therefore the appeal on the ground of exceptional hardship is found to fail.
On the ground of “stolen”, the Tribunal rejects the Respondent representative’s submission that the vehicle was not stolen because the driver was apologetic and would likely have returned the vehicle after completing his purpose in taking it. There is a consistent line of Tribunal cases that refer to and follow the Divisional Court decision in Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745, which states:
"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."
The question for the Tribunal in this matter is whether the suspended driver took the owner’s vehicle without consent. Consent may be explicit, or it may be implied from the circumstances. The use, or deprivation, of the vehicle may be permanent or temporary.
It is clear from the Appellant's testimony that the vehicle was taken without her consent. She was credible in her statements regarding her situation with her spouse (who she clearly stated lived apart from her) and his lack of permission to use her vehicle, as well as her hiding of the keys. Whether her spouse took the vehicle temporarily or permanently, the owner was deprived of it. There was no evidence of acquiescence or implied consent. Therefore, and on a balance of probabilities, the Tribunal finds the Appellant's vehicle to have been "stolen" within the context of this impoundment legislation.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal sets aside the impoundment of the Applicant’s motor vehicle and orders the Registrar to release the vehicle.
LICENCE APPEAL TRIBUNAL
Simon Dann, Member
RELEASED: May 1, 2015