Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2015-05-05
FILE:
9471/MVIA
CASE NAME:
9471 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
ADJUDICATORS:
Gary Yee, Associate Chair
Eleanor White, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Steve Grootenboer, Agent
Heard by teleconference:
April 16, 2015
REASONS FOR DECISION
A hearing was held on April 16, 2015, by teleconference, to consider the Appellant’s appeal under section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”).
By Order dated April 16, 2015, the Tribunal ORDERED THE REGISTRAR TO RELEASE THE VEHICLE to the Appellant.
BACKGROUND
A motor vehicle was impounded under section 55.1 of the Act, and the impoundment was appealed by the Appellant, who is the registered owner. The motor vehicle and date of appeal in this matter are as follows:
Motor Vehicle: 2004 Ford MCS (the “vehicle”)
Date of Appeal: March 3, 2015
The Appellant and her business and life partner MG accepted a $5,000 deposit from TF towards the intended purchase of the vehicle, a 2004 Ford Mustang. The vehicle was towed to TF’s storage facility, un-insured and bearing no plates. The ownership was retained by the Appellant, and an oral agreement was struck for the final price. The Appellant also directed TF that the vehicle could be stored but was not to be driven. TF was stopped by police while he was driving the vehicle on March 22, 2015. His licence was under suspension and the vehicle was seized and impounded.
ISSUES
The Appellant’s grounds for appeal were clearly stated: the vehicle was driven without the permission of the owner. The sole issue in this appeal is whether the vehicle was “stolen,” as provided in sections 50.2(3)(a) of the Act.
FACTS
Evidence for the Applicant
The Appellant and MG both testified. MG was the main person involved in the proposed sale of the vehicle. Both the Appellant and MG were credible and their testimony was not challenged.
The Appellant and MG work together in their car restoration business.. The Appellant is responsible for the bookkeeping, and MG performs the repair and restoration work on the vehicles and handles much of the business.
The Appellant had gone to Texas to pick up this 2004 Mustang Cobra. The vehicle was being stored outside as their garage was full. They were considering insuring the vehicle in the spring for their personal use.
MG became acquainted with TF over the previous year as the latter had brought in various cars for repair or restoration. TF had arrived regularly at the shop to follow the progress of whatever work was being done on one of his vehicles. He would arrive driving one of several cars or motorcycles. On one occasion, he provided transportation for MG to pick up a required vehicle part. MG stated that he had no reason to question the status of TF’s driver’s licence. Their business dealings had been successful, with work completed and bills paid. TF was at the Appellant’s home to give an estimate on some renovation work on their children’s rooms. While he was there, he saw the Mustang and he wanted to buy it. An oral agreement was reached to sell the vehicle for $22,000. One week later, TF provided a deposit cheque for $5,000.
TF wanted to store the vehicle at his place so that it would not have to stay outside in the snow – this is a summer vehicle. The Appellant agreed, and the vehicle was towed to TF’s garage. Both the Appellant and MG testified that TF agreed with both of them that the vehicle could not be driven, because the Appellant retained the ownership, the vehicle had no plates and it was uninsured. The Appellant specifically told TF to make sure that no one drove the car. The Appellant testified that TF said that no one will.
The understanding was that when TF paid the balance of the price, he could proceed with preparing the vehicle for ownership and driving. Other than a notation on the deposit cheque, there was no written agreement for either the purchase of the vehicle or the conditions applied to the storage or usage of the vehicle.
The vehicle was stored with TF for several months before it was impounded on March 22, 2015. On the night that he was stopped, TF had, according to MG, taken the plates from another vehicle and put them on the Mustang. The records from the Ministry show that TF has a lengthy record of driving-related convictions and suspensions. According to MG, TF is still in jail.
The Appellant stated that she spoke to the police and told them that the vehicle was stolen. There was no information about whether TF was charged with stealing the vehicle. MG candidly testified that a police officer had told him that it may be a little extreme to report the vehicle as stolen.
On cross-examination, the Registrar’s representative focused on the issue of due diligence, and submitted that the Appellant’s appeal should fail because she had not thought to check TF’s driver’s licence. The Tribunal finds that this is not a relevant issue when the evidence points to the vehicle having been stolen. The Appellant and MG both testified that they did not think to ask to see TF’s licence because they had no reason to suspect that he was not properly licensed and also because they did not consent to TF driving this vehicle.
Evidence for the Registrar
The documents tendered by the Registrar and admitted into the record 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; and
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 August 26, 2018.
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.
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 Tribunal notes that the meaning of “stolen” is not defined in the Highway Traffic Act. The Criminal Code of Canada (the "Code"), R.S.C. 1985, Chap. C-46, provides some guidance, but the word “stolen” must be interpreted in the context of the Highway Traffic Act, and in the context of these impoundment provisions.
Section 1 of the Code states that “steal” means to commit theft. Section 322(1) of the Code defines “theft” as follows:
- (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.
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.”
The burden of proof is on the Appellant to satisfy the Tribunal that at least one of the grounds of appeal has been proven on a balance of probabilities.
FACTS AND ANALYSIS
The Tribunal finds that the Appellant’s vehicle was stolen within the meaning of the Act. The suspended driver did not have the owner’s permission to drive the vehicle. This is supported by the Appellant’s and MG’s credible evidence that TF was specifically told that he could not drive this vehicle, and this is also strongly supported by the fact that this vehicle was uninsured and also clearly un-plated.
Despite the Registrar’s representative’s submission that the Appellant was careless in giving possession of her vehicle to TF, the Tribunal finds that the Appellant had a reasonable expectation that TF would not be driving the vehicle until the sale was completed and the ownership was transferred.
The Registrar’s representative also submitted that the vehicle was not stolen because the Appellant had given possession of it to TF, and TF’s violation of their oral agreement did not provide a valid ground for appeal. The Tribunal rejects this submission. The Appellant gave possession of this vehicle to the driver on the basis of a clear stated condition that it was not to be driven. When that condition was broken, whether it was oral or written, it means that the vehicle was being driven without the owner’s consent. This meets the definition of “stolen” under this Act.
The Registrar’s representative also submitted that the fact that the condition was not in writing meant that there was no way to determine if the Appellant or MG were telling the truth. The Tribunal also rejects this simplistic submission. Findings of fact do not require documentary evidence. The credible and reliable testimony of witnesses is sufficient for a court or tribunal to decide the facts.
The facts in this appeal are clear enough to support a finding that this vehicle was “stolen” within the meaning of section 50.2(3)(a) of the Act.
DECISION
After considering the evidence and the law, under the authority of section 50.2(5) of the Act, the Tribunal ordered the Respondent Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Gary Yee, Associate Chair, Presiding
Eleanor White, Member
Released: May 5, 2015