Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 9591/MVIA
CASE NAME: 9591 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: 9591
-and-
Respondent: Registrar of Motor Vehicles
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: June 16, 2015
REASONS FOR DECISION
A hearing was held on June 16, 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: 2005, MAZD, M6S (the “vehicle”)
Date of Appeal: May 28, 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, and the parties were given an opportunity at the hearing to provide evidence and submissions about this ground.
FACTS
Evidence for the Appellant
A summary of the Appellant’s evidence follows.
The Appellant is a single mother of three children, ages 24, 20 and 17 years. She is employed full time and resides with her two youngest children who are both students. The suspended driver at the time the vehicle was impounded is her 24 year old son who was living with her and has since moved away to live on his own.
The Appellant stated that she was fully aware of her son’s licence suspension that occurred in October, 2014. At the time she had set serious ground rules with her son and had specifically warned him not to drive the vehicle under any circumstance. She removed the vehicle keys from a key rack at the front door and kept them in her purse at all times. She took measures to hide the spare key.
The vehicle was impounded at 1:35 a.m. on a Sunday morning. The Appellant was sleeping and the vehicle was in her driveway at the time she went to bed. She learned of the vehicle impoundment in the morning when her son told her of the incident. He had found the Appellant’s purse, took the keys for the vehicle and drove to a local gas station to buy some cigarettes and drinks. On his way home he was stopped by the police.
The Appellant stressed that she was very upset with her son. She found it disturbing that despite her warnings, her son took the vehicle without her permission. She stressed that he knew fully well he was not to use her vehicle. He has since apologized for his actions.
The Appellant stated that the loss of the vehicle is causing her exceptional hardship. Her 20 year old son has Type 1 diabetes. He has had this condition for 17 years and periodically suffers severe hypoglycemic episodes that require urgent treatment at a hospital. Although ambulance services are available in her area, she stated that, due to unfavorable experiences in the past with ambulance services, she prefers to rely on her own transportation to bring him to emergency care. Since the vehicle was impounded, her son has missed one appointment at a special clinic that monitors his condition.
The Appellant stated that for the first week after the vehicle impoundment, she relied on a co-worker for daily transportation to attend work which is some distance away from her residence. She was unable to continue this arrangement as the co-worker’s schedule was not convenient. She has since rented a vehicle to drive to work and have at her disposal in the event that her son incurs a medical emergency.
In cross-examination, the Appellant was asked as to whether she contacted the police to report the vehicle stolen by the suspended driver. She stated that her son is really trying to get his adult life together. He is working and has started to pay her small amounts of money towards the additional costs resulting from the impoundment. She did not believe that it would be in his best interest to have him charged in this case.
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 and the driver at the time of the impoundment, as owners;
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 on October 21, 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 October 21, 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:
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 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, 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, Chap. C-46 provides guidance.
Section 1 of the Code states:
“steal” means to commit theft…
Section 322(1) of the Code states:
- (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.
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 reiterated that the vehicle was taken without her consent. She is experiencing undue hardship as she has been required to rent a vehicle to attend work and for a potential medical emergency with her son.
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 the opinion of the Registrar, the vehicle was borrowed and there is no proof that the driver intended to deprive the Appellant of her vehicle.
In addressing the issue of hardship, the Registrar’s Agent stated that the Appellant has rented a vehicle and therefore has an alternative to the impounded vehicle.
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. There have been a long line of Tribunal cases, as well as the often-cited Marshall court decision, that are clearly against the Ministry’s position in these cases. The Ministry has no legal support when it argues that “borrowing” a vehicle temporarily does not mean it is stolen, and that criminal charges have to be pursued before a vehicle can be considered stolen.
The Appellant testified in a straightforward and forthcoming manner. She 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 knowledge and consent. The Tribunal is satisfied that he obtained the keys by underhanded means when the Appellant was sleeping, and this use of the vehicle was not permitted by the Appellant, because she had expressly prohibited this son from driving her vehicle. The concept of “stolen” in these impoundment cases must be considered from the perspective of the owner, because this legislation seeks to impose consequences on owners whose vehicles are used by suspended drivers. In the circumstances of this case, it is very clear that the vehicle must be considered as stolen. 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 be necessary to 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: June 17, 2015