Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 9472/MVIA
CASE NAME: 9472 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: 9472
-and-
Respondent: Registrar of Motor Vehicles
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Harinder S. Gahir, Vice-Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Julia Scorcia, Agent
Heard by teleconference: April 16, 2015
REASONS FOR DECISION AND ORDER
A teleconference hearing was held on April 16, 2015, 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”) to release the motor vehicle on April 17, 2015, 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: 2012 Jeep GCK (the “vehicle”)
Date of Appeal: March 26, 2015
ISSUES
As set out in the Appellant’s Notice of Appeal (Exhibit #2), the Appellant 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 will 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.
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?
FACTS
Evidence for the Appellant
A summary of the Appellant’s evidence follows.
The Appellant testified that the vehicle belongs to her daughter, even though it is registered in the Appellant’s name. The Appellant indicated that her daughter and the suspended driver are in a common-law relationship and have been living together for the last three years. The Appellant lives a ten-minute drive away from them. The Appellant stated that it was her daughter’s birthday on the day of the impoundment. The Appellant indicated that her daughter was asleep when the suspended driver took the vehicle.
The suspended driver of the vehicle wanted to surprise the Appellant’s daughter and drove the vehicle for the purpose of buying eggs for a surprise birthday breakfast that he wanted to make for her.
The Appellant testified that the impoundment of the vehicle has caused exceptional hardship on the family. Her daughter is employed full time as a nurse at a hospital which is located approximately a 30 to 45 minute walk away. She works twelve hour shifts and must drop her child off to daycare. There are other alternative means of transportation, namely one taxi with limited hours of operation, and the possibility of renting a vehicle.
The Appellant testified that as a result of the impoundment of the vehicle, her daughter has skipped work two times, as she had no means of getting to work for 7:00 a.m. shifts.
The Appellant indicated that although her daughter is aware that her common-law partner has a life suspension from driving, the Appellant herself was not aware of this fact.
Evidence for the Registrar
The Registrar tendered the following documents:
A 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;
A copy of the notice forwarded to the Registrar regarding the impoundment;
A copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of Fail to Remain at Accident under the Criminal Code of Canada pursuant to which the driver’s licence of the driver is under suspension 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
The Appellant testified that the loss of the vehicle is causing her daughter exceptional hardship due to the fact that there is no other vehicle available to her daughter. Her daughter works as a nurse in a hospital that is a 30 to 45 minute walk from her home. She further testified that the community where her daughter lives is very small and does not have public transportation and only has one taxi company. The Appellant further testified that there is a car rental company; however, it is approximately a two hour drive away from her residence. The Appellant feels that due to the lack of alternate means of transportation, the impoundment has resulted in exceptional hardship for the Appellant’s daughter.
Dealing first with the ground of appeal under section 50.2(3)(d) of the Act, the Tribunal finds that the Appellant’s circumstances and those of her daughter do not meet the definition of exceptional hardship within the meaning of section 10 of O. Reg. 631/98. The Tribunal agrees with the Registrar’s submissions that the Appellant’s daughter is, although with some inconvenience, able to walk to work or able to rent a vehicle. Although the Appellant’s daughter has missed two shifts from work, she was apparently able to call in sick and has not suffered any economic loss. The Tribunal finds that the Appellant does not meet the criteria set out in the regulation.
Therefore, the Tribunal denies the Appellant’s appeal under the ground of exceptional hardship.
As noted above, during her testimony, the Appellant explained that on the date, and at the time, of the impoundment her daughter was asleep and it was her birthday. The Appellant’s daughter’s common-law partner, who is the suspended driver, drove the vehicle, without the knowledge of her daughter. The common-law partner drove the vehicle to buy eggs for a surprise birthday breakfast that he wanted to make for the Appellant’s daughter. The Tribunal has no reason to disbelieve the evidence of the Appellant on this point. The Registrar did not present any evidence to contradict the testimony of the Appellant.
The meaning of “stolen” is not defined in the Act. However, as noted above, the Divisional Court decision in Marshall is helpful in determining whether or not the vehicle can be considered “stolen” in the present circumstances. In particular, the Tribunal heeds reference to the Court’s statement:
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.
Based on the evidence before it, the Tribunal finds that neither the Appellant, nor her daughter was aware that the vehicle was taken and driven by the suspended driver at the time of the impoundment. The Appellant’s daughter was asleep when the vehicle was taken. There was no explicit consent. There was no evidence that the suspended driver had taken the vehicle previously. Nor is there evidence of acquiescence or implied consent. Therefore, on a balance of probabilities, the Tribunal finds that the vehicle was stolen in accordance with subsection 50.2(3)(a) of the Act.
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
Harinder S. Gahir, Vice-Chair
Released: May 19, 2015