Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 9693/MVIA
CASE NAME: 9693 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: 9693
-and-
Respondent: Registrar of Motor Vehicles
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: August 11, 2015
REASONS FOR DECISION
A hearing was held on August 11, 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”).
Pursuant to section 50.2 (5) the Tribunal ORDERS THE REGISTRAR TO RELEASE THE VEHICLE.
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: 2009 TOYT CBA (the “vehicle”)
Date of Appeal: July 21, 2015
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #2), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in sections 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?
In addition, some of the evidence before the Tribunal raised the possible argument that this vehicle may be considered under the Act as having been stolen by the suspended driver. In these appeals, the Tribunal may consider grounds for relief without the Appellant having specified those grounds in the Notice of Appeal, as long as the Respondent is provided with an adequate opportunity to respond. The Tribunal has therefore also considered the following ground.
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
The Appellant testified that her birthday was the day before her vehicle was impounded. She attended her birthday party but, having had too much to drink, went to the passenger seat of her vehicle and “passed out”. In the early morning, her ex-boyfriend, the suspended driver in this case, arrived at the party, noticed she was sleeping in the vehicle and “took it upon himself” to drive her home. When the vehicle was later pulled over for speeding, it was impounded. As the vehicle was being pulled over by police, the Appellant was woken up by friends who were also passengers in the vehicle. When asked how she made it home, the Appellant said that the impoundment took place close to her home and she had called her mother who arrived at the scene with her aunt to assist her.
The Appellant has been charged with impaired driving in the past. Consequently, she puts her keys under one of the tires on her vehicle because she understands that she could be charged again, even if she were found by police in the passenger seat with the car keys in her possession. Her ex-boyfriend was aware that this was her practice.
The Appellant called the suspended driver the day after the impoundment to ask him what he had done. He told her he knew she had to work the next day and took the vehicle to drive her home so she could sleep in a proper bed. The Appellant and the suspended driver ended up in an argument but, because the driver has a history of violence, she did not pursue the matter. She stated she does not know whether the suspended driver’s intent was to assist her or whether he would have driven her home and then used her vehicle for his own purposes. She noted that he had taken her aunt’s vehicle a few weeks earlier after lying to her aunt about the status of his licence. And she testified that she has had him charged with stealing her vehicle in the past. When asked by the Registrar’s Agent if she feels her vehicle was stolen the evening of the impoundment, the Appellant responded yes because she did not give the suspended driver her consent to use it. When asked why she did not charge him, she stated that “everything happened so fast”, she was still intoxicated and it did not occur to her.
The Appellant is a single mother with a five year old child. She is employed on a full time basis, working Monday to Friday at a location which is walking distance from her home. However, because she is not in a good financial position, she also has a second job working weekends as a server at an establishment located in another municipality which is approximately 50 kilometres from her home. The Appellant earns approximately $48,000 annually but currently owes approximately $1,600 in back rent. She receives no child support.
The Appellant normally uses her vehicle to drive her son to day camp, to drive to her jobs and for errands. There is no public transportation in the municipality in which the Appellant lives. She testified that she cannot afford to rent a vehicle or to take taxis. During the week, the Appellant’s child attends a day camp located approximately 3 to 4 kilometres from the Appellant’s home. Since the impoundment, she has generally walked her child to the day camp and then walked to her work. She testified that it is an hour’s walk to the day camp with her five year old. They have bicycled on occasion but she is reluctant to do this because the child does not have a proper bike helmet. The Appellant has been able to get some rides to her weekend job but has also had to hitchhike. On weekends, she relies on family members or the child’s father, who she testified is not reliable, who come to her home to take care of her child while she works. For groceries, the Appellant has been able to use a convenience store located near her weekday workplace.
The Appellant has no family living nearby who are able to assist her. Her mother, who has a vehicle, does not live in the same municipality; moreover, her mother, who has the summer as holidays, is currently away and has taken her vehicle with her.
The Appellant missed work the day following the impoundment and has missed an occasional day since. She has taken her child to work with her twice when he could not attend day camp because she could not find anyone to stay at her home with him.
Approximately one week before this hearing, both the Appellant and her child were ill with what the Appellant testified were flu-like symptoms. The Appellant indicated that she considered calling 911 but decided that it was not an emergency. Consequently, she and her child bicycled to the hospital, to the pharmacy to get prescriptions filled, and then back home. There have been no subsequent medical appointments.
The Appellant also told the Tribunal that her father has regular medical appointments in a major municipality some distance from his home. An organization normally makes arrangements for him to be driven there. However, because of difficulty with these arrangements, the Appellant was asked if she could drive him. The Appellant indicated that she would be willing to do so but could not while her vehicle was impounded. Her father has not missed any scheduled appointments.
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 March 24, 2016.
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), but as noted, the Tribunal is also considering section 50.2(3)(a).
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.
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 Tribunal notes that while the Appellant, in her Notice of Appeal, indicated that the loss of her vehicle was causing her exceptional hardship, her testimony also supports consideration of the ground that her vehicle was stolen at the time it was impounded. Therefore, the first issue to be considered is whether or not the motor vehicle was stolen at the time it was detained.
The Appellant’s testimony was both detailed and credible. She testified that she did not give her consent to the suspended driver to use her vehicle. Rather, she was “passed out” in the passenger seat and was unaware that he drove the vehicle until she was awakened when it was pulled over by police. He obtained the keys only because he was aware of her practice of placing them under a tire when she knew she would be drinking.
The Tribunal accepts the Appellant’s testimony that she did not give consent to the suspended driver to use her vehicle. In fact, she was in no position to do so since she was “passed out” when her ex boyfriend arrived at the party, saw her, and decided to drive the vehicle. While she was in the vehicle while it was being driven, her mere presence does not constitute acquiescence or implied consent. The Tribunal notes that the Appellant was aware that her ex-boyfriend’s licence was suspended; she testified that he had recently lied to her aunt about the status of his licence in order to borrow her aunt’s vehicle. Given the Appellant was so careful as to place her keys under a tire to avoid any potential issues with the police, the Tribunal finds that it is highly unlikely that she would have allowed her ex-boyfriend to drive the vehicle had she been conscious.
In this case, it would be speculative for the Tribunal to attempt to determine the intent of the suspended driver. Even if the driver thought that the Appellant would not mind him helping her out by driving her home, that does not mean he took the vehicle with her permission. Nor is it necessary for charges to be laid for the ground of “stolen” to be proven. For the purposes of an impoundment appeal, the meaning of “stolen” does not necessarily require the criminal intent of the suspended driver. In this case, the evidence indicates there was no acquiescence or implied consent from the Appellant.
The Tribunal therefore finds, as set out in subsection 50.2 (3)(a) of the Act, that the vehicle was stolen at the time it was detained. Having found that the vehicle was stolen, there is no need for the Tribunal to consider the ground 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 vehicle.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
RELEASED: August 12, 2015