Licence Appeal Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2015-08-20

FILE: 9692/MVIA

CASE NAME: 9692 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: Chantal Proulx, Vice-Chair

APPEARANCES:

For the Appellant: Nenus Younan, Agent

For the Respondent: Julia Scorcia, Agent

Heard by teleconference: August 6, 2015

REASONS FOR DECISION

A hearing was held on August 6, 2015, by teleconference, to consider the Appellant’s appeal according to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “Act”).

According to section 50.2 (5) of the Act, the Tribunal confirms the impoundment. As a result, the Appellant’s motor vehicle will be detained at the impound facility for 45 days.

PRELIMINARY ISSUES

At the conclusion of the hearing and on consent of the parties, the Vice-Chair issued an order requiring the agent for the Respondent to file the contemporaneous notes of the investigating officers with the Licence Appeal Tribunal (the “Tribunal”) and the Appellant’s agent by the end of the day on Monday, August 10, 2015. The agent for the Appellant had until the end of the day on Wednesday, August 12, 2015, to file his response with the Tribunal and the agent for the Respondent. Finally, the agent for the Respondent had until the end of the day on Friday, August 14, 2015, to file a reply with the Tribunal and the agent for the Appellant.

The agent for the Appellant filed his response late. The agent for the Respondent and the Tribunal received the response on August 13, 2015, rather than August 12, 2015, as set out in the Order. The agent for the Respondent objects to the late filing of the Appellant’s submissions. Nevertheless, the agent for the Respondent provided a detailed reply to the Appellant’s response within the timelines set out in the Order.

The Tribunal is mindful that the timelines for filing submissions were quite short; however, it is important to note that the parties agreed to these timelines. The Tribunal accepts the submissions filed by the parties. However, the Tribunal would like to remind the agent for the Appellant that he was expected to respect the timelines set out in the Vice-Chair’s Order. In the event of “uncontrollable circumstances”, a party must communicate with the Tribunal and the other party to explain the situation and request an extension of time to file documents.

BACKGROUND

The Appellant’s motor vehicle was impounded on June 11, 2015, pursuant to section 55.1 of the Act. The Appellant appealed to the Tribunal on two grounds: the motor vehicle was stolen and exceptional hardship.

The owner, motor vehicle, and date of appeal in this matter are as follows:

Owner: Appellant

Motor Vehicle: 2003, Suzi G60

Date of Appeal: June 19, 2015

ISSUES

The Tribunal must decide two issues:

1. Should the Tribunal order the Registrar to release the motor vehicle on the basis that the motor vehicle that was impounded was stolen at the time it was detained in order to be impounded?

2. Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?

FACTS

Evidence for the Appellant

The Appellant testified that he keeps his motorcycle at a friend’s house, next door to where the driver lives. The Appellant and the driver are friends. When the Appellant arrived at this friend’s house on June 11, 2015, his motorcycle was in the driveway and his helmet and keys were inside the house. The Appellant stated that he went to the store and when he returned to his friend’s house, police officers were in the driveway. The Appellant stated that the police officers impounded his motorcycle without giving him a chance to explain the situation. The Appellant claims that he did not consent to the driver driving his motorcycle. Furthermore, the Appellant claims that there is no evidence to support the fact that the driver drove his motorcycle.

In cross-examination, the Appellant confirmed that he did not charge the driver with theft of his motorcycle. According to the Appellant, the driver told him he did not drive the motorcycle in question. The Appellant does not believe the driver drove his motorcycle because when he returned from the store it was parked in the same location as when he left for the store.

The agent for the Appellant argued exceptional hardship on the basis that the Appellant could not afford to pay the impoundment fees. Although the 45-day impoundment ended on July 26, 2015, as of the date of the hearing, the Appellant had yet to pick up his motorcycle because he could not afford the fees associated with the impoundment.

Evidence for the Registrar

The Registrar filed written submissions with the Tribunal on July 30, 2015. These documents, which contain information relating to the impoundment of the vehicle, were admitted into the record on consent of the Appellant. The key documents are as follows:

1. A copy of the Notice to Registrar indicating that the Appellant’s motor vehicle was impounded on June 11, 2015;

2. A copy of the Ministry of Transportation records concerning the driver of the motor vehicle when it was impounded, indicating that his driver’s licence was suspended on January 18, 2015 until February 20, 2018;

3. A copy of the Notice of Impoundment for a period of 45 days effective June 11, 2015;

4. A copy of the vehicle history; and

5. A copy of the RIN Summary # Y025341099920612.

Police Constable Oosterhoff testified on behalf of the Respondent. He has been working for the Police Department since 2009. He testified that on June 11, 2015, he was on duty in plainclothes with his partner, Police Constable Rowan. Around 11:30 a.m., they arrived near the driver’s house to determine if the driver was still driving, despite having his driver’s licence suspended. Around 12:30 p.m., Police Constable Oosterhoff observed the driver sitting on a blue and white motorcycle. The driver was with another man who appeared to be showing him the motorcycle. Police Constable Oosterhoff observed the driver put on a helmet, drive away around 12:36 p.m. and return shortly afterwards, at 12:42 p.m. When the driver returned, Police Constable Oosterhoff and his partner approached the driver on foot and the driver ran. Police Constable Oosterhoff chased the driver while his partner dealt with the male in the driveway. Police Constable Oosterhoff testified that his partner told him that the other male in the driveway identified himself as the Appellant.

In cross-examination, Police Constable Oosterhoff confirmed that the Appellant identified himself to Police Constable Rowan. Afterwards, Police Constable Rowan showed Police Constable Oosterhoff his notes, which confirmed that the male in the driveway with the driver was the Appellant.

The agent for the Appellant questioned Police Constable Oosterhoff about their decision not to pursue the driver. Police Constable Oosterhoff explained that they had no authority to arrest the driver when he was sitting on the motorcycle. Once the driver drove off, they determined that it was safer to wait for his return. Their decision was based on the fact that the driver had been convicted of dangerous driving and failing to stop for a police officer.

Following the hearing and in accordance with the Vice-Chair’s Order, the agent for the Respondent provided the notes from Police Constable Oosterhoff and Police Constable Rowan relating to June 11, 2015.

According to Police Constable Oosterhoff’s notes, he observed the driver sitting on a blue and white motorcycle and he was with a “male – large – black t-shirt – heavy – brown.” The driver put on a helmet, drove away solo at 12:36 p.m. and returned at 12:42 p.m. In his notes, Police Constable Oosterhoff wrote: “it appeared the male in dark t-shirt was showing [the driver] the bike so we decided not to spin but head back … to await his return.” When the driver returned, only 5-6 minutes later, the male in the dark t-shirt approached the driver. The driver turned off the bike and took the helmet off.

According to the notes from Police Constable Rowan, the driver was disqualified from driving for failing to stop and dangerous driving. At 12:30 p.m., he observed the driver sitting on a motor bike talking with another male. At 12:36, the driver put on a black charcoal helmet and drove off. He returned at 12:42 p.m. At 12:45 p.m., Police Constable Rowan notes the name of the Appellant, his home address, and a phone number. In addition, he notes that the Appellant purchased the motor bike two days ago.

LAW

Section 55.1 of the Act provides that a motor vehicle may be detained and impounded. Subsection 55.1(3) of the Act states:

3. A motor vehicle detained under subsection (1) shall be impounded as follows:

1. 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.

2. 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.

3. 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 of a motor vehicle that is impounded may appeal the impoundment to the Tribunal; however, the owner may only appeal on four specific grounds set out in subsection 50.2(3) of the Act.

(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 appeals on the grounds set out in paragraphs 50.2(3)(a) and (d).

According to subsection 50.2(5) of the Act, on appeal the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle. According to subsection 50.2(8) of the Act, the decision of the Tribunal is final and binding.

1. Stolen motor vehicle

The Highway Traffic Act does not define the meaning of “stolen”.

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:

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.”

2. 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.

According to subsection 50.2(4), an individual cannot appeal on the ground of exceptional hardship if any of their previous motor vehicles had been impounder under section 55.1 in the past.

Section 10 of Ontario Regulation 631/98 sets out the criteria that can, and cannot be, considered when determining if there is exceptional hardship. First, the Tribunal must consider whether no alternative exists for the impounded vehicle. If there is no alternative, then the Tribunal must consider if 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.

Generally, the Tribunal may not consider:

• financial or economic loss to any person,
• loss of employment or employment opportunity to any person, or
• loss of education or training.

However, the Tribunal may consider the financial economic loss to any person, the loss of employment or the loss of education if the owner of the motor vehicle 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.

The owner of the vehicle must prove all elements of the grounds of appeal on the balance of probabilities.

APPLICATION OF LAW TO FACTS

Stolen motor vehicle

The crux of the issue before the Tribunal is whether the Appellant was in his friend’s driveway when the driver drove off with the Appellant’s motorcycle. In other words, did the Appellant consent to the driver driving his motorcycle or did the driver steal the Appellant’s motorcycle?

The Appellant’s agent and the Respondent’s agent presented two very different scenarios of the events surrounding the impoundment of the Appellant’s motorcycle on June 11, 2015.

According to the Appellant’s agent, the Appellant was not in his friend’s driveway with the driver. The Appellant’s agent argued that there was no evidence, only hearsay, to support the fact that the driver drove the Appellant’s motorcycle. He claims that the situation could have been avoided if the officers identified themselves. Furthermore, the Appellant’s agent claims that the officers were not allowed to impound the Appellant’s motorcycle because it was on private property. Finally, the Appellant’s agent noted that the officers did not provide the Appellant with a copy of the Notice to the Registrar in a timely manner and it created a delay in proceeding with a hearing before the Tribunal.

The agent for the Respondent submitted that the evidence presented by Police Constable Oosterhoff proves that the Appellant was in the driveway with the driver, therefore the Appellant could not argue that his motorcycle was stolen. Regarding the argument of exceptional hardship, the agent for the Respondent submitted that the Tribunal cannot consider the impoundment fees as part of its analysis of financial hardship.

The Tribunal finds that it is more likely than not that the Appellant was in his friend’s driveway when the driver left with the Appellant’s motorcycle. The Tribunal puts more weight on the testimony of Police Constable Oosterhoff. First, his testimony is supported and aligned with his contemporaneous notes, which indicate that a male in a dark t-shirt was showing the driver the motorcycle. The same individual was in the driveway when the driver returned to the driveway, turned off the bike and took off the helmet. Police Constable Oosterhoff testified that his partner identified the male in the dark t-shirt as the Appellant.

In addition, the contemporaneous notes from Police Constable Rowan reference the driver sitting on a motor bike talking with another male. Police Constable Rowan then notes that the alleged driver returned at 12:42 p.m. and took off the helmet. The notes made at 12:45 p.m. reference the Appellant, his home address, his telephone number and the fact that he purchased the motor bike 2 days ago.

The Tribunal considered the written submissions from the agent for the Appellant and the agent for the Respondent. Having reviewed the contemporaneous notes from Police Constable Oosterhoff and Police Constable Rowan, the Tribunal prefers the explanation provided by the agent for the Respondent. The Tribunal finds that there is no evidence to suggest that Police Constable Rowan “doctored” his notes. The Tribunal recognizes that the notes related mostly to the events surrounding the driver. Nevertheless, the notes clearly indicate that there were two individuals in the driveway and provide a good description of both individuals.

Therefore, the appeal on the ground that the driver stole the Appellant’s motorcycle fails.

The Appellant’s agent argued that the motorcycle should not have been impounded because it was on private property. However, the Appellant’s agent failed to elaborate on his position, or point the Tribunal to relevant case law or legislation to support his argument.

Finally, the Appellant’s agent argued that the officers did not provide the Appellant with a copy of the Notice to the Registrar in a timely manner. The Tribunal finds that this issue is not relevant to the issue before the Tribunal. Therefore, the Tribunal makes no finding on this issue.

Exceptional hardship

According to section 10 of Ontario Regulation 631/98, when deciding if exceptional hardship will result from an impoundment under section 55.1 of the Act, the Tribunal must first consider if no alternative exists for the impounded motor vehicle. The Appellant has the burden of proving this on the balance of probabilities.

The Tribunal finds that the Appellant has not demonstrated, on the balance of probabilities, that there is no alternative for the impounded motor vehicle. According to the RIN summary, the Appellant has two other motor vehicles registered to his name and home address. Therefore, the Appellant has failed to prove on a balance of probabilities that no alternative exists for the impounded motor vehicle.

The Tribunal acknowledges that the Appellant’s agent indicated that the Appellant did not have the financial resources to pay for the impoundment at the end of the 45-day period, and therefore has not been able to retrieve his motorcycle vehicle when the impoundment ended on July 26, 2015. However, using the impoundment costs as a basis for financial loss and exceptional hardship may be difficult when the Appellant is permitted under the legislation to recover those costs from the suspended driver. The Tribunal will not, therefore, consider the cost of the impoundment as part of its assessment of exceptional hardship.

Based on the evidence, the appeal on the ground of exceptional hardship also fails.

DECISION

After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal confirms the impoundment of the Appellant’s motor vehicle, was to remain at the impound facility for 45 days.

LICENCE APPEAL TRIBUNAL

Chantal Proulx, Vice-Chair

RELEASED: August 20, 2015