Licence Appeal Tribunal
Tribunal d'appel en matière de permis
DATE: 2015-12-31
FILE: 9929/MVIA
CASE NAME: 9929 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.
Tandel Nationalease Ltd. Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Appellant: Jeff Cockshutt, Agent
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: December 23, 2015
REASONS FOR DECISION
A hearing was held on December 23, 2015, at Toronto, Ontario, 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) of the Act, the Tribunal ordered the Registrar to release the vehicle. These are the reasons for that 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: 2007 MITS FE8 (the “vehicle”)
Date of Appeal: December 4, 2015
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #2), the owner appeals on the basis that the motor vehicle was stolen at the time it was detained in order to be impounded, and that the loss of the vehicle will result in exceptional hardship, as provided in sections 50.2(3)(a) and (d) 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?
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
Jeff Cockshutt is the Vice President of Finance of the Appellant, Tandet Nationalease Ltd. Mr. Cockshutt testified that the impounded vehicle has been in the care and control of Armstrong Moving & Storage since it was leased on September 12, 2014.
Christopher Louber is the Operations Manager of Armstrong Moving & Storage. Mr. Louber testified that his company operates as a brokerage which subcontracts moving jobs to movers. Armstrong Moving & Storage provides rental vehicles for the moves.
Jamie Ellis testified that he was the individual in charge of moves on the day of the impoundment. Mr. Ellis testified that the vehicles are kept in a gated yard and he controls the keys which are provided to the vehicle drivers on the day of the move unless a driver is scheduled to use the same vehicle on two consecutive days. He emphasized that he would never authorize an unlicensed driver to take a vehicle.
On the day of the impoundment, a three person crew was scheduled for a move using the impounded vehicle. The crew comprised the suspended driver; another mover I., and a licenced driver, P.S. Mr. Ellis testified that normally the crews arrive at the secured lot at approximately 7 a.m. to being preparatory work for a move. They would normally leave to go to the move site at approximately 8 a.m. However, on the day of the impoundment, P.S. called Mr. Ellis at 6 a.m. and advised him that he would be late. Because Mr. Ellis himself was scheduled to work another move that day, he was unable to wait for P.S. to arrive. He therefore gave the vehicle’s keys to crew member I. and told him to wait for P.S., who was on his way, to arrive. However, I. and the suspended driver chose not to wait but rather took the vehicle without permission. They were stopped by the Ministry of Transportation at a weigh station. Ministry staff then called the O.P.P. who impounded the vehicle.
Mr. Ellis testified that both I. and the suspended driver had worked for him “on and off” for a number of years. However, he noted that he had recently had issues with I. and speculated that this might have contributed to I. and the suspended driver’s decision to take the vehicle, which he described as a poor judgement call. Both I. and the suspended driver have subsequently been fired. Asked by Mr. Kapur if he was pursuing charges against his former employees, Mr. Ellis indicated that he believed being fired was sufficient action.
Mr. Ellis estimated that the cost of the impoundment will be $150 a day for each of the 45 days the vehicle is held and noted that this cost of $6,750 would be a hardship for his business.
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 impaired driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until October 17, 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 sections 50.2(3)(a) (c) 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.
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
In this case, the impounded vehicle was in the care and control of a subcontracted moving company. Mr. Ellis had control of the keys to the vehicle which was in a gated yard.
The evidence establishes that Mr. Ellis did not give the suspended driver permission to use the vehicle. A licensed driver, P.S., was scheduled to drive the vehicle. P.S. had notified Mr. Ellis that he would be late; however, he did not arrive before Mr. Ellis, who himself was scheduled on a move that day, had to leave. Therefore, Mr. Ellis gave the keys to employee I. with specific instructions to wait for P.S. to arrive. Mr. Ellis subsequently found out that the vehicle had been taken by the suspended driver and I. after he was called from the weigh station where the impoundment took place.
Mr. Ellis speculated that the employees might have taken the vehicle because of past issues that he and I. had. He also suggested that they might have wanted to start the job earlier in order to finish earlier. However, there was no evidence to indicate that the employees were actually on their way to the move site at the time the vehicle was impounded and the Tribunal cannot speculate as to the employees’ intentions.
Mr. Kapur submitted that the vehicle was not stolen because Mr. Ellis voluntarily gave the keys to his employees. The Tribunal disagrees. The evidence indicates that Mr. Ellis gave the keys to I., not to the suspended driver, with instructions to wait for P.S., the licensed driver, to arrive. Mr. Kapur also argued that the failure to pursue charges against the employees indicates that the vehicle was not stolen. However, it is not necessary to pursue charges for the ground of “stolen” to be proven. In this case, Mr. Ellis stated that he considered the fact that both I. and the suspended driver were fired to be sufficient action. The Tribunal finds this explanation credible given Mr. Ellis’ testimony that both employees who were dismissed lost jobs they had held for a number of years.
The evidence establishes that the vehicle was taken without permission. The Tribunal finds that the vehicle was stolen at the time it was impounded. Therefore, 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: December 31, 2015