Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 9891/MVIA
CASE NAME: 9891 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 subsection 55.1(3) of the Act
Appellant
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Jacqueline Castel, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: December 3, 2015
REASONS FOR DECISION AND ORDER
A hearing was held on December 3, 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 “Act”).
Pursuant to subsection 50.2 (5) of the Act, the Tribunal confirms the impoundment. As a result, the Appellant’s motor vehicle will remain detained at the impoundment facility for 45 days.
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: 2006 PONT, G/P (the “vehicle”)
Date of Appeal: November 9, 2015
ISSUES
As set out in the Appellant’s Notice of Appeal (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 subsections 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
The Appellant resides in a community north of Toronto and is the single mother of two school age children, an 11 year old son and a 17 year old daughter. The Appellant resides with her son. Her daughter is currently residing with her boyfriend and his family in a neighbouring community, where she goes to high school and has a part-time job. Her son, who resides with her, has asthma.
The suspended driver is the Appellant’s ex-boyfriend and currently they are “just friends”. The Appellant and her son were staying at the suspended driver’s house, located in a neighbouring community, when he drove her vehicle. She was aware that his driver’s licence was suspended for impaired driving. She left her car keys in her purse, which was near the front door of the suspended driver’s residence, and parked the vehicle in the driveway of his residence. She was not feeling well and did not give him permission to drive her vehicle. She thought that he took her car keys to listen to the radio in her vehicle while he was working in the garage. She has allowed him to take her car keys, for the purpose of listening to music while working in the garage, on other occasions.
The Appellant acknowledged that, on another occasion when the suspended driver’s licence was under suspension, he drove a vehicle which she owned at that time, without permission, and this vehicle was also impounded.
When the vehicle was impounded on November 1, 2015, the suspended driver’s uncle drove the Appellant back to her residence on that same day.
The Appellant stated that the loss of the vehicle is causing her exceptional hardship. She described her vehicle as her “life blood”. There is no public transportation system in the community where she lives. She had no way of getting to and from her place of part-time employment, and as a result, has lost her job. She is applying for jobs all over the province but is not able to go for job interviews without a vehicle. She is not able to pick her daughter up from the neighbouring community without a vehicle. Her daughter’s boyfriend’s parents, with whom she is residing, are handicapped and do not drive.
The Appellant’s son takes a school bus to and from school in their home town. Sometimes her son has breathing issues at school, and the school calls her to pick him up and take him to the doctor. She has no way of reaching the school in a timely manner without a vehicle. On one occasion, while the vehicle was impounded, the school therapist drove her and her son to a walk-in clinic. The Appellant indicated that her son’s asthma is being managed with medication and that he also has a puffer. She also indicated that there are 911 emergency services in her area but she has not had reason to use it for her son. She indicated that the Children’s Aid Society has questioned her about her ability to care for her son without a vehicle.
The Appellant stated that there is a Wal-Mart within walking distance from her home so she does not have an issue purchasing groceries.
The Appellant stated that she does not have family members, neighbours or friends who can assist her with transportation.
The Appellant stated that she receives $500 per month in child support from her ex-husband and a child tax credit in the amount of $840 per month. She indicated that this is not even enough to pay her monthly rent.
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 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 licence of the driver is suspended for life.
Copy of the Ministry of Transportation records indicating that, among other things, a vehicle impounded on May 31, 2014 was registered in the name of the Appellant as owner.
Copy of the Ministry of Transportation records indicating that the driver at the time of the impoundment on May 31, 2014 had been convicted of driving while disqualified under the Criminal Code of Canada pursuant to which the licence was then under suspension until June 3, 2014, and the driver was the same individual as in point 4 above.
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 subsections 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.
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.
APPLICATION OF LAW TO FACTS
The Appellant testified that she was aware that the suspended driver’s licence was under suspension and that she did not give him permission to drive her vehicle. She was also forthright in acknowledging that this was not the first time he has driven one of her vehicles without permission, while his driver’s licence was under suspension.
The Appellant was aware that his licence was under suspension and that, on another occasion, he drove a vehicle she owned while his licence was under suspension. She was staying at his home for the weekend and left her car keys unattended. She was aware that he had taken the keys and there is no evidence that she explicitly told him not to drive her car. She had also permitted him to take her car keys on other occasions, for the purpose of listening to music while working in the garage, also when his licence was under suspension. In these circumstances, the Tribunal finds that the Appellant has not met the onus of establishing on the balance of probabilities, under subsection 50.2(3)(a) of the Act, that the suspended driver had stolen her motor vehicle when the vehicle was detained in order to be impounded.
The Appellant also testified that the impoundment has resulted in exceptional hardship. However, subsection 50.2(4) provides that an appellant cannot avail herself to the “exceptional hardship” ground of appeal where there was a previous impoundment under section 55.1 with respect to any motor vehicle then owned by the same owner. The Appellant was forthright in acknowledging that a previous vehicle she owned (1983 CHEV, CAM) was impounded because the same suspended driver drove it while his licence was under suspension. Therefore, the Tribunal cannot consider the submissions pertaining to exceptional hardship.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under subsection 50.2(5) of the Act, the Tribunal confirms the impoundment of the Appellant’s motor vehicle, and it will remain at the impoundment facility for 45 days.
LICENCE APPEAL TRIBUNAL
Jacqueline Castel, Member
Released: December 7, 2015