Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2015-12-10
FILE: 9879/MVIA
CASE NAME: 9879 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:
Eleanor White, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Sanjay Kapur, Agent
Heard by teleconference:
November 23, 2015
REASONS FOR DECISION AND ORDER
A hearing was held on November 23, 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, on November 25, 2015 ordered the Registrar to release the vehicle, with reason to follow.
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: 2010 KIA FLX, (the “vehicle”)
Date of Appeal: November 9, 2015
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #1), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, all 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?
There was sufficient evidence at the hearing to suggest that the Appellant’s vehicle may have been “stolen” at the time it was detained in order to be impounded, as provided in section 50.2(3)(a) of the Act. In a hearing of this nature, the Tribunal may consider any grounds for relief that arise in the evidence without the requirement for an Appellant to specifically outline the grounds in the Notice of Appeal. The Tribunal has therefore considered whether or not the ground that the vehicle was stolen applies in this case.
FACTS
Evidence for the Appellant
A summary of the Appellant’s evidence follows.
The Appellant lives in a northern Ontario community. She is the owner of the vehicle which is impounded in Hamilton, Ontario. The driver (KQ) of the vehicle at the time of the impoundment is currently held in a detention centre.
The Appellant was very upset throughout the entire hearing. She testified that she met KQ online in May 2015. She had believed his statements to her that he had a job, a home and a stable life. The first in-person meeting, in October, involved an activity called geocaching, a kind of modern-day treasure hunt, involving driving some distance in search of the ‘treasure’ in a storyline. Their excursion took them from her community to Hamilton. The trip was made in the Appellant’s car, with her as driver. Upon arrival in Hamilton, the Appellant pulled into a Tim Horton’s to use the restroom. When she exited the restaurant, she found KQ leaning against the driver’s door of the car, smoking. He said he wanted to drive the car. At that time, the Appellant asked him if indeed he had a licence and he said he did not currently have a licence. She told him that he could not drive. According to the Appellant, KQ got into the driver’s seat and refused to move from it. He was becoming verbally abusive. The Appellant was becoming nervous and got into the passenger seat to further the discussion. As he became more insistent and more verbally abusive, he either took the keys from her or she was intimidated into relinquishing the control of the keys.
With control of the keys, KQ drove quickly from the Tim Horton’s parking lot for a short distance, drove through a red light, hitting a vehicle from the rear, then abandoned the vehicle and fled on foot. Paramedics attended the scene as did the police. The Appellant gave a statement to the police. Meanwhile, a retired OPP officer had chased KQ and eventually apprehended him. KQ was subsequently arrested and is still in jail.
Although the vehicle was impounded, it is not driveable and the Appellant has been repeatedly attempting to contact the insurer with limited success. She has facilitated the release of the police paperwork to the insurer, but has had no guidance with respect to the consequences of the collision. The vehicle is leased and as yet, the Appellant has not spoken to the leasing company.
The Appellant has appealed to the Tribunal on the grounds of exceptional hardship. She explained that she works for a local health service. Her hours are long and irregular and often tied to events held in other sites. Her work entails the use of a vehicle, not only to reach her office, but also to serve the members of the community, wherever that takes her. She has attempted to carpool with other employees or community members going into the centre, but that may involve taking rides hours before her shift begins. The Appellant has missed two days of work to date. She has investigated the use of taxi service to get to work, and depending upon the location at which she is needed, the minimum one way trip would be about 45 Km. The use of a taxi service to do her job would be prohibitive. The Appellant also researched the possibility of car rental, by going online and entering information. Her evidence included the print-outof this online search but the numbers were contradictory and confused, leading to a total of $391.00 per week. In fact, the rental would be perhaps closer to a figure of $200 to $225 based on the type of vehicle.
The Appellant’s testimony was shown to be somewhat inaccurate with respect to distances and/or costs. However, the Tribunal found her to be credible, but perhaps less experienced in the business of arranging car rentals and she seemed overwhelmed by any contemplation of remedial actions.
On cross-examination, the Appellant stated that although there is no public transit in her community, emergency services, including a ‘911’ service, are operating. The Appellant has no health issues, nor is she responsible for personally transporting others in her car for health or safety reasons. Her sister has helped her to get groceries and, although overwhelmed, she is managing to get to work reasonably well and has basic groceries in her home. The Appellant responded on cross-examination to queries about her financial ability to pay for the impound fees. She had some savings, but had used them recently to put new brakes into the vehicle.
The Appellant had not inquired about charging KQ with theft, but had tried to deny him access to her keys when she ascertained that he was not licensed, she had driven the whole distance prior to the Tim Horton’s stop. The Appellant did not want KQ to drive her vehicle.
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 dangerous driving, failure to stop for a police officer and driving while disqualified or prohibited, under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension for life, since November 28, 2007.
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) 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 closing, the Appellant submitted that the vehicle had been driven without her consent. She had been driving the vehicle and had only entered the passenger side of the vehicle after having temporarily exited the vehicle to go into the Tim Horton’s because KQ had entered and refused to get out of the driver’s seat.. She had attempted due diligence, inquiring as KQ’s drivers licence status, but had been intimidated verbally. With respect to the grounds of exceptional hardship, she has been able to attend her work on all but two days since the impoundment.
In his summary statements, the Agent for the Registrar asked the Tribunal to confirm the decision of the Registrar. Although the Agent for the Respondent did acknowledge the Appellant’s diligence in inquiring as to KQ’s licence status, she did eventually give her keys to KQ with knowledge of the facts. The Agent also submitted that since the Appellant failed to lay theft charges against the suspended driver, the vehicle cannot be considered as stolen, as set out in subsection 50.2(3)(d) of the Act. In the opinion of the Registrar, the Appellant gave the keys to KQ and subsequently there is no proof that the driver intended to deprive the Appellant of her vehicle.
In addressing the issue of hardship, the Registrar’s Agent stated that the Appellant found alternative transportation to get to work and to keep basic groceries in the house. The possibility of renting a vehicle for the remainder of the impoundment period was not as onerous as the Appellant had thought, once the error in her calculations had been explained to her. As there were no other health or safety issues, the Respondent’s position was that the circumstances did not meet the test of exceptional hardship and that the impoundment should be upheld.
The Tribunal notes that it is not necessary for criminal charges to be laid in order to prove that a vehicle was stolen within the meaning of the impoundment provisions in the Highway Traffic Act. There is a long line of Tribunal cases, as well as the often-cited Marshall decision, that clearly support this position.
The Appellant testified in an emotional but straightforward manner. She responded to all questions without any hesitation or evasiveness. The Tribunal finds her evidence to be credible.
The Tribunal concludes that the vehicle was taken by the suspended driver without the Appellant’s consent. The Tribunal is satisfied that he obtained the keys by intimidation of the Appellant. The Appellant did not know the suspended driver well and was many miles from home in a situation where the suspended driver intended to take control of the vehicle. His operation of the vehicle, running a red light, rear-ending a vehicle and fleeing the scene, are facts which imply aggressive behavior and support the Appellant’s testimony of intimidation. This use of the Appellant’s vehicle was more one of bullied acquiescence than one of consent. Given that this legislation seeks to impose consequences on owners whose vehicles are driven by suspended drivers, it is reasonable and logical that the concept of “stolen” in these impoundment cases must be considered from the perspective of the owner. In the circumstances of this case, it is very clear that the vehicle was driven without the Appellant’s consent and therefore must be considered as stolen. Therefore, the appeal succeeds on the ground of stolen as set out in subsection 50.2(3)(d) of the Act.
As the Tribunal finds that the vehicle was stolen at the time of the impoundment, it will not be necessary to consider the defence 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 motor vehicle.
LICENCE APPEAL TRIBUNAL
_______________________
Eleanor White, Member
Released: December 10, 2015