9851 v. Registrar of Motor Vehicles, 2015 CanLII 89157

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-11-18

FILE:

9851/MVIA

CASE NAME:

9851 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:

D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

November 10, 2015

REASONS FOR DECISION

1A hearing was held on November 10, 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”).

2Pursuant to section 50.2(5) the Tribunal CONFIRMS THE IMPOUNDMENT. As a result the Appellant’s motor vehicle will remain detained at the impound facility until the conclusion of the 45 day impound period.

BACKGROUND

3A 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 FSX. (the “vehicle”)

Date of Appeal: October 22, 2015

ISSUES

4The Appellant’s Notice of Appeal (Exhibit #1), sets out two grounds of appeal: that the loss of the vehicle will result in exceptional hardship, and that she exercised due diligence in ensuring that the vehicle was not driven by a suspended driver. At the hearing, she also alleged in her grounds of appeal that the vehicle was stolen at the time it was impounded or that the driver’s licence of the driver was not then suspended and the evidence raised the possibility that the licence was not, in fact suspended, so the Tribunal considered all of the grounds of appeal in 50.2(3) of the Act.

5Should the Tribunal order the Registrar to release the motor vehicle on the basis that:

1. The vehicle was stolen at the time it was impounded,

2. The driver’s licence of the driver at the time of impoundment was not then suspended,

3. The Appellant exercised due diligence before permitting the suspended driver to drive the vehicle, or

4. the impoundment will result in exceptional hardship?

FACTS

Evidence for the Registrar

6The documents tendered by the Registrar and admitted into the record as Exhibit #3 on consent of the Appellant were as follows:

1. Notice to Registrar 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 whose licence to drive was under suspension as a result of a conviction under the Criminal Code of Canada;

2. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of driving offences under the Criminal Code of Canada pursuant to which the driver’s licence of the driver had been suspended for life on June 27, 2001 and again suspended for life on November 16, 2009;

3. Vehicle record for the impounded vehicle;

4. Notice of Impoundment sent to the Appellant; and

5. Copy of the Ministry of Transportation records indicating that the Appellant owns a second plated motor vehicle;

Evidence for the Appellant

7The Appellant was the only person to testify. She owns two vehicles, including the impounded vehicle. She purchased the vehicle about eight months ago for the use of her son. Her son does not live with her but shares accommodation with the suspended driver about a 15 minute walk from her place. All parties live in a small town in southwestern Ontario and the Appellant and her son work in the nearby city, about 20 minutes’ drive away. Recently her son has been working an 11:00 p.m. to 7:00 a.m. shift and the Appellant works from 8:00 a.m. to 5:00 p.m. To use her words, during the impoundment period: “They have managed.” They have no medical issues or special needs and have not missed a significant amount of work.

8There is some confusion in her evidence regarding her knowledge of the licence status of the suspended driver. It appears to the Tribunal from a review of her evidence that neither she nor her son were aware that the suspended driver did not have a valid licence at the time he borrowed the vehicle. No enquiry was done into his status. He owned his own vehicle and drove himself around so it was assumed that he had a valid licence. On the day in question, his vehicle was in need of an emissions test which he could not immediately afford. Having parked his car while he saved the money for the test, he asked the Appellant’s son for a loan of the Appellant’s vehicle to go to the nearby city. He was stopped by police on that trip and the vehicle was impounded.

9The confusion arises out of a series of events focused around the conviction and lifetime suspension in November 2009. Following the impoundment, the Appellant made enquiries of the suspended driver and assisted him in getting documents from the local court. In 2008, the suspended driver received a temporary driver’s licence (Exhibit #4). This fact is hard to understand given that there is no evidence of reinstatement of his licence following his 2001 lifetime suspension. He appealed his November 2009 conviction and on October 21, 2010 that conviction was quashed (Exhibit #4). According to the Appellant, the suspended driver was then issued a full licence, which she never saw. When the suspended driver attended court in June 2015 to answer speeding charges and driving without an insurance certificate, the police officer took his driver’s licence. The suspended driver has been working with the Ministry to get his licence returned to him and is insistent that he is not suspended. He has been relying on the 2008 temporary licence and the court order quashing his conviction to support his contention that he is not suspended. The Tribunal notes that the June 2015 charges did not include charges of driving while suspended under s. 259(4) of the Criminal Code.

10In addressing her contention that the vehicle was stolen at the time it was impounded, the Appellant testified that her son is aware that he is not to lend the vehicle to anyone because of potential consequences to the Appellant. She did not specifically discuss this with her son, whom she sees about once a week, but stated that he knows of her deep concern over anyone else driving her cars. She is sure that he was aware of her concerns and had never lent the vehicle to the suspended driver before. In cross-examination, she admitted that the whole basis for her belief that the suspended driver had not driven the vehicle before was that he had his own vehicle and it is her belief that it was out of service on only this occasion. She admitted that she had no direct knowledge of whether the suspended driver had used her vehicle before.

LAW AND ANALYSIS

11Section 55.1 of the Highway Traffic 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.

12The 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 all of the subsections of sections 50.2(3). The onus is on the Appellant to establish that one or more of the above grounds applies on these facts.

ISSUE: Was the vehicle “stolen” at the time it was detained in order to be impounded?

13The meaning of “stolen” is not defined in The Highway Traffic Act. 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.

14The 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.”

15The Appellant relies on 7370 v. Registrar of Motor Vehicles, 2012 CanLII 27174 (ON LAT). In that case, a woman lent her vehicle to her son with the understanding, not stated explicitly, that her ex-husband was not to drive the vehicle. The appellant in that case testified that she did not explicitly tell her son not to lend the car to his father because she did not want to put him in an awkward position when dealing with his father. The Tribunal held that the vehicle was stolen, stating:

The Tribunal understands the unusual circumstance of this matter. The Applicant lent her vehicle to her son, she had no control over her son’s actions in allowing his father to drive the vehicle. Evidence supports the fact that the Applicant’s son allowed the disqualified driver to use the vehicle without consulting with the Applicant. It further appears that had her son discussed the matter with her she would have not granted permission. The Tribunal found the Applicant totally credible and believed her testimony that it was never her intention to allow her ex-husband to drive the vehicle.

Thus, having considered the evidence, the Tribunal is satisfied that, the vehicle was taken without the knowledge and consent of the Applicant, therefore the criteria of section 50.2(3)(a) was met and the Tribunal finds that the Applicant’s vehicle had been stolen at the time of impoundment.

16It would appear that the facts in 7370 bear a remarkable similarity to the facts in this case. There was no specific discussion between the appellant and her son about the suspended driver’s use of the vehicle. The son was assumed to understand that his father was not to use the car. While the owner was aware that her ex-husband’s licence had been suspended, there was some question about the validity of the suspension while his appeal was pending. The difficulty for this Tribunal is that it does not find the reasoning on 7370 to be persuasive. Rather, the finding seems to be generally unsupported by the facts.

17As in the present case, the 7370 vehicle was taken with the permission of the person having legal possession of it. In this case, however, the Appellant had not met the suspended driver more than once or twice and had no knowledge of the status of his driving privileges. She certainly did not address her mind to specifically excluding him from use of the vehicle, relying instead on her belief that her son understood he was to let no one else drive the car. Her knowledge of the suspended driver’s status post-dates the impoundment when she assisted him in getting a copy of the 2010 court order.

ISSUE: That the driver’s licence of the driver at the time of the impoundment was not then under suspension?

18The uncontroverted evidence before the Tribunal is that the driver at the time of the impoundment was given a lifetime ban from driving in 2001. While the second lifetime ban in 2009 seems to have been quashed, there is no direct evidence before the Tribunal to show that the suspended driver’s licence had been reinstated. While there are tantalizing hints that the suspended driver was given a licence that was subsequently confiscated by a police officer in June 2015, and there is a 2008 temporary licence, the evidence does not establish that the 2001 lifetime ban has ever been lifted. Accordingly, the Tribunal finds that the licence of the driver was under suspension at the time of the impoundment.

ISSUE: Did the Appellant exercise due diligence in attempting to determine that the driver’s licence was not then under suspension?

18Due diligence is a flexible concept that directs the Tribunal to consider what actions a reasonably prudent person would take to ascertain the truth of facts before embarking on a course of action in any given circumstances. In recent cases, this Tribunal has held that due diligence can extend to giving clear instructions to a person borrowing a car that they must not let a known suspended driver drive the vehicle. In 7926 v. Registrar of Motor Vehicles, 2013 CanLII 13686 (ON LAT), a woman left her car with her boyfriend’s family so her boyfriend’s brother could drive her children and take her to a medical appointment the next day. She was aware that her boyfriend’s licence was under suspension so she gave specific instructions that he was not to drive the car. In breach of her instructions, her boyfriend drove the car resulting in it being impounded. In finding that the appellant had exercised due diligence, the Tribunal stated:

The courts have held that to rely on a defence of due diligence, an Applicant must demonstrate that reasonable steps were taken to ensure the validity of an individual’s driver’s licence, prior to allowing that individual to drive.

The Registrar’s Agent suggested that the Applicant could not have exercised due diligence in that she was not present when the vehicle was taken by the suspended driver. The Applicant maintains that she left the vehicle with a licenced driver whom she expected to be the driver.

The Tribunal finds on the evidence that the Applicant was not responsible for the suspended driver’s actions, actions which, she could not have predicted nor controlled. Further, the Tribunal finds that by leaving and asking a licenced driver to assume care and control of her vehicle exercised due diligence.

19The Tribunal is of the view that 7926 can be distinguished from the current facts. The appellant in that case left her car with her boyfriend’s family for a short period while she was ill with instructions about who was and who was not to drive it. She was aware that her boyfriend was serving a licence suspension such that there can be no doubt about not giving him permission to drive. Indeed, given her boyfriend’s actions of taking the vehicle knowing he did not have permission to do so, this case might also have been decided under the “stolen” provisions. In the current case, the Appellant’s son had permanent custody and control of the vehicle. No enquiry was made into the licensing status of the suspended driver until after the vehicle was impounded. Nor was the Appellant specific in directing her son that no other driver could use the vehicle, especially the person with whom he had closest contact, the suspended driver/roommate, and this was a person whom the Appellant already knew had some history of licence suspension. The Tribunal finds that there no exercise of due diligence on the present facts.

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

19The 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.

16Where 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.

17Section 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.

18Second, the section provides that the Tribunal may not, except in certain circumstances, consider certain factors:

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

19These factors may be considered if the owner demonstrates that

• 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.

20The 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.

21The Appellant largely abandoned this ground of appeal at the outset of the hearing. She has a second vehicle available to her. Neither she nor her son suffer from any health issues requiring regular travel to medical appointments that cannot be accommodated by sharing the car. Her son’s shifts are such that with some management of resources both he and she can use the car to travel the twenty minutes to work. They have managed. Accordingly, the Tribunal cannot find that the Appellant will suffer exceptional hardship as a result of the impoundment. She has an alternative to the impounded vehicle and can point to no loss as a result of the impoundment.

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, and it will remain at the impound facility until the conclusion of the 45 day impound period.