Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9295/MVIA
CASE NAME: 9295 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: Geneviève Blais, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: January 6, 2015
REASONS FOR DECISION
A hearing was held on January 6, 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”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the HTA. As a result, the Appellant’s motor vehicle will remain detained at the impound 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: 2007, HOND, UDV (the “vehicle”)
Date of Appeal: December 10, 2014
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, as provided in section 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?
The evidence at the hearing made it clear that the Appellant was also asserting that the vehicle was “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 resides with her two children, ages 13 and 18 years. The Appellant’s boyfriend was the suspended driver at the time the vehicle was impounded. He is the father of her children and they have lived apart for five years. He visits often and provides the Appellant with money from time to time. He is currently unemployed.
The Appellant testified that on the evening the vehicle was impounded, her boyfriend was at her house. She retired to bed at around 11:00 p.m. while her boyfriend told her he would stay around longer. She was woken in the middle of the night by a telephone call from the police advising her of the vehicle impoundment and her boyfriend’s licence suspension.
In cross-examination, the Appellant stated she was unaware of her boyfriend’s criminal conviction and his licence suspension. He has not explained to her why he took the vehicle to visit a friend on the evening the vehicle was impounded. She is clear that he did so without her permission. The Appellant keeps the keys to the vehicle with her house keys and leaves them in a visible area near the front door of her house. As her boyfriend took the keys to the vehicle and drove it without her consent, she is of the view that he stole it.
The Appellant stated she was unaware that her boyfriend is listed as a registered owner of the vehicle. She acknowledged that he has co-signed for the car loan, but stated he does not have his own keys to the vehicle and she maintains the vehicle is hers alone.
The Appellant stated that the loss of the vehicle will cause exceptional hardship because she needs the vehicle for work. She has been employed for nine years as a sales representative. Although she is paid a weekly salary, her commission sales have declined. She requires the vehicle to meet with clients located both in and out of the city. She has been unable to rent a car due to insufficient credit on her credit card. Since the vehicle was impounded she has missed three scheduled meetings and delayed making new ones. She has missed a few days of work, has used taxis, which are costly and has relied on her mother for transportation. Access to public transit is available but inconvenient. To make ends meet, she has borrowed money from her mother and oldest child, who is employed. Since the vehicle impoundment, she has not requested financial help from her boyfriend. She does not know how she will pay the impound fees should she be unsuccessful in her appeal. She finds herself trapped in circumstances that are no fault of her own.
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 and the driver at the time of the impoundment, as owners;
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 on November 19, 2014, of Impaired Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until February 19, 2016.
The Registrar did not call any witnesses.
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 Applicant 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.
Second, the section provides that the Tribunal may not, except in certain circumstances, consider certain factors:
- inconvenience to any person, 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 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.
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
The Registrar’s Agent maintains that there is no doubt the driver was under suspension, as the evidence shows that the person driving the vehicle at the time of the impoundment was suspended.
In regards to the possibility that the car could have been stolen, the Registrar’s Agent stated that the vehicle was being driven by the suspended driver in previous convictions under both the HTA and the CCC in the past three years. She argued that, as the suspended driver is the co-owner of the vehicle, he “borrowed” the vehicle on the evening of the impoundment, but did not steal it. The Tribunal finds that although specific permission may not have been given by the Appellant, she has, on previous occasions, an implicitly granted use of the vehicle, given the pattern of conduct of the suspended driver.
Thus, the Tribunal finds that the criteria for appeal under Section 50.2(3)(a) of the Act were not met and that the vehicle was not stolen at the time of impoundment.
Section 10 of O. Reg. 631/98 is very specific. It provides the Tribunal with the criteria the Appellant must meet to determine if exceptional hardship will result from the impoundment. The Tribunal must first consider whether the Appellant has an alternative to the motor vehicle.
Section 10(4) of O. Reg. 631/98 requires that an owner demonstrate that every reasonable option to the impounded vehicle has been considered. In this case, the Appellant’s testimony established that she has access to transportation alternatives through her mother and the use of a taxi. The Tribunal recognizes that these alternatives are inconvenient and costly to her. It is unfortunate that the Appellant’s financial debt, which pre-dates the impoundment of the vehicle, prevented her from renting a vehicle. Although the vehicle is used in part for work, the Tribunal in considering possible loss on income, notes that the Appellant is still working, receives a weekly salary and her commission income, albeit delayed, will occur in the future. There is no documented proof that any losses incurred are significant and long lasting. The Tribunal is bound to apply the legislation as it is written and the Tribunal cannot, in these particular circumstances, consider inconvenience or the financial impact the impounded vehicle will cause the Appellant.
There is no threat to the health or safety as her community is 911 accessible.
While the Tribunal is sympathetic to the Appellant’s current circumstances, the Tribunal finds that the Appellant has not met the onus under Section 10(3) (3) of the Regulation, namely, “to demonstrate that no alternative to the impounded motor vehicle is available”.
Therefore, the appeal on the grounds of exceptional hardship has failed.
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 for 45 days.
LICENCE APPEAL TRIBUNAL
Geneviève Blais, presiding Member
Released: January 12, 2015