Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2015-02-17
FILE:
9315/MVIA
CASE NAME:
9315 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:
Dr. Antoine A. Aouad, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Sanjay Kapur, Agent
Heard by teleconference:
January 28, 2015
REASONS FOR DECISION
A hearing was held on January 28, 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”).
After hearing the evidence and submissions, and pursuant to section 50.2(5) of the Act, the Tribunal ordered the Registrar of Motor Vehicles (the “Registrar”) to release the motor vehicle on January 29, 2015, with reasons to follow.
These are the reasons for the Tribunal’s 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: 2001 PONT GT1 (the “vehicle”)
Date of Appeal: January 6, 2015
All documents were entered into evidence as exhibits with the consent of both parties.
ISSUES
As set out in the Appellant’s Notice of Appeal (Exhibit #2), 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?
Further, though not specifically stated in the Notice of Appeal, but raised through the evidence, the Tribunal will consider the issue of whether the motor 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.
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?
FACTS
Evidence for the Appellant
A summary of the Appellant’s evidence follows.
The Notice of Appeal filed with the Tribunal was entered as Exhibit #2. In the Notice of Appeal, the Appellant states that he often allows his son’s girlfriend to borrow his car, as she is pregnant and needs a reliable car to use.
The Appellant states that his son is not to drive the vehicle and that he has no idea how his son came to be behind the wheel. According to the Appellant, he needs the car to work and his health does not allow him to take public transportation. Further, the Appellant maintains that he cannot afford the costs of the impoundment.
During the hearing, the Appellant reiterated that his son drove the vehicle without permission and that he needs this vehicle as his second car is not reliable. The Appellant testified that he lent the car to his son’s girlfriend, not his son because his son does not have a valid driver’s licence and is not allowed to drive the car.
In cross-examination, the Registrar’s Agent referred to information provided by the local police department about previous incidents involving the suspended driver, and presumably the Appellant. The Appellant adamantly denied ever being in the car while his son was driving.
The Appellant testified to owning another vehicle which he considers unreliable, as well as being aware of his son’s previous offences involving motor vehicles.
The Appellant called his son’s girlfriend as a witness. The witness testified that the vehicle was taken without her knowledge and that of the Appellant.
The witness testified as follows:
the incident was way beyond our control and that
According to the witness, she has told the suspended driver several times that he is not to drive the vehicle. However, on the day in question, she was not home and was not aware that he had taken the vehicle.
The Registrar’s Agent questioned the witness about her plans for the day as well as to where she left the keys. The witness attested that she left the keys on the hook as she did not expect the suspended driver would take them.
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 Dangerous Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension for life.
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.
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 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 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.
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 submissions, the Appellant stated that his son has not been in trouble in a number of years, and this was unexpected behaviour on his part. The Appellant is adamant that he cannot afford to cover the costs of this impoundment, and noted that the car he is currently driving to get to work is not reliable.
In a summary statement, the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar.
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.
As far as exceptional hardship, the Registrar’s Agent quoted section 10 of O. Reg. 631/98 pointing out that the appeal does not meet the criteria as the Appellant owns another vehicle.
The Registrar’s Agent submitted that the Appellant’s argument that the vehicle is unreliable is a conjecture by the Appellant and not supported by evidence.
The Registrar’s Agent submits that since the Appellant has not put forth any other issues, the only matter to be dealt with is exceptional hardship, and he requested the Tribunal to disregard any other arguments that could arise from the evidence.
According to the Registrar’s Agent, the Appellant was well aware of similar incidents that have occurred in the past which suggests that the Appellant continuously allows his son to drive his vehicle. The Registrar’s Agent focused on the witness’s answer that she believes the suspended driver knows how she “feels” about his driving with a suspended licence. The Registrar’s Agent contends that knowing how one “feels” is not the same as telling someone not to drive, and pointed out that this evidence is in contradiction to the Appellant’s statement that he told his son not to drive.
As far as costs of the impoundment, the Registrar’s Agent quoted section 55.1(27) of the Act.
The Tribunal finds it necessary, at this point in its decision, to comment on the questions asked of the Appellant, in cross-examination, regarding his criminal record and any such record of his son. The Tribunal will not comment on what might have been the Registrar’s Agent’s purpose in raising this issue as he did, improper or otherwise. Evidence of this nature was not relevant to this appeal and was totally disregarded by the Tribunal.
The onus is on the Appellant to establish his grounds of appeal as provided in section 50.2(3) of the Act.
The Tribunal found the witness to be straightforward and forthcoming, responding to all questions without any hesitation or evasiveness. The Tribunal accepts her testimony as credible.
The Tribunal also accepts the Appellant’s testimony that he did not give his son permission to drive, and accepts the evidence of the witness who made it clear that she has never given the suspended driver permission to drive. The witness’s statement that she “feels” the suspended driver knew he was not to drive, in no way contradicts the statements that the suspended driver was not given permission to drive.
The Registrar’s Agent submitted as part of its documentary disclosure, an email, from a police officer, summarizing the Appellant’s, and his son’s interaction with the local police department regarding incidents in 2008 and 2009.
Apart from its questionable relevance to the issues before the Tribunal, none of these were sworn statements nor did the police officer give evidence at the hearing. The Tribunal did not admit this document into evidence. The Tribunal must decide the issue on the evidence properly before it.
Based on the evidence heard, the Tribunal finds that the criteria under section 50.2(3)(a) of the Act has been met.
Given that the Tribunal finds in favour of the Appellant with respect to section 50.2(3)(a), there is no need for the Tribunal to decide the issue 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 ordered the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Dr. Antoine A. Aouad, Member
Released: February 17, 2015