Licence Appeal Tribunal
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.
DATE: 2016-11-21
FILE: 10509/MVIA
CASE NAME: 10509 v. Registrar of Motor Vehicles
Appellant: 10509
Respondent: Registrar of Motor Vehicles
ADJUDICATOR: Mary Ann Spencer, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: November 17, 2016
REASONS FOR DECISION AND ORDER
A hearing was held on November 17, 2016, 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 orders the Registrar to release the motor vehicle.
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: 2005 MITS LRL (the “vehicle”) Date of Appeal: October 31, 2016
ISSUES
The Notice of Appeal (Exhibit 2) does not require the Appellant to specify the grounds for appeal. Based on the Appellant’s testimony, the Tribunal has considered the Appellant’s appeal on two grounds: that the 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 sections 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 is a single mother who lives with her two year old son in a mid-sized town. She has a number of medical issues; she suffers from anxiety, panic disorder, depression, schizophrenia and insomnia. She has also been diagnosed with cervical cancer. The Appellant is currently not working. She described herself as being on “medical leave” but explained that this was not formal leave. Rather, she had been unable to hold down a job for approximately two years because of her medical issues. She previously worked as a housekeeper and a car wash attendant. After she became unable to hold a steady job, she did some occasional work cleaning houses. She was able to live on the income she earned because she lived with her mother until October 2015, when she was given a place in not-for-profit housing.
In October 2016, the Appellant began to receive social assistance benefits from the Ontario Works program. She receives $585 per month from which she pays $237 rent and her $200 car payment, as well as her car insurance. In addition to the Ontario Works benefit, she receives a monthly child benefit payment of $540.
The Appellant normally uses her vehicle to reach her medical appointments and for household errands such as getting groceries. She also indicated that she used her vehicle to do occasional odd jobs such as cleaning houses for some family members and picking up groceries for older people who did not drive. She noted that her cleaning supplies are currently locked in the impounded vehicle.
The Appellant testified that on October 23, 2016, she and the suspended driver, who was her boyfriend of three weeks, had travelled to a mid-sized city approximately 30 km from her home in order to have her vehicle serviced. They visited her friend, M.S. When M.S. saw the Appellant, he told her she looked tired and suggested that she rest. She and the suspended driver both laid down and the Appellant fell asleep. She was awakened by M.S. when he received a phone call from the suspended driver who had passed the phone to a police officer. The officer asked her if she had the ownership and insurance certificates for her vehicle. This is how she learned her vehicle had been stopped and was being impounded. Accompanied by M.S., she went to the scene of the impoundment and gave police the information. She told one of the officers there that she had been sleeping when the vehicle was taken by the suspended driver.
The Appellant indicated that the keys to her vehicle had been in her purse which was zippered up. She was not aware that the suspended driver did not have a licence. She stated that he had never driven her vehicle before that morning and she has no idea why he took the vehicle. He has called her once since the impoundment but she refused to speak to him at any length. Asked if he would be able to provide her with any assistance, she indicated that she doubted he would since he is currently in jail.
The Appellant has three physicians, none of whom are located in the town in which she lives. She has a family physician but testified that she sees him primarily when her son is ill, which she estimated to be approximately every three months. The Appellant herself is being treated regularly by two specialists, both of whom are located in the mid-sized city approximately 30 km from the town in which the Appellant lives. She has regular monthly appointments, at which her prescriptions are renewed, with her psychiatrist. She was able to keep an appointment scheduled for October 24, 2016, the day after the impoundment, by taking a taxi which cost her $70 for the return fare. She borrowed the money from her friend M.S. However, she cancelled an appointment which was scheduled for November 4, 2016 because she could not get to it. The psychiatrist phoned her prescriptions into a pharmacy located in the city in which he practices. To obtain her prescription, the Appellant took a taxi at the cost of approximately $40. She explained that because the taxi driver knew her, he did not charge her the full return fare of $70. The Appellant has not yet rescheduled the appointment.
The Appellant is also being treated by a specialist for her cancer and has appointments every twenty to thirty days. She had an appointment scheduled on October 28, 2016, which she had to cancel. Her next appointment is scheduled for November 21, 2016; she does not know how she will get to it. Her mother might be able to drive her but would have to take time off work and lose pay to do so. If her mother cannot take her, she will cancel the appointment.
In addition to her own appointments, the Appellant normally drives her grandmother to regular medical appointments at a hospital in a larger municipality a further distance from her home. She also drives her mother to a regular medical appointment which is also located in a town outside of the one in which she lives. The Appellant explained that her mother receives injections for pain medication and is unable to drive herself afterwards. Her mother, who lives approximately a twenty minute walk from the Appellant, does own a vehicle; however, because the Appellant is not insured to drive her mother’s vehicle, the Appellant uses her own vehicle when she drives her mother. Her mother’s next appointment is scheduled for a date in early December.
The Appellant testified that she cannot afford to take taxis to her medical appointments. She has looked into the availability of inter-city transportation. There is a bus which would take her from her town to the city where her doctor’s offices are and the return fare is less than $8; however, she would then have to take a taxi at the cost of approximately $12 to reach the offices from the bus stop. Also, the inter-city bus schedule means that she would have to arrive two hours before her scheduled appointment with her psychiatrist. And, she would have to take her two year old son with her; something she indicated would be difficult to do because of the challenge of keeping him quiet for that length of time. Asked if she could not use the city’s municipal transit to reach her doctor’s office from the inter-city bus stop, the Appellant indicated that there was a bus but that it would be extremely difficult to use with her toddler.
The Appellant has had some assistance from her family since her vehicle was impounded. Her mother has assisted by helping the Appellant with groceries. The Appellant noted that she first took a taxi to get groceries. However, at $16, it cost her more than she had anticipated and she did not have enough money to buy diapers for her son and her mother had to purchase them. The Appellant noted that her mother has sometimes called in sick to her own job in order to help the Appellant get groceries. The Appellant’s aunts have driven her grandmother to the hospital. Finally, the Appellant testified that she did not have many friends; there was no one else that she could ask for assistance.
M.S. testified on the Appellant’s behalf. He confirmed that he had received the phone call from the suspended driver the morning of the impoundment. The suspended driver had taken the Appellant’s phone with him and used it to call M.S. After the suspended driver spoke to M.S., the police came on the line and spoke to the Appellant. Because the phone was on speaker, M.S. heard the conversation. M.S. also testified that he had seen the suspended driver leave his home earlier with the vehicle. The suspended driver told M.S. that he would be back soon. M.S. has known the suspended driver for approximately 3 to 4 months. He did not think anything was amiss when the suspended driver took the Appellant’s car; rather, he assumed the suspended driver had the Appellant’s permission to use it. The Appellant was sleeping when the suspended driver left with the vehicle. M.S. also testified that he has lent an estimated $150 to the Appellant to help her out since the impoundment; however, he has no more to lend her.
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 driving while disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until November 26, 2023.
Constable Kevin McGrath of the regional police service testified on behalf of the Registrar. Constable McGrath was one of the officers who responded to the impoundment incident. Referring to his notes, he testified that the Appellant arrived at the scene at 9:10 a.m. and gave him the ownership and insurance certificates for the vehicle. He asked her if the suspended driver had her permission to drive the vehicle and she said that he did. He confirmed that he was not the only officer at the scene and it was possible the Appellant had spoken to another officer as well.
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 it 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.
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. In that context, 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” and “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
Issue 1: Stolen
The first issue to be considered is whether or not the vehicle was stolen at the time it was impounded.
The evidence of both the Appellant and witness M.S. is that the vehicle was taken by the suspended driver while the Appellant was sleeping. This evidence supports that the vehicle was taken without the Appellant’s knowledge; however, it is not sufficient to prove that it was taken without her consent. The Appellant may not have been in a position to give the suspended driver her consent to use the vehicle at that specific time when she was asleep. However, the suspended driver may have believed he had her implied consent. Even though the Appellant was not aware of the status of her then-boyfriend’s licence, and he had not driven her vehicle before, there is no evidence that she had told him that he was forbidden from driving her vehicle.
M.S. testified that he thought nothing was amiss when the suspended driver left his home with the vehicle and told him he would be back shortly. While M.S.’s assumption that the suspended driver had the Appellant’s permission to drive the vehicle does not comprise evidence, his observations do suggest that there was nothing unusual or furtive about the suspended driver’s behaviour when the vehicle was taken.
Constable McGrath testified that the Appellant told him that the suspended driver did have her permission to drive the vehicle. While the Tribunal acknowledges that the Appellant could have told the officer this in order to avoid charges of theft being laid, the Appellant herself did not challenge his evidence other than to indicate that she had told another officer at the scene that she had been sleeping when the vehicle was taken. As noted above, however, the fact she was sleeping supports that the vehicle was taken at that time without her knowledge, and not that it was taken without her consent.
There is insufficient evidence in this case to prove that the suspended driver had taken the vehicle without the Appellant’s consent, whether that consent may have been express or implied. The Tribunal therefore finds that the vehicle was not stolen in accordance with section 50.2(3)(a) of the Act.
Issue 2 – Exceptional Hardship
With respect to the issue of exceptional hardship, section 10 of Regulation 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 proven she has no alternative to the impounded motor vehicle and, if she has no alternative, whether the impoundment will result in a threat to her health or safety.
Section 10(4) of Regulation 631/98 requires that an owner must demonstrate that every reasonable option has been considered that could eliminate or mitigate any threat or loss to the person, including using another vehicle or making arrangements to do without any vehicle during the impound period.
The Appellant testified that she normally uses her vehicle for household errands such as getting groceries, for occasional odd jobs such as cleaning house for family members and for reaching medical appointments. The evidence is that she has investigated alternative options to the use of the impounded vehicle and has, in fact, used them in some instances. The Appellant has twice used a taxi service; once to travel to a scheduled medical appointment and once to pick up prescriptions. Her mother has assisted her with grocery shopping.
The Appellant has been diagnosed with both mental health issues and cancer and has regularly scheduled medical appointments with specialists who are located in a mid-sized city approximately 30 km from her home. She has been able to keep one appointment with her psychiatrist; in that case, she took a taxi at the cost of $70 return fare. She cancelled a second appointment and was able to pick up her prescriptions phoned into a pharmacy in the same mid-sized city at the reduced cost of $40 return fare because the taxi driver happened to know her. However, the evidence is that the Appellant had to borrow money in order to use these taxis; M.S. testified that he had lent her approximately $150 since the impoundment. The Appellant has also cancelled appointments with the specialist treating her cancer which she testified are scheduled every twenty to thirty days.
The question before the Tribunal is whether or not the options available to the Appellant are reasonable.
The Appellant has a very modest income from Ontario Works and the federal child benefit and is the sole support of her two year old son. The evidence is that her disposable income is less than $700 per month after she pays her rent and car payment. At a regular return fare of $70, taxi fares to reach only two appointments monthly represent 20% of that disposable income. Therefore, the Tribunal finds that the use of taxis is not a reasonable alternative for the Appellant. There was no evidence that the Appellant had investigated the possibility of renting a vehicle; however, based on the Appellant’s modest income, the Tribunal finds that it is not necessary for the Appellant to have done so to prove that option would not be reasonable.
Mr. Kapur canvassed the availability of public transit with the Appellant. The evidence is that she has thoroughly investigated this option. She testified that the return fare would be $8 if she used the inter-city bus to reach her medical appointments. It would cost an additional $24 to take a cab from the bus stop to the doctor’s office and back. While using municipal transit instead of a cab would reduce that cost, the Appellant testified that this would be difficult for her to manage with her toddler. And, the inter-city bus schedule would require her to arrive at least two hours before her appointment. Mr. Kapur submitted that this would only be an inconvenience. The Tribunal agrees that using public transit would be an inconvenience in most cases. However, it rejects that argument in this case where the Appellant is under the care of two physicians for conditions that include anxiety and panic attacks and where the transit trip would require significant extra time and the use of multiple buses to keep the cost at a level affordable to her. In these specific circumstances, the Tribunal finds that public transit is not a reasonable option.
The Tribunal notes that the Appellant has had some assistance from her mother who owns a vehicle and does not live far from the Appellant. However, the evidence is that this option is not one which is readily available; in order to drive the Appellant to her medical appointments, her mother would have to call in sick to her own work and would lose pay. The Tribunal therefore finds that this option is not reasonable; it places the impact of the impoundment on someone other than the owner.
Based on the evidence set out above, the Tribunal finds that the Appellant has no alternative to the use of the impounded vehicle. She has met the test set out in section 10(4) of Regulation 631/98. She has demonstrated that she has considered “every reasonable option that could eliminate or mitigate any threat or loss to the person, including using another vehicle or making arrangements to do without any vehicle during the impound period.” The Tribunal also finds that there is a threat to the Appellant’s health and safety. The evidence is that the Appellant has a number of significant health issues, and since the impoundment of her vehicle, the Appellant has been unable to keep all of the appointments scheduled with her psychiatrist and has cancelled and not been able to reschedule appointments with the specialist who is treating her cancer. The Tribunal therefore finds that the loss of her vehicle will result in exceptional hardship as set out in section 50.2(3)(d) of the Act.
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
Mary Ann Spencer, Member
RELEASED: November 21, 2016