10499 v. Registrar of Motor Vehicles, 2016 CanLII 101782

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2016-11-18

FILE:

10499/MVIA

CASE NAME:

10499 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:

Mary Ann Spencer, Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Steve Grootenboer, Agent

Heard by teleconference:

November 8, 2016

REASONS FOR DECISION AND ORDER

A hearing was held on November 8, 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 DODG RPC (the “vehicle”)

Date of Appeal: October 19, 2016

As a preliminary matter, the Appellant objected to the hearing on the basis that the handwritten Notice to Registrar issued by the police service at the time of the impoundment indicates that it took place at 19:49 on October 14, 2016. Similarly, the “Towed Vehicle Report” completed by the police indicates the vehicle was towed on October 14, 2016 (Exhibit 3). However, the printed Notice to Registrar and the Notice of Impoundment issued by the Ministry of Transportation both indicate the impoundment took place at 20:00 on October 15, 2016 (Exhibit 1). Mr. Grootenboer advised the Tribunal that police officers enter the information into a database and it is submitted electronically to the Ministry which then produces the documents. The Appellant requested that the matter be dismissed based on the date discrepancy.

The Tribunal advised the Appellant that the hearing would continue; a discrepancy in the dates of the documents is a minor administrative error, and it does not mean that the vehicle was improperly impounded. Furthermore, this discrepancy does not cause any unfairness or disadvantage to the Appellant in appealing this impoundment.

ISSUES

The owner appeals on the basis that the motor 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 and his former spouse, S.H., both testified on his behalf.

The Appellant is the father of the suspended driver. In the summer of 2016, he formed a pool maintenance company both to generate extra income for himself and to assist in changing the life of the suspended driver, whom S.H. described as having had “a long run” of legal issues. In addition to the suspended driver, the business employs labourers. S.H. also directly assists in the business, including driving the vehicle to job sites. The impounded vehicle is used to haul a specific type of heavy equipment, which only the suspended driver has the training to operate.

The Appellant lives in an apartment in a large municipality and also owns a home in a small municipality. S.H. lives in the same large municipality but owns a second home, which is rented to students, in a suburban municipality close to where most of the business is generated for the pool maintenance company. A second son, who is attending university, lives with her in the large municipality but also assists with the business and therefore sometimes stays at the suburban home.

S.H. testified that it is has been made well known to the employees of the business that the suspended driver is not permitted to drive the impounded vehicle; either she, the Appellant’s second son, or an employee drives it. In fact, the business pays more for its labourers because they need to have driver’s licences. She noted that while she does not issue specific instructions every morning, all of the employees know that the suspended driver is not to operate the vehicle. She has also issued instructions that the vehicle is to be driven to her home in the major municipality at the end of the business day. When the vehicle is returned to her home, the keys are placed in a safe. In addition, there is a safe at the suburban home. She explained that the keys are kept in this manner to comply with a previous Court directive to keep them inaccessible to the suspended driver.

On the day of the impoundment, the vehicle was parked in the driveway of the suburban home. It had been driven by one of the employees that day and either that employee or the second son was supposed to return it to S.H.’s home in the major municipality. S.H. does not know why it was not returned. S.H. was not present at the time of the impoundment incident. The Tribunal’s understanding is that S.H. heard the details from the suspended driver; she testified that she is too angry with the girlfriend to speak to her. S.H.’s testimony was that she does not know how, but the suspended driver’s girlfriend, wanting to go to the store, obtained the keys and began to drive the vehicle. The girlfriend had been drinking. When the suspended driver saw her take the vehicle, he ran after it to stop her from driving while impaired. Although he knows he is not permitted to drive the vehicle, he pushed her from the driver’s seat and then drove the vehicle himself. This incident, which took place a short distance from the home, was witnessed by the police who then investigated, charged the suspended driver, and impounded the vehicle.

The Appellant testified that his business lost a number of contracted jobs in the days immediately following the impoundment. He stressed that because of the seasonal nature of the business, the contracted jobs could not be done at another time. To rent a replacement vehicle capable of hauling heavy specialized equipment would cost approximately $500 per week, which is unaffordable. He noted that his annual income, verified by his 2015 income tax return (Exhibit 3), was only $20,000. On cross-examination, he agreed that the contracts would have been lost even if the vehicle had not been impounded because his son, who was jailed pending a bail hearing, was the only person able to operate the business’s specialized equipment.

The Appellant is recovering from injuries he sustained in a car accident in 2015. He also suffers from diabetes. As a result, he has a number of medical appointments. S.H. initially testified that none had been missed; the Appellant, however, later testified that he had missed some. The Appellant owns a second smaller vehicle. Both because of his injuries and his larger physical size, he is unable to use this vehicle, which he explained he cannot fit into. Also, the second vehicle is not in his possession but is used by his second son, who normally lives with his former spouse, to drive to university. When the Appellant has medical appointments, he advises S.H. that he requires the use of the impounded vehicle and it is returned to him. He cannot use public transportation because he cannot manage stairs.

The Appellant also indicated that he cannot afford the estimated $2,500 in impoundment fees.

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:

1. 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;

2. 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;

3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment;

4. Copy of the Ministry of Transportation records indicating that the driver at the time of impoundment had been convicted of impaired driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension for life.

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:

1. 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.

2. 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.

3. 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, 3^rd 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:

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.

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, 3^rd 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

The first issue to be considered is whether or not the vehicle was stolen at the time it was impounded.

The Appellant submitted that the vehicle was stolen because his son’s girlfriend did not have either explicit or implied consent to use it, and referred the Tribunal to 10149 v. Registrar of Motor Vehicles, 2016 CanLII 50127 (ON LAT) (“Auto Zone”), a case in which the Tribunal’s decision was that the vehicle had been stolen, having been taken without the consent of the Appellant, a rental company. At the time of its impoundment, the vehicle was being driven by someone other than the individual to whom it had been rented.

Mr. Grootenboer noted that the Auto Zone decision was reversed on reconsideration and submitted that decision for the Tribunal’s consideration. The Tribunal notes that while it is not bound by its previous decisions, they may provide guidance in dealing with similar issues.

In the case currently before the Tribunal, the Appellant has provided his vehicle for the use of the business he established for the suspended driver; it is only returned to the Appellant when he needs it for medical appointments. The Appellant has delegated control of the vehicle to those more directly involved in the business, in particular, to S.H. The Appellant and S.H. are well aware of the status of the suspended driver’s licence and he is not permitted to drive the vehicle. As the Appellant testified he “in no way sanctioned his (son’s) operation of the vehicle.” S.H. testified that her son knows he is not permitted to drive it. All employees of the business have also been made aware that the suspended driver is not allowed to operate the vehicle. There are procedures in place to keep both the keys and the vehicle inaccessible to the suspended driver. There is a safe for the keys at both S.H.’s city and suburban homes and S.H. has given general instructions that the vehicle is to be driven to her city home at the end of the business day.

The evidence is that the Appellant’s vehicle was initially taken from the suburban home’s driveway and driven by the suspended driver’s girlfriend. S.H. testified that the girlfriend did not have permission to use the vehicle and S.H. does not know how she came to be driving it. The Tribunal notes that the keys to the vehicle clearly had to be accessible in the suburban home, notwithstanding S.H.’s testimony that they were to be locked in a safe. However, the fact that it was the girlfriend who initially took the vehicle was only the indirect cause of the impoundment; the vehicle was impounded because the suspended driver took control of it from her and was operating it when it was stopped by police. The Tribunal does question how the suspended driver was able to run after and catch a moving vehicle; the Tribunal only heard about this version of events as hearsay from S.H. since neither the girlfriend nor the suspended driver testified at this hearing. The alternate scenarios, however, are that the vehicle was actually initially taken by the suspended driver himself or that the suspended driver’s girlfriend allowed him to drive the vehicle. Even if the suspended driver’s girlfriend allowed him to use the vehicle, she had no authority to consent on behalf of the Appellant to the suspended driver’s use of the vehicle. Under any scenario, the Tribunal finds that the suspended driver took the vehicle without the consent of either the Appellant or S.H., to whom the Appellant gave responsibility over the vehicle.

There is clear evidence that the suspended driver did not have the Appellant’s consent to drive the vehicle; as outlined above, the Appellant was well aware of the status of his son’s licence. Not only did the suspended driver not have permission to operate the vehicle, but very specific procedures and safeguards were put in place to restrict his access to it to ensure he could not operate it. In his closing statement, Mr. Grootenboer noted the apparent easy access to the vehicle’s keys on the evening of the impoundment. However, the fact that some of the safeguards put in placed apparently failed that evening does not negate the evidence that the suspended driver did not have the Appellant’s consent to drive the vehicle. This is not a case where the Tribunal can find that the vehicle owner could be seen to have condoned the use of the vehicle by the suspended driver, or perhaps gave some kind of implied consent for that use.

The case currently before the Tribunal can be distinguished from the Tribunal’s August 2, 2016 reconsideration decision in Auto Zone submitted by Mr. Grootenboer. In the reconsideration case, the main issue appeared to be that there was “no evidence as to how or why the vehicle came to be operated by a driver with a suspended licence, nor any evidence that the vehicle was operated by such a driver without the renter’s knowledge or permission.” In other words, without that evidence, the Tribunal could not find that the unknown suspended driver in that case had “taken” the rental vehicle. The control of that rental vehicle had been assigned to the renter through the rental agreement.

In the current case, the Appellant delegated some control over the use of the vehicle to S.H., who was more directly involved in the operations of his business. There is enough evidence about the suspended driver and the efforts of the vehicle owner and S.H. to prohibit him from driving the vehicle to make a clear finding that this suspended driver took the vehicle without the consent of the owner or of the person to whom the owner entrusted the vehicle.

The Tribunal therefore finds, as set out in subsection 50.2 (3)(a) of the Act, that the vehicle was stolen at the time it was detained. Having found that the vehicle was stolen, there is no need for the Tribunal to consider the ground 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

_______________________

Mary Ann Spencer, Member

RELEASED: November 18, 2016