Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 10532/MVIA
CASE NAME: 10532 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: Sanjay Kapur, Agent
Heard by teleconference: December 2, 2016
REASONS FOR DECISION AND ORDER
A hearing was held on December 2, 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: 2016 MITS OUT (the “vehicle”)
Date of Appeal: November 14, 2016
ISSUES
The Notice of Appeal (Exhibit 1) 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 evidence of the Appellant comprised her testimony and that of her husband, the suspended driver in this case.
The Appellant lives with her husband and three children in a small community in eastern Ontario. The Appellant is currently on maternity leave; her two older children are both in school. The Appellant’s husband is the stepfather of the two oldest children. The Appellant shares custody of her middle child with the child’s father; the child lives at the Appellant’s home every other week.
The Appellant testified that the vehicle was taken by her husband without her knowledge or her consent. On the night of the impoundment, her husband was at his sister’s home which is in a small city located approximately 70 km from the Appellant’s home. That night, the Appellant woke up to feed her baby. She also took the dog outside and noticed that her new vehicle, purchased only 5 days earlier, was missing. She decided to call police but before she could do so, the police arrived at her door and told her that her husband had been detained. She testified that while she was sleeping, her husband’s sister had dropped him off, he had taken the spare car key from a cupboard where the family keeps all of its spare keys and driven the vehicle.
The Appellant testified that she is well aware that her husband does not have a valid driver’s licence and that he knew he was not allowed to drive. She has told him on numerous occasions not to drive. Further, she had made it clear that no one else was allowed to drive her brand new vehicle. She explained that in 2011, there had been a previous incident when her husband drove her vehicle while disqualified. She, her husband and her husband’s two younger brothers were on an excursion a short distance from town. However, she hurt herself and was unable to drive. Because the two brothers were both too young to drive, she allowed her husband to drive the vehicle. However, it was pulled over and the matter came before the courts. She stated that it has “always been clear that he couldn’t touch my car”. To reinforce that he knew he could not drive, the Appellant advised that only the week before the impoundment, her husband had been to see a lawyer to investigate if there was any way he could obtain permission to drive for work purposes only.
The Appellant does not know why her husband took the vehicle the day of the impoundment. She testified that he was under the influence of alcohol and was experiencing some stress at work. She stated she can only assume that once he became intoxicated, he “threw caution to the wind”.
The Appellant testified that she has found it difficult to manage without her vehicle, particularly with respect to her middle child getting to school the weeks she is at the Appellant’s home. The child’s school is located 20 km from the Appellant’s home. Because the school is in a different district, there is no school bus service available. The Appellant investigated various options. A taxi would cost $60 return fare or $300 a week, which the Appellant indicated was unaffordable.
The Appellant’s current income is the approximate $1700 a month she receives from Employment Insurance while on maternity leave, which is approximately $1,000 less than her working income. The family’s monthly rent is $1650. The payment for the new car is $700 a month. The Appellant noted that her husband was jailed for two weeks after the impoundment and lost his job which represented approximately $3,000 monthly income. However, she testified that her husband was attending a training session for a new job on the day of the hearing. She did not know if the job was guaranteed or how much he might be paid.
The Appellant also testified that borrowing a vehicle is not an option. Neither her parents nor her husband’s parents own vehicles. Her husband’s sister does own a vehicle but needs this for her own family. And, both the Appellant’s and her husband’s families live in the small city, approximately an hour’s drive away.
The Appellant did rent a vehicle for one week while her middle child was at her home in order to drive her to school. She testified that she borrowed money from her mother to pay the approximate $200 rental fee. Asked on cross examination if she could borrow any other funds from her family, she testified that she could not; her mother works part time only and her father is in receipt of a disability pension. The Appellant indicated she has no idea how she will pay the impoundment fees and testified that she would have to investigate her options, stating that it was more important to pay for food and shelter than to get her vehicle back. She is also considering ending her maternity leave early to increase her income; but she noted that her workplace is located 20 km from her home and she needs a vehicle to reach it. There is no public transit where she lives.
With respect to household errands and other uses of the vehicle, the Appellant can walk, with her baby in a stroller, to a local store to get the groceries she can manage to carry. The family doctor is not located in the community where the Appellant and her family live; however, there have been no medical appointments during the period of the impoundment other than one for her children’s regular checkups at an optometrist, which she has postponed.
The Appellant testified that in order to raise funds, she and her husband are selling some of their belongings on Kijiji. The Appellant did manage to make both her November rent and car payments, but stated she did not know how she would pay her December rent. She stated that the family will need to move and she has begun to look for less expensive apartments.
The Appellant’s husband testified that he has never had permission to drive the Appellant’s vehicle. He agreed, however, that he did have permission to drive in 2011 when his wife hurt herself. He was aware of the location of the spare key and testified that he has used the key to open the vehicle in order to load it. Asked if the Appellant had taken steps to discourage him from ever driving, he testified that he had been told not to and it was “absolutely clear”.
On the night of the impoundment, the Appellant’s husband came back from his sister’s and took the spare car key while the Appellant was sleeping. Asked why he took the vehicle, he stated that he was drinking and was not thinking straight. Since being released on bail, the Appellant’s husband has been attending AA meetings and looking for work. On the day of the hearing, he called in from a training session he was attending for a job which will start the following week at approximately two thirds of the salary of his previous job.
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 criminal negligence causing death under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension for life.
Sergeant Daniel Lalonde of the Ontario Provincial Police testified on behalf of the Registrar. Sergeant Lalonde indicated that he was not the investigating officer and was speaking from memory, not from notes.
Sergeant Lalonde testified that he contacted the Appellant after her husband asked him to notify her that he was being taken to hospital. He met with the Appellant when she arrived at the police station to collect property which had been in the impounded vehicle. He stated “I’m going to guess” it was a cell phone or a purse.
The Appellant told Sergeant Lalonde that she had been sleeping but after awakening and discovering her vehicle was missing, was about to call the police when they arrived at her door to tell her the vehicle had been impounded. He asked her if she wanted to report the vehicle stolen or taken without her consent and she said no. The Appellant told Sergeant Lalonde she was aware that her husband was not allowed to drive. Sergeant Lalonde asked her if her husband had his own set of keys to the vehicle. She told him that she had not given her husband permission to drive but that he did move the vehicle on the property. On cross-examination, the Appellant challenged the Sergeant as to whether or not he recalled that she had in fact told him that her husband sometimes loaded items into the vehicle.
Sergeant Lalonde further testified that there have been at least two previous incidents when the Appellant’s husband drove while disqualified, the first of which caused two deaths. The husband had been driving the Appellant’s vehicle in the second incident, which occurred “within the last few years”.
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 her husband, the suspended driver, is that the vehicle was taken by the husband, after he unexpectedly returned to their home, while the Appellant was sleeping. In this regard, the Tribunal notes that the Notice to Registrar indicates that the vehicle was pulled over at 23:01. While this evidence supports that the vehicle was taken without the Appellant’s knowledge, it is not sufficient to prove that it was taken without her consent. However, in this case, the Appellant’s evidence, and that of her husband, was that she did not allow him to drive her vehicle. The Appellant was specific that not only was he not allowed to drive but that, after purchasing the impounded vehicle, she had been clear that no one other than herself was allowed to drive it.
The Tribunal finds that the Appellant’s testimony was credible. Her testimony was both consistent and given in a straightforward manner throughout what was a lengthy hearing. The Tribunal notes that the Appellant’s version of events was consistent with what Sergeant Lalonde testified she told him almost immediately after the impoundment.
The Tribunal finds that the fact that a spare key was accessible to the husband and that he used the key to open the vehicle to load things into it is not relevant and does not amount to the Appellant giving her husband implied consent to drive the vehicle. In this regard, Sergeant Lalonde testified that the Appellant told him she allowed her husband to move the vehicle on the property. The Appellant denied telling him this. The Tribunal notes that the Sergeant’s testimony on this point is no more reliable than the Appellant’s. He took no notes and at one point stated “I’m guessing”. And, even if the Appellant did allow her husband to move the vehicle on the property that is not evidence that she allowed him to drive it anywhere else.
There is evidence that the Appellant did allow the suspended driver to operate her previous vehicle on one occasion in 2011. The Appellant’s evidence is that she did so because she herself was injured and could not drive. The Tribunal cannot infer from this incident that the Appellant subsequently allowed her husband to use her vehicle; if anything, the fact that the 2011 incident resulted in more charges against her husband would be more likely to act as a deterrent against any future use of her vehicles.
The Tribunal notes that while it is not bound by its previous decisions, they may provide guidance in dealing with similar issues. In a number of previous cases, the Tribunal has noted that both the lack of relationship between the owner and driver and the laying of charges are indicia that support that a vehicle is stolen.
Mr. Kapur submitted that the Appellant’s allegation that the vehicle was taken without her consent was not credible; Sergeant Lalonde’s testimony is that she refused to lay charges when given the opportunity to do so. The Tribunal, however, notes that it is not necessary for charges to be laid to prove a vehicle is stolen. The Appellant’s husband was incarcerated when she met with Sergeant Lalonde. In this case, the Tribunal does not find it unusual that the Appellant would not want to add any more charges to what her husband already faced.
Mr. Kapur further submitted that “a vehicle driven without permission is not a vehicle which is stolen”. In this regard, he referred the Tribunal to its August 2, 2016 reconsideration decision of 10149 v Registrar of Motor Vehicles, 2016 CanLII 50127 (ON LAT) (“Auto Zone”). The Tribunal’s decision in Auto Zone 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. On reconsideration, the Tribunal’s decision was that the vehicle was not stolen.
Mr. Kapur submitted that the Tribunal’s finding in the August 2, 2016 reconsideration decision, that the Tribunal erred in its original decision in finding “stolen” amounts to use of property contrary to the owner’s instructions, is independent of the fact situation of the Auto Zone case. The Tribunal disagrees. The Tribunal’s decision cannot be separated from the fact situation. In its reconsideration decision, the Tribunal found 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. The only evidence the Tribunal heard was that the vehicle was used contrary to the Appellant’s instructions”. Without that evidence, the Tribunal could not find that the unknown suspended driver in that case had “taken” the rental vehicle. The Tribunal then went on to find that the Tribunal had erred in finding the vehicle stolen in its original decision.
In the current case, based on the evidence set out above, the Tribunal finds that the vehicle was taken without either the express or implied consent of the Appellant. The Tribunal therefore finds that the vehicle was stolen in accordance with section 50.2(3)(a) of the Act. There is therefore no need to consider 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 orders the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
RELEASED: December 6, 2016