Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10086/MVIA
CASE NAME: 10086 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.
10086 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: March 30, 2016
REASONS FOR DECISION
A hearing was held on March 30, 2016, at Toronto, Ontario, 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 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: 2000 Buick LLF (the “vehicle”)
Date of Appeal: March 10, 2016
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #1), 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 testified that she has no means of transportation other than the impounded vehicle. She is 75 years old and finds it difficult to walk. She has had hip surgery and, approximately 3 weeks ago, also had hernia surgery. The Appellant lives in a small municipality and the local bus, which is not always reliable, is approximately a ten minute walk from her home which she stated she could not make.
The Appellant testified that she needs to use her vehicle to drive to medical appointments. Since the impoundment, she has had to cancel two appointments, both of which were scheduled in larger municipalities. These appointments were for March 15, 2016 and March 24, 2016. Both can be rescheduled but the Appellant has yet to do so, not knowing when she would have her vehicle. Asked if she was aware that her municipality had a bus service for persons with mobility issues, “Handicap Lift”, the Appellant stated she was not. She then asked if she would be allowed to use the service if her grandchildren were accompanying her.
The Appellant has custody of her two young grandchildren who take a school bus to get to and from their school which she estimated is approximately 5 kilometres from her home. However, the younger child has a heart condition and has frequent colds. She estimated that she is called approximately twice a month to pick him up from school because he is sick. And, a month ago, he was hospitalized after which he recuperated at home for a week. Asked if she could take taxi to pick him up, she agreed she could do that once, but noted it would be expensive if she had to do it more frequently, stating she lives on a pension. There is 911 emergency service available in the municipality in which she lives.
The Appellant was at home sleeping when her vehicle was taken by her son, the suspended driver in this case. The son lives just outside of the municipality in which the Appellant lives. He visits his children at her home and assists her with tasks such as shovelling snow. On the day of the impoundment, he was visiting with a friend. He asked to borrow the Appellant’s vehicle and she refused. He left with his friend and the Appellant, who was not feeling well, went to bed. She was awakened by police who told her that her vehicle had been impounded. The Appellant testified that she keeps her car keys in her purse and that she does not normally lock her house doors. She assumes that her son snuck into the house to take her keys. She testified that this is the first time this has happened and speculated that it may have occurred because her son had been drinking.
Asked about two impoundments of a 2003 Hyundai she previously owned, the Appellant testified that she was only aware of the impoundment which occurred in 2013. She testified that this occurred in another municipality where her son and his family lived. She had lent her vehicle to, and left it with, her daughter-in-law, whom she trusted. However, her son took the vehicle. She noted that her daughter-in-law sometimes needed a vehicle to take her grandson to a hospital in a large municipality. The Appellant was able to leave her vehicle with her daughter-in-law because at that time, the Appellant and her husband had a second vehicle. However, the second vehicle was sold after the death of the Appellant’s husband.
The Appellant did not appeal the 2013 impoundment because her daughter-in-law had been in an accident and the vehicle was not worth repairing. The Appellant insisted she had no knowledge of a 2010 impoundment of the same vehicle which also occurred in the municipality where her son and daughter-in-law were living.
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 3 below;
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 for life.
Copy of the Ministry of Transportation Notice of Impoundment dated May 26, 2013 with respect to a 2003 Hyundai.
Copy of the Ministry of Transportation Notice of Impoundment dated July 12, 2010 with respect to a 2003 Hyundai.
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 Tribunal is considering the Appellant’s appeal on the basis of sections 50.2(3)(a) (c) 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.
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 Appellant has appealed on the grounds that the vehicle was stolen at the time it was impounded and that its loss will result in exceptional hardship.
Mr. Grootenboer noted that the Appellant cannot appeal on the grounds of exceptional hardship because the Act prohibits this ground of appeal when there have been previous impoundments of a vehicle owned by the same owner.
Section 50.2(4) of the Act states:
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.
While the Appellant denied knowledge of one of the two previous impoundments, the documentary evidence is that a 2003 Hyundai previously owned by the Appellant was impounded on July 12, 2010 and on May 26, 2013. Therefore, the ground of exceptional hardship is not available to the Appellant and the Tribunal can only consider her appeal on the ground that her vehicle was stolen at the time it was impounded.
With respect to the grounds of “stolen”, Mr. Grootenboer submitted that because the Appellant kept her keys in her purse, it can be “safely assumed” that her son knew where they were. The Appellant took no steps to protect herself even though she had another vehicle impounded on two previous occasions when her son drove it. He argued that there is “implied consent of use”.
Mr. Grootenboer referred the Tribunal to its decision in 9796 v Registrar of Motor Vehicles, 2015 CanLII 72214 (ON LAT), in which the appeal failed on the grounds of “stolen”. In that case, the Appellant’s vehicle had already been impounded three times when her grandson drove it. However, the Tribunal notes that case can be distinguished from the one currently before the Tribunal. In 9796, the Appellant’s car keys were kept “easily accessible”, and the Appellant’s grandson lived with her.
In the case before the Tribunal, the Appellant’s son, the suspended driver, does not live with her and the two previous impoundments both occurred in another municipality which is a significant distance from the Appellant’s home. The Appellant had loaned the car to her daughter-in-law and had returned to her own home; the suspended driver did not obtain the keys from the Appellant on those occasions. In fact, the Appellant insisted that she had no knowledge of the first impoundment.
The Appellant testified that on the day the vehicle was impounded, her son had been visiting her with a friend and had asked to use her vehicle. After the Appellant refused, her son and his friend left, and the Appellant, who did not feel well, went to bed. She did not give her son permission to drive her vehicle and only became aware it had been taken when she was awakened by police.
While her son now lives just outside of the municipality where the Appellant lives he visits his children at her home, and may well have been aware of where the Appellant keeps her keys, the Tribunal finds this is insufficient reason to conclude there is “implied consent of use”. Nor does the Tribunal find it unusual that the Appellant, who lives in a small municipality, does not lock her doors at night. The Appellant testified that her son must have “snuck back into the house” to take her car keys. She speculated that he did this because he had been drinking and stated it had never happened before.
The Appellant’s testimony in this hearing was forthright. The Appellant testified that her vehicle was taken without her consent. The Tribunal notes that the Appellant testified she had surgery approximately three weeks ago. Therefore, the Tribunal does not find it unreasonable that on the day of the impoundment she was not feeling well, went to bed and did not hear her son re-enter and take her keys after she denied him use of her vehicle. The Tribunal therefore finds that the Appellant’s vehicle was taken without her consent and therefore was stolen in accordance with section 50.2(3) (a) 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 vehicle.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
RELEASED: March 31, 2016