Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 10053/MVIA
CASE NAME: 10053 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
10053 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Geneviève Blais, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: March 10, 2016
REASONS FOR DECISION AND ORDER
A hearing was held on March 10, 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 “Act”).
The Tribunal ruled to confirm the impoundment pursuant to section 55.1(3) of the Act. As a result, the Appellant’s motor vehicle will remain detained at the impoundment facility for 45 days.
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: 2007 MAZD M31 (the “vehicle”)
Date of Appeal: February 19, 2016
ISSUES
As set out in the Appellant’s Notice of Appeal (Exhibit #2), the owner appeals on the basis the vehicle was stolen 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
A summary of the Appellant’s evidence follows.
The Appellant maintains that the loss of the vehicle will cause exceptional hardship as he requires the vehicle to attend weekly medical appointments. Since the impoundment he has missed three of five scheduled appointments. Although there is another vehicle in the home, his wife requires it on a daily basis for her employment. She delivers flyers and newspapers. She has only been able to drive him on two occasions as she has difficulty finishing her deliveries early enough in the day. The Appellant stated he has problems with his back and has been off work for the past two years and attends appointments for weekly injections of pain medication.
On the evening of the impoundment, the Appellant stated that he was asleep at the time and his wife woke him to inform him that a police officer had called to speak to him and that the officer would be coming to their residence to impound the vehicle. The police officer had informed the Appellant’s wife that the vehicle was being investigated for speeding and driving in a dangerous manner. Appellant stated that he thought the police officer was mistaken as “no one” in the family is allowed to drive the vehicle without his or his wife’s permission and the keys for the vehicle are kept on a hook inside his bedroom. He stated that he knew the suspended driver was at the house visiting his daughter and when informed that the vehicle was driven by his daughter’s boyfriend, the Appellant concluded that the suspended driver entered the bedroom and took the keys to drive the vehicle.
In cross-examination, the Appellant was asked as to how he knew that the suspended driver entered his bedroom and took the keys to the vehicle, given that he was asleep at the time. The Appellant changed his testimony and agreed he could not attest to that fact and was confused about the evening.
In response to further questions, the Appellant agreed that his daughter uses the vehicle from time to time; however she must have approval from one of the parents. When asked if his daughter had his permission to drive the vehicle on the evening of the impoundment, he stated no as he was sleeping and he further insisted that she had not obtained permission from his wife. When asked by the Agent for the Registrar if his statement could be verified, the Appellant indicated that his wife was present and would be willing to testify on his behalf.
The Appellant’s wife testified that she had given permission to her daughter around 4:45 p.m. to use the vehicle to go to the grocery store. She maintained that her daughter returned the car approximately 30 minutes later and her daughter remained at the house the entire evening. The vehicle keys were returned to the hook in the bedroom. She stated she did not see the suspended driver that evening and she had no idea if he was in the house. She was adamant that both sets of keys to the vehicle were on the hook in the bedroom at around 8:00 p.m. when she decided to take a shower and retire for the night.
The Appellant’s wife further acknowledged that she has known the suspended driver for approximately eight months, since he started dating her daughter. She described him as having “not a great background, not allowed to drive and a lot to do with the police”. She admitted that she knew he had driven the vehicle on one occasion in the past. However, she insisted she had warned him never to do so again.
The Appellant concluded his testimony in stating that he resides with his wife and four children who range from 22 and 26 years of age. Two of the children are employed. The family lives from paycheck to paycheck and the cost of the impound fees will add more financial hardship. He cannot rely on his children to help his wife with her delivery schedule to allow her to drive him for his medical appointment once a week. Although one son helped on one occasion, the Appellant candidly stated that his children show no desire to help. Accordingly, the Appellant has cancelled the scheduled medical appointments and plans to attend them on an ad hoc basis until the outcome of his appeal. Although public transportation is readily accessible, he has chosen not to use it as the journey is too long and the bus is uncomfortable.
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:
A copy of the Ministry of Transportation records indicating that, among other things, the impounded motor vehicle is registered in the name of the Appellant at the time of the impoundment, 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;
A copy of the Notice forwarded to the Registrar regarding the impoundment;
A 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 February 26, 2017.
PC Weber and PC Ball, the officers who were involved with investigating the speeding vehicle and the impoundment of the vehicle, testified on behalf of the Registrar. The following is a summary of their evidence.
At 8:29 p.m. on the evening of the impoundment, as a result of a complaint of a car travelling at a high speed, the police investigated.. PC Ball responded to the dispatch and located a vehicle travelling at 160km per hour in a 60km zone, driving erratically with no rear lights. He pursued the vehicle and activated his light to stop the vehicle, all to no avail. He returned to the police station and verified the vehicle was registered to the Appellant. As he was required to attend to other duties, he turned over the investigation to PC Weber.
At approximately 8:48 p.m. PC Weber attended the Appellant’s residence to speak to the Appellant. The vehicle was not at the house. One of the Appellant’s sons answered the door and he told PC Weber the Appellant was sleeping. PC Weber found the son uncooperative and after some insistence he spoke to the Appellant’s wife who had just finished having a shower. She indicated that her daughter was out with the vehicle. PC Weber explained the police concerns over the Appellant’s vehicle which was observed to be speeding and driven erratically. When he indicated there was a possibility that her daughter was driving the vehicle, the Appellant’s wife quickly responded and said to him “I can guarantee that it was my daughter’s boyfriend driving as he won’t let her drive; he is a control freak; it is routine that he drives when they go out”. She provided some information on the suspended driver and at the request of PC Weber tried to reach her daughter by cell phone, but was unsuccessful. She told PC Weber that as soon as she heard from her daughter she would call him.
PC Ball resumed the investigation at 9:30 p.m. He telephoned the Appellant.. When told of the investigation, the Appellant expressed surprise that the vehicle could be involved, insisting that it was parked in his driveway. While on the phone he checked the driveway and indicated he could not see the vehicle. At 10:00 p.m. PC Ball arrived at the Appellant’s residence and the vehicle was parked in the driveway. The Appellant’s wife answered the door and yelled for her daughter and the suspended driver who were in the house at the time. PC Ball stated that the suspended driver initially denied driving the vehicle. When pressed by the officer, he later admitted he was the driver and he would be paying for the cost of the impoundment.
PC Ball stated that the Appellant and his wife exhibited no concern that the suspended driver was driving the vehicle. He does not recall them stating he was not allowed to use the vehicle. Prior to impounding the vehicle, the suspended driver removed several of his personal clothing and children’s articles, leaving the impression that the vehicle had been used frequently. Based on his observations and the conversation with the Appellant and his wife, PC Ball was persuaded that their daughter regularly used the vehicle with the suspended driver and there was implied consent that the suspended driver could drive. PC Ball concluded in stating that, throughout his investigation and conversations with the Appellant, his wife and the suspended driver, nothing suggested to him that the vehicle was stolen or that it had been taken without consent.
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 section 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 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.
Second, the section provides that the Tribunal may not, except in certain circumstances, consider certain factors:
- 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 if the owner demonstrates that:
- 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 also 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, the Appellant stated that the loss of the vehicle is causing him exceptional hardship. He requires the vehicle to attend medical appointments and the alternatives available to him are inconvenient and difficult.
In his summary statement, the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar. The evidence before the Tribunal does not support the grounds for appeal that the vehicle was stolen. The information provided to the Appellant and his wife lack credibility. There are significant discrepancies between their testimony and that of two experienced police officers who investigated the incident. With respect to exceptional hardship, the Registrar’s Agent maintains that the Appellant has an alternative to the impounded vehicle and there has been no loss of income.
On the issue of whether the vehicle was stolen, the Tribunal must consider the totality of the facts to determine if the evidence supports a finding that the vehicle was stolen.
The Appellant was confused on the details of how the keys got in the hands of the suspended driver and how the vehicle came to be driven that night. . The Tribunal notes an apparent conflict between the Appellant’s evidence and that of his wife. Although the Appellant professed that no one was allowed to drive the vehicle without his permission, he conceded that his wife permitted their daughter to use it occasionally. Although he acknowledged that the suspended driver was at his home visiting his daughter on the evening in question, his wife denied that he was there. The Appellant’s wife stated that her daughter borrowed the vehicle before supper and returned it 30 minutes later and she stayed home all evening. This statement is inconsistent with the timelines provided by the police officers and with her reported statement to the police that her daughter was out with the vehicle and that her boyfriend would be driving the vehicle. Considerable evidence provided by the Appellant and his wife was at great variance to the testimony of the two police officers. Given the discrepancies, the Tribunal finds the Appellant’s evidence that the vehicle was stolen as unreliable and lacking in credibility.
In light of this testimony, the Tribunal does not find the Appellant’s evidence sufficiently persuasive to support a conclusion that the vehicle was ‘stolen’ or taken without permission. The evidence was clear that the daughter was given the keys to the vehicle, some time prior to 8:30 pm or so when the vehicle was first observed by the police officer. The evidence also suggests that there was an implied consent for the suspended driver to drive on those occasions when the daughter borrowed the vehicle. In light of all the evidence, including the sequence of events as described by the police officers, the suggestion that the daughter was home well before 8 pm, but must have decided to leave again, taking the keys to the car unbeknownst to her parents who were in the house, is not credible. The Tribunal therefore finds there is insufficient evidence to conclude the vehicle was stolen at the time of impoundment.
With respect to the issue of exceptional hardship, section 10 of O. Reg. 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 an alternative to the motor vehicle. Section 10(4) states: “In order to show that no alternative to the impounded motor vehicle is available under subsection (1) or clause (3) (a), the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.” Then, if there is no alternative available, the Tribunal may consider whether the impoundment will result in a threat to health or safety, or in an “immediate, significant and lasting” loss (in the nature of finances, employment or education) to any person ordinarily transported by the motor vehicle.
In this case, the Appellant’s testimony established that an alternative to the impounded vehicle does exist as there is a second vehicle in the home, Although inconvenient, his wife was able to drive him on two occasions for his medical appointments. With some planning, the Appellant could also use public transportation. While the Tribunal appreciates that the cost of the impoundment fees may be difficult, the Tribunal can only consider financial loss if the Appellant has no alternative to the impounded vehicle. Furthermore, the financial loss would have to be immediate, significant and lasting.
The Tribunal finds that the evidence does not support the Appellant’s case on the ground of having no alternative to the impounded vehicle. Even if that were proven by the Appellant, the evidence does not show that the other requirement has been met – that his loss is immediate, significant and lasting. Therefore, the Tribunal finds that the ground of exceptional hardship, as defined in the Regulation, has not been proven.
Therefore, the appeal has failed.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal confirms the impoundment of the Appellant’s motor vehicle, and it will remain at the impoundment facility for 45 days.
LICENCE APPEAL TRIBUNAL
Geneviève Blais, Member
Released: March 15, 2016