Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2016-03-31
FILE:
10048/MVIA
CASE NAME:
10048 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:
David B. Caryll, Member
APPEARANCES:
For the Appellant:
Appellant’s spouse, Agent
For the Respondent:
Sanjay Kapur, Agent
Heard by teleconference:
March 9, 2016
REASONS FOR DECISION AND ORDER
A teleconference hearing was held 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 CONFIRMS the Order to Impound imposed by the Registrar of Motor Vehicles (the “Registrar”) pursuant to subsection 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 are as follows:
Owner: the Appellant
Motor Vehicle: 2007 CADI ESC (the “vehicle”)
Date of Appeal: February 11, 2016
ISSUE
Initially, the appeal was filed under the grounds of “exceptional hardship”, as provided in subsection 50.2(3)(d) of the Act. However, the Appellant subsequently amended his ground of appeal to “borrowing the vehicle without his consent”.
Therefore, as set out in the Appellant’s amended Notice of Appeal, the owner appeals on the basis that the vehicle was stolen, at the time of the impoundment, as provided in subsection 50.2(3)(a) 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?
FACTS
The following facts are not in dispute.
At approximately 6:00 a.m. on February 3, 2016, the police stopped the vehicle on a public road and discovered that the driver’s licence of the driver was under suspension for an offence under the Criminal Code of Canada. The police impounded the vehicle.
The driver was the only occupant in the vehicle.
The Registrar’s documents were entered into evidence and accepted by the Appellant without any objection. The Ministry of Transportation’s records indicate that the driver of the vehicle at the time of the impoundment had been convicted of “fail to provide a breath or blood sample” under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until July 7, 2018.
The Appellant’s spouse gave a brief history of the use of the three family vehicles. She and the Appellant each have a vehicle they use during the week. The Appellant has a third vehicle, the one involved in this appeal, which he uses on the weekends.
There are, however, two other specific uses for the vehicle that the Appellant’s spouse testified to: First, it is common practice for the spouse’s brother to borrow the car in the event the Appellant or his spouse does not need to use it at that time. Secondly, the spouse’s mother has to attend the hospital a number of times per week for a medical procedure. This is usually done with the spouse’s father’s car. However, on occasion, that car has battery problems making it necessary to use the vehicle now impounded. For this reason, the vehicle is frequently parked at the Appellant’s spouse’s parents’ house. To her knowledge, the keys were left inside her parents’ house.
In his original reasons for appeal, the Appellant stated: “I lent my brother-in-law my truck so he could get himself to work”. On February 17, 2016, the Appellant’s spouse wrote to the Tribunal saying, “The [Appellant] was not aware of him [my brother] borrowing his vehicle, and did not have his consent [to borrow it]”.
Under cross-examination, the Appellant’s spouse stated that she was not asked by her brother if he could borrow the vehicle on the morning of February 3, 2016. She also said that she was not a party to any conversation between the Appellant and her brother about borrowing or not borrowing the vehicle at that time.
Constable Lee testified that she was working in a plain clothes unit whose purpose was to apprehend individuals who are driving while under suspension.
She said that she had prior knowledge, from a confidential source, that the Appellant’s spouse’s brother was driving a vehicle without a driver’s licence. She then observed the vehicle parked at the parents’ house.
Constable Lee testified that on February 3, 2016, at 5:45 a.m., she began surveillance at the parents’ house. At 5:55 a.m., the brother came out of the house and drove the vehicle away. At 6:00 a.m., she had a uniformed constable pull the vehicle over. At 6:01 a.m., she confirmed that the driver was the spouse’s brother and arrested him.
Constable Lee stated that she and the Appellant’s spouse’s brother had a couple of conversations. In one of those conversations, the Appellant’s spouse’s brother told her that he uses the vehicle every day to go to work.
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 appeals on the basis of subsection 50.2(3)(a).
Issue Should the Tribunal set aside the Registrar’s order to impound the vehicle on the basis that the motor vehicle was stolen at the time in respect of which the order was made?
The meaning of “stolen” is not provided in the 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, c. C-46, provides guidance.
Section 1 of the Code states:
“steal” means to commit theft…
Section 332(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.
(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.
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’s claim that the vehicle was “borrowed …without his consent” is covered by the ground of stolen as set out in the Act, and, will be considered as such by this Tribunal.
The argument that a suspended driver has stolen the vehicle is one that is easy to assert. The Tribunal must carefully consider this argument in the context of the evidence before it. One of the indicators that a vehicle has been stolen, of course, is the laying of charges. Another is the lack of a relationship between the owner and the driver to support an inference that the owner has lent the vehicle to the driver. This does not mean that one family member cannot steal a vehicle from another. To complicate the analysis, in a close family relationship, the laying of charges may result in such bad feelings that the owner does not want to contemplate such action.
The Tribunal must consider the totality of the facts to determine if, in fact, the vehicle was stolen. There may be instances when specific permission for use of the vehicle at the time the vehicle was impounded was not given, but the overall facts support a conclusion that the use of the vehicle by the suspended driver is acquiesced to by the owner.
There is no evidence that, at the time the vehicle was stopped by Constable Lee, the Appellant had specifically denied his spouse’s brother permission to drive the vehicle.
There is evidence, however, that the Appellant and his spouse frequently lent the vehicle to the brother, unless it is otherwise needed by them. The Tribunal notes that initially, on the Notice of Appeal, the Appellant stated “I lent my brother-in-law my truck so he could get himself to work”. This is consistent with Constable Lee’s evidence that the driver told her that he used the vehicle every day to go to work.
Further, the Appellant’s spouse’s evidence was that the vehicle was left during the week at her parents’ house, where her brother also lived. This allowed him easy access to the vehicle. There is no evidence of any restrictions on the use of the vehicle, or any action taken by the owner to limit when the brother could use the vehicle.
Even if the Appellant had not given explicit permission to his spouse’s brother to drive the vehicle on February 3, 2016, the Tribunal finds, on a balance of probabilities, that there was implied consent to the use of the vehicle by the suspended driver.
In summary, the Tribunal finds that the ground of “stolen”, as defined in the Regulation, has not been proven.
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under subsection 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
David B. Caryll, Member
Released: March 31, 2016