Licence Appeal Tribunal
Appeal d'appel en matière de permis
FILE: 10044/MVIA
CASE NAME: 10044 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
10044 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 2, 2016
REASONS FOR DECISION AND ORDER
A hearing was held on March 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 “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: 2009 NISS MUR (the “vehicle”)
Date of Appeal: February 9, 2016
ISSUES
As set out in the Appellant’s Notice of Appeal (Exhibit #2), the owner appeals on the basis that the loss of the vehicle will result in exceptional hardship, as provided in section 50.2(3)(d) of the Act.
Should the Tribunal order the Registrar of Motor Vehicles (the “Registrar”) to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?
Some of the evidence raised the possible argument that the vehicle was “stolen” at the time it was detained in order to be impounded, as provided in section 50.2(3)(a) of the Act. In a hearing of this nature, the Tribunal may consider any grounds for relief that arise in the evidence without the requirement for an Appellant to specifically outline the grounds in the Notice of Appeal. The Tribunal has therefore considered whether or not the ground that the vehicle was stolen applies in this case, and the parties were given an opportunity at the hearing to provide evidence and submissions about this ground.
FACTS
Evidence for the Appellant
A summary of the Appellant’s evidence follows.
The Appellant indicated to the Tribunal that she requires the vehicle to drive her 80 year old mother to medical appointments as the vehicle is larger and more comfortable. Since the impoundment, the Appellant has rented a sub-compact car, which was the most economical option. Her mother, who resides with the Appellant for three months of the year, has several medical problems and uses a cane to assist her walking. The Appellant stated that the rented vehicle is small and her mother finds it uncomfortable to sit in it for any length of time and experiences some difficulty getting in and out of the vehicle. Nevertheless they have managed to attend the necessary medical appointments, which are approximately 10 to 15 minutes away from the Appellant’s residence. Other leisure activities have been postponed.
The Appellant resides in a large metropolitan area. She has been employed for 28 years with a large financial institution and is currently a senior manager. She resides with her husband, the suspended driver, and their two children who are attending university. She stated that she is the principal breadwinner in the family. For the past two years her husband has operated a small business from the home; however, she stated the business generates little money and he does not financially contribute to the household expenses. Since the impoundment, the Appellant has not incurred any loss of work or income.
The Appellant stated that she learned of the vehicle impoundment when her husband called her early on the morning of the incident. He later told her that, earlier in the evening, on the spur of the moment, he decided to go out to the casino to celebrate his upcoming birthday. The Appellant stated that she routinely retires for the night around 9 p.m. and so do her children. Her elderly mother retires earlier. She was not aware of his plans as she did not talk to her husband before she went to bed. She assumed he was in the house and that he would watch television late into the evening, a habit he regularly engaged in.
In response to the Registrar’s Agent’s questions, the Appellant confirmed that she was aware of her husband’s record of driving violations since 1987 and his current suspension. When she was asked if she ever told her husband that he could not use her car, she said that they had not engaged in great conversation about his using the vehicle. However, she had told him that the vehicle was hers and he was not supposed to use it. She admitted that her husband had access to the vehicle keys, which were kept on a hook at the front door and easily accessible. She readily conceded that she was not concerned about leaving the keys accessible. Over the past few years she had trusted him, gave him the benefit of the doubt and hoped he would “do the right thing” and not use the vehicle. She admitted that nothing would preclude her husband using the vehicle given the easy access to the keys when she retired for the night. Despite her husband’s record of violations which included one previous 7-day impoundment four years ago, and four other driving violations involving her vehicle, she had not taken any measures to ensure he did not have access to the vehicle keys.
In response to further questions, the Appellant candidly stated that over the past two years, the relationship with her husband has been very strained and considerable tension has occurred as a result of his driving violations. The Appellant stated that the impoundment fees and the cost of the rental vehicle are adding more strain to an already stressful situation.
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 owners;
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 on October 27, 2014, of Failing to Provide Breath or Blood Sample under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was suspended until April 27, 2016.
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.
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 her exceptional hardship.
In his summary statement, the Registrar’s Agent asked that the Tribunal confirm the decision of the Registrar. The Registrar’s Agent submitted that the evidence before the Tribunal does not support the ground for appeal that the vehicle was stolen. He submitted that the Appellant did not provide sufficient evidence or arguments to justify the Tribunal proceeding on this ground. The Registrar submitted that the suspended driver’s history of violations suggests he had regular access to the Appellant’s vehicle. He contends that the Appellant had turned a blind eye to the possibility that her husband would use the vehicle without her knowledge as she left the vehicle keys readily accessible. 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.
The Tribunal will first assess the ground for appeal that the vehicle was stolen at the time of the impoundment. Although the Tribunal generally agrees that in certain circumstances where a vehicle is taken without the knowledge and consent of the owner, it may be deemed stolen, this is not a situation that merits that consideration. The evidence in support of the Appellant’s submission that the vehicle was stolen is that she was sleeping at the time, she trusted that the suspended driver would not use the vehicle, and she had told him at some point that the vehicle was hers and he was not supposed to use it. Nonetheless, the Appellant consistently left the vehicle keys readily available despite full knowledge of her husband’s long history of driving violations. Further, by the Appellant’s own admission, for the past two years, they have a strained relationship and are often not on speaking terms as a result of his behaviour and business decisions. Thus, the Tribunal has difficulty understanding why the Appellant would continue to leave the keys so accessible and think that he would “do the right thing” and not drive the vehicle. In these circumstances, the defence of “stolen” would require stronger evidence that the owner of the vehicle took active steps to clearly warn the family member to never drive the car, and also to prevent that family member from having easy access to the keys.
After reviewing the Appellant’s testimony, the Tribunal 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. She is renting a vehicle and has been able to attend to her mother’s medical appointments and her family’s daily needs. While the Tribunal appreciates that the cost of a rental vehicle and the cost of the impoundment fees may be difficult, the Appellant has full time employment and earns a very good income. The evidence does not support the Appellant’s case on either the ground of having no alternative to the impounded vehicle, or the ground of a threat to her mother’s health or an immediate, significant and lasting impact on the Appellant’s finances. 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 7, 2016