Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 10133/MVIA
CASE NAME: 10133 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: Patricia L. Cassidy, Vice-Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Steve Grootenboer, Agent
Heard by teleconference: April 19, 2016
REASONS FOR DECISION
A hearing was held on April 19, 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”).
By written order released on April 27, 2016, THE TRIBUNAL ORDERED THE REGISTRAR TO RELEASE THE MOTOR VEHICLE pursuant to section 55.1(3) of the HTA, with reasons to follow. These are the reasons for the Tribunal’s decision.
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: 2015 Chevrolet (the “vehicle”)
Date of Appeal: March 29, 2016
ISSUES
As set out in the Appellant’s request for a hearing (Exhibit #2), 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, all 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 stated the impounded vehicle is the only vehicle she has to get to and from work. In cross-examination, she acknowledged there is another vehicle registered in her name but it is her 17 year old son’s car and he requires it for school purposes. She elaborated that he resides with the Appellant and has co-op placements for school, from noon until 7:00 p.m., Monday through Friday. The Appellant’s evidence is that this car is not in very good shape; it only cost $600.00 and is okay for getting around town, but it isn’t very roadworthy.
The witness stated she has joint custody of her three children. The eldest has his primary residence with her and the other two, aged 13 and 14 years, reside with their father in a community approximately 20 miles away. She states that she is to pick the two younger children up every Friday but that she cannot do that without her car. She would not risk using her 17 year old son’s vehicle to pick up and return her two younger children. Her estranged husband will not transport them and she cannot rent a vehicle because she doesn’t have a credit card, which is required to rent a vehicle. Further, her car payments for the impounded vehicle are so high that she could not afford a rental vehicle in any event.
The Appellant stated that she works approximately 15 minutes driving time from her home. She earns $15.00 per hour working at a flooring store. Initially, she missed a couple of days of work after the vehicle was impounded and she almost lost her job. She has since started taking public transit and, at times, she uses her son’s vehicle if he does not require it. Her employers now are sympathetic to her situation.
The witness stated she had nowhere to live when her marriage ended and P.C. offered to let her move into his home. She knew his driver’s licence was suspended, that he was prohibited from driving and states she has never given him permission to drive her vehicle. She stated that on the date in question she was ill and was asleep when the police called to advise her that her car was being impounded. She didn’t know the car had been taken and had not given anyone permission to take it. Her evidence is that she keeps the keys to her vehicle in her purse and she had never told P.C. where she kept her keys. He might have assumed that was where she kept them.
The driver was not charged with theft. The witness stated that, contrary to the unsworn statement of the police officer relied upon by the Registrar, she was never informed that she could have had the driver charged with theft; all he told her was that her car was being impounded. Further, despite the assumptions stated in the police officer’s statement, the witness asserts she does not know if the driver had ever driven her car on any other occasion and, if he did, it was not with her knowledge or consent. The witness was concerned about the contents of the officer’s written statement. She pointed out that the officer admitted making assumptions and is adamant he did not advise her of any options which might have been available to her when he called to tell her that her car was being impounded.
Evidence for the Registrar
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 impaired driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until December 16, 2017.
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).
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 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 driver of the vehicle, P.C., was disqualified from operating a motor vehicle by virtue of the suspension of his driver’s licence after he was convicted of impaired driving.
With regard to the ground of exceptional hardship, the Appellant acknowledges that she does have access to and has been using public transit to get to and from work when she cannot access her other vehicle, which is intended as her 17 year old son’s vehicle for school. While the Appellant initially missed a couple of shifts from work, she is now getting to work and her employers are aware of, and sympathetic to, her situation. The Appellant’s claim that she cannot access her 13 and 14 year old children on the weekends is most unfortunate. There was no evidence given about the availability of public transit for these teenaged children nor was there any evidence of the impact their inability to see their mother and older brother is having on them, or on their brother and the Appellant. Without that evidence, it is not possible to determine what impact, if any, the impoundment has had on the children of the Appellant. Based on the evidence, the Appellant has not established exceptional hardship.
With regard to the issue of “stolen”, the Registrar’s agent asks this Tribunal to accept the statement of Cst. C.K. of the municipal police service in the Appellant’s community which was included in the Registrar’s disclosure brief. This statement is not sworn and, as alleged by the Appellant, it appears to rely on a number of assumptions. In addition, the author states he relies on information he received in conversation with other unnamed police officers at an unidentified time. This Tribunal does not give this document any weight other than to confirm the circumstances around the vehicle being impounded. It does not assist in any way in determining whether or not the vehicle was stolen.
“Stolen”, in the context of this impoundment legislation, does not require that criminal charges be laid or even that the vehicle owner reported the driver to the police. In impoundment cases, the concept of “stolen” should be interpreted from the viewpoint of the vehicle owner. P.C. did not have easy access to the vehicle keys; he would have had to go searching for them. There is no reason to conclude, based on the evidence, that the Appellant acquiesced in his use of the vehicle in any way. The evidence of the vehicle owner was persuasive and it is clear to this Tribunal that, in this case, the vehicle was taken without the owner’s consent.
Therefore, the Tribunal finds that the ground of “stolen” as set out in the legislation has been made out.
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
Patricia L. Cassidy, Vice-Chair
RELEASED: April 28, 2016