Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2016-04-01
FILE:
10091/MVIA
CASE NAME:
10091 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:
Mary Ann Spencer, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Steve Grootenboer, Agent
Heard by teleconference:
March 31, 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 Ford COF (the “vehicle”)
Date of Appeal: March 14, 2016
ISSUES
As set out in the Appellant’s request for hearing (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.
In addition, some of the evidence before the Tribunal raised the possible argument that this vehicle may be considered under the Act as having been stolen by the suspended driver. In these appeals, the Tribunal may consider grounds for relief without the Appellant having specified those grounds in the Notice of Appeal, as long as the Respondent is provided with an adequate opportunity to respond.
There was also the possible ground that the owner exercised due diligence in determining that the licence of the driver was not under suspension, but the Tribunal did not need to consider this ground. This ground applies when the owner exercises due diligence with respect to the driver of the vehicle at the time that it was impounded, and in this case, the owner had checked the licence of her son's friend, but he was not the driver at the time the vehicle was impounded.
The Tribunal has therefore considered the following issues:
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?
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
Evidence for the Appellant
The Appellant lives with her son, the suspended driver in this matter, and her daughter and grandson in a home which is located in a rural area outside of a small town. She estimated that the nearest store to her home was a 5 minute drive or a 30 minute walk.
On the day of the impoundment, the Appellant’s vehicle was borrowed to transport her son’s former girlfriend and her belongings to another municipality some distance from the Appellant’s home. The Appellant is aware of the status of her son’s licence. The impounded vehicle had been his; it was registered in her name after his licence was suspended. A friend of the Appellant’s son was to be the driver of the vehicle and the Appellant asked to see his driver’s licence. After dropping off the former girlfriend, the son and his friend decided to stay at the friend’s house, which is located in a large municipality near the one in which the former girlfriend lives. While he was there, at approximately 12:30 a.m., the son received a call from his employer asking him to work the following day. The son starts work at 6 a.m. Rather than wake his sleeping friend to have him drive back home, the son chose to drive the vehicle himself and, at 1:35 a.m., the vehicle was impounded.
Until the day of this hearing, the Appellant had the use of a second vehicle which is registered in her name. She testified that the vehicle is old, has a gas leak and that she was unable to start it on the morning of the hearing. She does not know what the cost of repair would be or how she will get it fixed since it would require towing to a mechanic and she cannot afford this expense. The other two vehicles which Ministry records show she owns have been scrapped.
The Appellant currently receives Employment Insurance (EI) benefits. She is required to be available for work and to report to the EI office twice weekly. In addition, one of her grandchildren is currently in the care of the Children’s Aid Society (CAS) and is driven to her home for morning visits with her daughter three times a week. Because of a shortage of CAS drivers, the Appellant’s daughter must drive the granddaughter back to a major municipality after the visit. The Appellant also uses her vehicle to drive her son to his work and for household errands such as getting groceries. She testified that she had not missed any of her EI visits but that scheduling was difficult when she had only the use of her second vehicle and she does not know how she will cope without the use of either, stating she lives “in the middle of nowhere”. She has not asked friends or neighbours for help to date because her second vehicle was working until the day of this hearing.
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 with a blood alcohol content in excess of 80 milligrams under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until September 30, 2016.
Copy of the Ministry of Transportation records indicating the Appellant owns three other plated vehicles.
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 Tribunal notes that while the Appellant, in her Notice of Appeal, indicated that the
loss of her vehicle was causing her exceptional hardship, her testimony also supports
consideration of the ground that her vehicle was stolen at the time it was impounded.
Therefore, the first issue to be considered is whether or not the motor vehicle was
stolen at the time it was detained.
The Appellant’s testimony was both detailed and credible. She testified that she did not
give her consent to the suspended driver to use her vehicle. Rather, she was “passed
out” in the passenger seat and was unaware that he drove the vehicle until she was
awakened when it was pulled over by police. He obtained the keys only because he
was aware of her practice of placing th
The Tribunal notes that while the Appellant, in her Notice of Appeal, indicated that the
loss of her vehicle was causing her exceptional hardship, her testimony also supports
consideration of the ground that her vehicle was stolen at the time it was impounded.
Therefore, the first issue to be considered is whether or not the motor vehicle was
stolen at the time it was detained.
The Appellant’s testimony was both detailed and credible. She testified that she did not
give her consent to the suspended driver to use her vehicle. Rather, she was “passed
out” in the passenger seat and was unaware that he drove the vehicle until she was
awakened when it was pulled over by police. He obtained the keys only because he
was aware of her practice of placing th
The Tribunal notes that while the Appellant, in her Notice of Appeal, indicated that the
loss of her vehicle was causing her exceptional hardship, her testimony also supports
consideration of the ground that her vehicle was stolen at the time it was impounded.
Therefore, the first issue to be considered is whether or not the motor vehicle was
stolen at the time it was detained.
The Appellant’s testimony was both detailed and credible. She testified that she did not
give her consent to the suspended driver to use her vehicle. Rather, she was “passed
out” in the passenger seat and was unaware that he drove the vehicle until she was
awakened when it was pulled over by police. He obtained the keys only because he
was aware of her practice of placing th
The Appellant, in her Notice of Appeal, indicated that the loss of her vehicle was causing her exceptional hardship. However, her testimony also supports consideration of the grounds that her vehicle was stolen at the time it was impounded and that she exercised due diligence with respect to determining the status of the driver’s licence at the time the vehicle was impounded. The Tribunal will first consider the issue of whether or not the motor vehicle was stolen at the time it was detained.
The Appellant testified that she did allow her vehicle to be used to enable her son’s former girlfriend and some of her belongings to be driven to the former girlfriend’s home. However, a friend of her son’s, a licensed driver, was the person whom she allowed to drive the vehicle. The Appellant was well aware of the status of her son’s driver’s licence; she testified that the vehicle had been transferred to her name after her son’s licence was suspended and he has not driven it since. The Appellant also testified that she looked at her son’s friend’s licence before she allowed him to drive. The fact that she conducted this due diligence with respect to the person who would be driving her vehicle convinces the Tribunal that the Appellant is careful about ensuring her vehicle is used only by licensed drivers.
The Appellant was no longer in control of the vehicle when her son chose to drive it later that day. The Registrar’s representative argued that the Appellant’s son had easy access to the keys and therefore the vehicle could not be stolen. The Appellant’s son was some distance away from the Appellant’s home, at the driver’s home, when he received a request to work early the following day and made the poor judgment call to drive the vehicle. The son was a passenger in the vehicle when the vehicle left the Appellant’s home. The evidence is that the Appellant only authorized her son’s friend to drive; he was properly licensed. The Appellant was a credible witness and there was nothing to suggest that she gave permission to her son to drive her vehicle, or even that she could be seen to have implicitly consented to this.
The Tribunal notes that “stolen” means taken without the consent of the owner. The evidence indicates that the Appellant did not give her consent for her son to use the vehicle. Therefore, the Tribunal finds that the Appellant’s vehicle was stolen in accordance with section 50.2(3) (a) of the Act. Having found that the Appellant has succeeded on the grounds of “stolen”, there is no need for the Tribunal to address the grounds of exceptional hardship.
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: April 1, 2016