Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 10081 MVIA
CASE NAME: 10081 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: D.J., Agent
For the Respondent: Julia Scorcia, Agent
Heard in Toronto: March 29, 2016
REASONS FOR DECISION
A hearing was held on March 29, 2016, at Toronto, Ontario, in person 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 CONFIRMS THE IMPOUNDMENT.
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: 2006 AUDI NA4 (the “vehicle”)
Date of Appeal: March 9, 2016
The Appellant did not attend this hearing. The Tribunal member asked the Appellant’s Agent why the Appellant was not present and was advised that while the Appellant and the Agent were on their way to the hearing, they “had a fight” because of the Appellant’s concern that she could not speak English. The Appellant then decided not to attend the hearing. Noting that the Appellant’s Agent could act as her interpreter, and with the consent of the Respondent’s Agent, the Tribunal attempted to reach the Appellant to ask her if she wished to join the hearing by teleconference. However, the Appellant could not be reached at the only telephone number on the Tribunal’s records. Noting that the Appellant had submitted the required Declaration of Representative, the hearing continued with the Appellant’s Agent representing her in her absence.
ISSUES
The Notice of Appeal (Exhibit 2) does not require the Appellant to specify the grounds for appeal. Moreover, even if the Appellant did specify the grounds, this does not preclude the Tribunal from considering any or all of the grounds. Based on the testimony of the Appellant’s Agent, the Tribunal has considered the Appellant’s appeal on three grounds: that the motor vehicle was stolen at the time it was detained in order to be impounded, that the vehicle owner exercised due diligence (i.e. all reasonable efforts) to determine that the driver's licence was not suspended and that the loss of the vehicle will result in exceptional hardship, as provided in sections 50.2(3)(a)(c) 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 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 in respect of which the vehicle was detained in order to be impounded was not then under suspension?
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’s Agent is the suspended driver in this case. He testified that he and the Appellant, who is his girlfriend and with whom he lives, came to Canada approximately 1.5 months ago.
The Appellant’s Agent had previously lived in Canada for 23 years but returned to his home country approximately four years ago. After his marriage had broken down, his wife returned to his home country with his children. The Appellant’s Agent moved back to his home country in order to see his children.
The Appellant’s Agent testified that the Appellant was not aware of the status of his driver’s licence. He stated that he lied to her because he did not want her to be upset. The Appellant does have an Ontario driver’s licence and therefore the impounded vehicle and insurance are in her name. The Appellant’s Agent noted that the Appellant is a new driver and the insurance is expensive. While in their home country, the Appellant’s Agent did drive occasionally; however, the Appellant also drove there. The Appellant has never asked the Agent about the status of his driver’s licence nor has she ever asked to see it.
The Appellant and the Appellant’s Agent live in an apartment which has no parking. The impounded vehicle is either parked on the street or in the parking lot of a nearby plaza. On the day the vehicle was impounded, the Appellant’s Agent had a job interview in another municipality. He took the car keys from the Appellant’s coat pocket and drove the vehicle to that appointment. The Appellant, who works at a store in the nearby plaza, walked to work that day. On cross-examination, the Agent confirmed that he was allowed to drive the vehicle because the Appellant was unaware that he did not have a valid licence.
The Appellant is a university educated teacher. She previously worked as a house cleaner and used the vehicle to drive to her various work sites. She is now able to walk to her new retail job at the plaza. Very recently, the Appellant’s Agent has secured a new job. After the vehicle was impounded, the Appellant’s Agent borrowed money from his mother and he and the Appellant have rented a vehicle. The Appellant drives the Appellant’s Agent to and from his new job before she walks to her own workplace.
The Appellant has no health issues. She and the Appellant’s Agent live in an area with 911 emergency services.
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 Applicant 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 failing to remain at the scene of an accident under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until February 9, 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 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 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 in respect of which the vehicle was detained in order to be impounded was not then under suspension?
The Shorter Oxford Dictionary, 3rd ed. provides the definition of “due diligence” as follows:
Due: A. adj. 1. That is owing or payable, as a debt. 2. Belonging or falling to by right. 3. That ought to be given or rendered; merited. 4. Such as ought to be; fitting; proper; rightful. 5. Such as is requisite or necessary; adequate. 6. To be ascribed or attributed; owing to, caused by, in consequence of. 7. Under engagement or contract to be ready or arrive (at a defined time).
Diligence: 1. The quality of being diligent; industry, assiduity. 2. Speed, dispatch. 3. Careful attention, heedfulness, caution. 4. Law. The attention and care due from a person in a given situation....
Also, “due diligence” in Black’s Law Dictionary (sixth edition) at page 457 is defined as follows:
Due diligence: Such a measure of prudence, activity, or assiduity, as is properly to be expected from, and ordinarily exercised by, a reasonable and prudent man under the particular circumstances; not measured by any absolute standard, but depending on the relative facts of the special case.
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 first issue to be considered is whether or not the Appellant’s vehicle was stolen at the time it was impounded. In this case, the Appellant’s Agent is the suspended driver who lives with the Appellant. He testified that he was allowed to use the vehicle; the Appellant was not aware of the status of his driver’s licence because he had lied to her. On the day of the impoundment, he simply took the keys and drove. While the fact that the Appellant believed the suspended driver had a valid licence may mean that he drove the vehicle under false pretenses, it does not mean that the vehicle was stolen. The evidence clearly indicates that the vehicle was not taken without the Appellant’s consent. Therefore, the appeal must fail on the grounds that the vehicle was stolen at the time it was impounded.
The second issue is whether or not the Appellant exercised due diligence in attempting to determine that the driver’s licence of the Appellant’s Agent was not under suspension. In this case, the Appellant’s Agent testified that the Appellant believed he had a valid licence. However, he admitted she had never asked him about the status of his licence. Nor had she ever asked to see it. The Tribunal notes that the evidence is that the impounded vehicle was registered and insured in the Appellant’s name because she is the licensed driver. The Appellant apparently did not question this. Due diligence requires care and attention; the Appellant must make active inquiries to determine the status of the licence. There is no evidence that the Appellant made any inquiries. Therefore the appeal must also fail on the grounds of due diligence.
The final issue to be considered is whether or not the loss of the vehicle has resulted in exceptional hardship. With respect to the issue of exceptional hardship, Section 10 of Regulation 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 Applicant has an alternative to the motor vehicle.
In this case, there is an alternative to the impounded vehicle; the Appellant’s Agent borrowed money from his mother and he and the Appellant have rented a vehicle. Because the Appellant does have an alternative, the Tribunal cannot consider financial or economic loss resulting from the impoundment. The Tribunal notes that the Appellant herself is able to walk to work; she is using the rental vehicle to drive the Appellant’s Agent to his new job. The Tribunal also notes that while the Appellant’s Notice of Appeal indicates that she needs a vehicle to reach her work, the testimony at this hearing was that she had already started her new job, to which she can walk, after the vehicle was impounded. The evidence does not establish exceptional hardship as set out in subsection 50.2(3)(d) of the Act.
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 impound facility for 45 days.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
RELEASED: April 04, 2016