Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9950/MVIA
CASE NAME: 9950 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: Jacqueline Castel, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: January 5, 2016
REASONS FOR DECISION
A hearing was held on January 5, 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”).
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: Appellant
Motor Vehicle: 2007 CHEV XLT (the “vehicle”)
Date of Appeal: December 17, 2015
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #1), 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.
FACTS
Evidence for the Appellant
A summary of the Appellant’s evidence follows.
The Appellant is a senior citizen on a fixed income. She resides in a seniors’ apartment building.
The Appellant stated that her son (“WC”) drove her vehicle without her consent or permission on the date in which it was impounded. Her son was living with her at the time. When her son took her car keys without her permission she was meeting with a health professional that was assessing her ongoing physiotherapy needs following hip replacement surgery. She stated that she had explicitly told her son he was not permitted to drive her vehicle after his license was suspended. Prior to the suspension of his licence, he used her vehicle (with her consent) to drive to and from work; however, after his licence was suspended, she was driving him to and from work. She indicated that her son was well aware he did not have her permission to drive her vehicle while his licence was under suspension.
The Appellant stated that she needs her vehicle to get to and from her physiotherapy appointments which she requires as a result of her hip replacement surgery. Her daughter, who was on vacation from work, was able to drive her to her physiotherapy appointments. However, her daughter returned to work on January 4, 2016 and can no longer drive her to these appointments as the appointments are all during the day while she is working. She has no one else who can drive her to the appointments.
The Appellant walks with a cane and cannot access public transportation. She has handicapped parking privileges because she cannot walk far.
The Appellant missed her physiotherapy on January 5, 2016 because she had no way of getting to it and is concerned that she will have to miss another appointment on January 7, 2016 if the car is not released from impoundment.
The Appellant acknowledged that she has a second car, a Chevrolet SNT, but she indicated that as a result of her hip replacement surgery she cannot get in and out of this vehicle, as it is a smaller vehicle and the seats do not go back far enough. As a result, until she recovers and has greater mobility, she cannot use this vehicle.
The Appellant acknowledged that her nephew was available to drive her to the local community on January 4, 2016 to pick up papers that the Registrar’s representative provided for the purpose of the hearing. She indicated that her nephew is not available to drive her to her physiotherapy appointments and was just doing her a favour on this one occasion.
The Appellant stated that her daughter and her nephew both have large vehicles which she is able to get in and out of.
The Appellant acknowledged that the vehicle which was impounded was very messy and had a lot of her son’s possessions in it as well as empty beer cans. She reiterated that her son was regularly using the vehicle to get back and forth from work until his licence was suspended and the suspension of his licence was relatively recent (November 30, 2015).
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 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 with Impaired Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until November 30, 2016.
Copy of Ministry of Transportation records indicating that the Appellant owns a second vehicle, a 2013 Chev SNT.
The Agent for the Registrar called one witness, Constable James Holden. Constable Holden testified that on December 9, 2015 he observed a driver fail to stop at a stop sign. He stopped the vehicle and asked the driver to produce identification. He identified the driver as WC and determined that his licence had been suspended on November 30, 2015 for impaired driving. As a result, he charged WC with driving while disqualified, seized the vehicle he was driving and made arrangements to have it impounded. He subsequently drove WC to his mother’s apartment. He notified the Appellant, the registered owner of the vehicle, of the impoundment and explained the appeal process to her. Constable Holden testified that the vehicle was very messy and that there were empty beer cans in the back seat
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).
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 finds that WC stole the vehicle within the meaning of the Act. The Tribunal accepts the Appellant’s evidence that she told WC he did not have permission to drive her vehicle while it was under suspension. He took the keys to her car when she was busy meeting with a health professional at her home without her explicit or implicit consent. The fact that the Appellant was driving WC to and from work, after his licence was suspended, is evidence that she did not consent, at any other time, to him driving her vehicle while his licence was under suspension.
The Agent for the Registrar argued that the fact that the car was messy and contained empty beer cans suggests that the Appellant permitted WC to drive the vehicle on other occasions while his licence was suspended. The Tribunal disagrees. WC’s licence was suspended on November 30, 2015 and the vehicle was impounded 8 days later. The Tribunal accepts the Appellant’s testimony that WC was driving her vehicle to and from work prior to his licence being suspended and that he left the vehicle in a mess. The Tribunal is not prepared to infer from the unkempt condition of the car that WC was driving the vehicle on other occasions after his licence was suspended.
The Tribunal also finds that the loss of the vehicle is causing the Appellant an exceptional hardship. She is a senior citizen on a fixed income, who recently underwent hip replacement surgery and requires on-going physiotherapy. She walks with a cane and has handicapped parking privileges. She is too unsteady on her feet to take public transportation. Although her daughter was able to drive her to her physiotherapy appointments while she was on vacation from work, she has now returned to work and can no longer drive her mother to her appointments, all of which are during the day while she is working. She has no one else who can take her to her appointments. She admitted to owning another vehicle, but the vehicle is smaller, and the seats do not go back and forth far enough for her to get in and out, due to her mobility issues.
In these circumstances, the Tribunal is satisfied that the Appellant does not have an alternative to the impounded vehicle, and that the impoundment is impacting her health, since she needs the vehicle to attend her physiotherapy appointments.
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
Jacqueline Castel, Member
RELEASED: January 6, 2016