Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9949/MVIA
CASE NAME: 9949 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: Carl Prescott, Agent
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 to The Car Lot ETC Inc.
BACKGROUND
A motor vehicle was impounded pursuant to section 55.1 of the Act and the impoundment was appealed by The Car Lot ETC Inc. (the “Appellant”), which was one of the registered owners of the vehicle. The other registered owner of the vehicle was a person, “SS”, who leased the vehicle from the Appellant. The motor vehicle and date of appeal in this matter are as follows:
Motor Vehicle: 2007 Mazda (the “vehicle”)
Date of Appeal: December 16, 2015
ISSUES
The Appellant’s grounds for appeal, as set out in the Appellant’s Notice of Appeal (Exhibit #1), are that the Appellant, a car leasing company, had no control over the lessee loaning the vehicle to the suspended driver, and that the Appellant should not be held responsible for something it has no control over. While the Appellant argued that to hold it responsible, in these circumstances, would cause an exceptional hardship, the appeal turned on the issue of whether the vehicle had been “stolen”, within the meaning of section 50.2(3)(a) of the Act.
FACTS
Evidence for the Appellant
A summary of the Appellant’s evidence follows.
The Appellant leased the vehicle to SS on September 11, 2015. Before leasing the vehicle, the Appellant verified that SS had a valid licence and valid insurance, as only customers with a valid licence and insurance are permitted to lease vehicles from the Appellant. Payments on the lease were due monthly on the 15th of each month. The December 15, 2015 payment “bounced”. SS informed the Appellant that she could no longer afford the lease and that she is voluntarily surrendering the vehicle back to the Appellant. She signed a voluntary surrender form on December 16, 2015. Neither the lease nor the voluntary surrender form was introduced into evidence.
Unknown to the Appellant at the time, the vehicle had already been impounded on December 8, 2015 because SS’s spouse, whose driver’s licence was under suspension, was driving it.
The Appellant has been in business for 12 years and the company owns approximately 150 vehicles.
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 names of two owners, the Appellant as lessor and SS as lessee;
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 driving while disqualified or prohibited under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until March 8, 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.
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 provided evidence and submissions that could be related to the grounds of stolen and exceptional hardship. The Tribunal identified the ground of stolen as the main one for consideration but will address both of the grounds.
Section 10 of Ont. Reg. 631/98 sets out very detailed and strict criteria that the Tribunal must apply when deciding whether there is exceptional hardship. First, the Appellant must prove that there is no available alternative to the impounded vehicle. Only then may the Tribunal consider whether the impoundment results in exceptional hardship, which is defined in a narrow way under the legislation. As such, it would be very difficult for a leasing company with many vehicles to get past this first hurdle.
This Appeal can be decided most clearly and directly by considering the ground of “stolen”. The meaning of “stolen” is not defined in the Act. The Criminal Code of Canada (the “Code”) R.S.C. 1985, Chap. C-46, provides some guidance, but the word “stolen” must be interpreted in the context of the Act and the impoundment provisions.
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.”
The burden of proof is on the Appellant to satisfy the Tribunal that at least one of the grounds of appeal has been proven on a balance of probabilities.
APPLICATION OF LAW TO FACTS
The Tribunal finds that the Appellant’s vehicle was stolen within the meaning of the Act. In another case involving the impoundment of a leased vehicle, 9424 v. Registrar of Motor Vehicles, 2015 CanLII 20231 (ON LAT), the Tribunal interpreted “stolen” in the context of the Act in the same way, and this Tribunal agrees with and adopts the reasoning in that case.
While there was no evidence as to whether the vehicle was “stolen” as between the suspended driver and the lessee, it was “stolen” from the viewpoint of the leasing company. While the lessee was not precluded by the lease from allowing other people to drive the vehicle, in accordance with the provisions of her insurance, she was not authorized to allow suspended drivers to drive the vehicle. No insurer covers third party drivers who do not have a driver’s licence or whose driver’s licence is under suspension. Therefore, the suspended driver did not have the permission of the leasing company to drive the vehicle.
The Ministry’s representative submitted that the use of the leased vehicle by a suspended driver is an inherent risk associated with the business of leasing vehicles and this impoundment was part of that risk. The Tribunal finds that this submission by the Ministry would mean that the legislative scheme for impoundments is one of absolute liability, where vehicle owners are responsible for misuse of their vehicles regardless of any fault on their part. The Tribunal does not accept this interpretation of these provisions. The grounds for appeal include “due diligence” and “stolen”. This is consistent with the purpose of the impoundment legislation, which would appear to be to reduce opportunities for certain suspended drivers to have access to a vehicle and to encourage vehicle owners to be more careful about who they let use their vehicles.
The leasing company has no control over who drives their vehicles, except for exercising due diligence over the lessee’s licence status and insurance policy and imposing the condition in the lease that drivers who do not have a licence or whose licence is suspended are precluded from driving the vehicle.
In the present case, the facts are clear enough to support a finding that the vehicle was stolen within the meaning of section 50.2(3)(a) 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 orders the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
Jacqueline Castel, Member
RELEASED: January 6, 2016