Licence Appeal Tribunal
FILE: 10169/MVIA
CASE NAME: 10169 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.
10169 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Geneviève Blais, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Julia Scorcia, Agent
Heard by teleconference: May 4, 2016
REASONS FOR DECISION
A hearing was held on May 4, 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”). The Tribunal had issued an Order to release the motor vehicle on May 5, 2016, with these reasons to follow.
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, FORD, COF, (the “vehicle”)
Date of Appeal: April 14, 2016
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #1), 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.
Should the Tribunal order the Registrar to release the motor vehicle on the basis that the impoundment will result in exceptional hardship?
The evidence at the hearing made it clear that the Appellant was also asserting that the vehicle was taken without her consent, and the Tribunal considered whether or not the ground that the vehicle was stolen applies in this case, and the parties were given an opportunity at the hearing to provide evidence and submissions about this ground.
FACTS
Evidence for the Appellant
The Appellant is a single mother of one son, age 18 years. She is employed full time and has maintained the same employment for eight years. The suspended driver at the time the vehicle was impounded is her common-law partner who was living with her and has since been incarcerated as a result of the charges resulting from the impoundment incident.
The Appellant stated that she was fully aware of her partner’s licence suspension and his driving record. She acknowledged a previous occurrence in January 2016 when her partner was subject to an administrative suspension when driving the vehicle. She stated that she had lent the vehicle to her partner’s co-worker. For unknown reasons, the co-worker was unable to drive the vehicle and had left the worksite. Her partner found himself stranded some distance away and chose to drive the vehicle to return home. She added that her partner had completed a “back on track” program with the Ministry in 2015 and was waiting for a reinstatement of his licence in a few months.
This January incident resulted in a seven-day impoundment, and she was very upset and embarrassed about his actions. As a result, she spoke at length with the suspended driver and told him not to drive the vehicle ever again, under any circumstance. He knew he was not to drive the vehicle. She accepted that her partner thought he could risk driving the vehicle home since he would otherwise be stranded, but she thought he had erred in his judgment and she made that clear to him. He had never taken the vehicle before, and she continued to trust him. She acknowledged that she did not change her usual routine of leaving the second set of the vehicle’s keys at her house.
On April 11, 2016, the vehicle was impounded at 12:40 pm on a Monday afternoon. The Appellant had car-pooled to work earlier in the day. When her partner told her of the incident, he stated that a friend had persuaded him to drive out of town to get his friend’s medication from his home. The suspended driver took it upon himself to take the vehicle without the Appellant’s knowledge or consent.
The Appellant stressed that she was very upset with her partner. She found it disturbing that despite her conversations with him, her partner took the vehicle without her permission. She stressed that he fully knew that he was not to use her vehicle under any circumstance. She believes he is very remorseful for his actions and the predicament for her of the loss of the vehicle.
The Appellant stated that the loss of the vehicle is causing her exceptional hardship. Her 18 year old son suffers from Asperger Syndrome. He suffers from anxiety and is not always fully functional in public situations. He has regular appointments with a therapist and the Appellant drives him to these appointments and others, as taking the bus is often too much for him. Since the vehicle was impounded, her son has missed one appointment for a career assessment. She has missed four days of work, which have been taken as personal care days. She stressed that she cannot take any more time off work as she risks jeopardizing her employment.
The Appellant stated that since the vehicle impoundment, she has rented a vehicle to drive to work and have at her disposal for her and her son’s personal needs. She is unable to rely on the car-pool option as it is sporadic due to her colleagues’ work schedules. She stated that she will not be able to continue renting a vehicle as she cannot financially afford the cost.
In cross-examination, the Appellant was asked as to whether she was able to use public transit for work and her daily needs. She conceded that this was an option, but due to her son’s condition, she preferred to use her vehicle. In further questioning, she was asked if she had contacted the police to report the vehicle stolen by the suspended driver. She stated that her partner was incarcerated as a result of the impoundment and she did not believe that it would be in his best interest to have him charged in this case.
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 and the driver at the time of the impoundment, as owners;
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 on March 2, 2016 of Impaired Driving under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until September 2, 2019.
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 Applicant 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 some 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.”
“STOLEN” – APPLICATION OF LAW TO FACTS
In closing, the Appellant reiterated that the vehicle was taken without her consent. In her summary statements, the agent for the Registrar asked the Tribunal to confirm the decision of the Registrar. She submitted that since the Appellant failed to lay theft charges against the suspended driver, the vehicle cannot be considered as stolen, as set out in subsection 50.2(3)(d) of the Act. In the opinion of the Registrar, there was a pattern of use as the vehicle was involved in a previous occurrence. She argued that the vehicle was being “borrowed” by the suspended driver and there is no proof that the driver intended to deprive the Appellant of her vehicle.
The Tribunal notes that it is not necessary for criminal charges to be laid in order to prove that a vehicle was stolen within the meaning of the impoundment provisions in the Highway Traffic Act. The existence of criminal charges or a criminal conviction may help an Appellant’s argument about “stolen”, but it is not a requirement.
The Appellant testified in a straightforward and forthcoming manner. She responded to all questions without any hesitation or evasiveness. The Tribunal finds her evidence to be credible.
The Tribunal accepts the Appellant’s testimony that she had specifically warned her partner not to drive the vehicle, and that he either knew or reasonably ought to have known that he did not have her permission to drive her vehicle. Even though her partner had previously driven the vehicle in January 2016 when he was stranded by his friend who did not drive him home from work, there was no evidence that he had driven it any other times, or that the Appellant knew or ought to have known that there was a significant risk that the he could take her vehicle again without her knowledge. In other words, that January 2016 incident did not establish enough of a pattern that would support a finding that there was any implied consent or acquiescence to her partner to use her vehicle. While in hindsight, it may be seen that she should have hid her car keys from her partner, her failure to do so in this case also did not amount to her implied consent or acquiescence. She had responded strongly to her partner after the January 2016 driving incident, and it should have been very clear to him that he had no permission to drive her vehicle when he took it the next time in April.
The Tribunal concludes that the vehicle was taken by the suspended driver without the Appellant’s knowledge and consent. The concept of “stolen” in these impoundment cases must be considered from the perspective of the owner, because this legislation seeks to impose consequences on owners whose vehicles are used by suspended drivers. In the circumstances of this case, it is very clear that the vehicle must be considered as stolen. Therefore, the appeal succeeds on the ground of stolen as set out in subsection 50.2(3)(a) of the Act.
On the other issue of exceptional hardship, the Registrar’s Agent stated that the Appellant has rented a vehicle and therefore has an alternative to the impounded vehicle. However, as the Tribunal finds that the vehicle was stolen at the time of the impoundment, it will not be necessary to consider the defence 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 motor vehicle.
LICENCE APPEAL TRIBUNAL
Geneviève Blais, Member
Released: May 6, 2016