Licence Appeal Tribunal
Tribunal d'appel en matière de permis
DATE: 2016-05-04
FILE: 10156/MVIA
CASE NAME: 10156 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.
10156 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Gary Yee, Associate Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by teleconference: April 26, 2016
REASONS FOR DECISION
This is an appeal by the Appellant from the impoundment of her pick-up truck on March 23, 2016, after her daughter’s boyfriend drove it when his driver’s licence was under a Criminal Code suspension. The Appellant knew about this suspension and had told both her daughter and her boyfriend that he was not allowed to drive the vehicle. The daughter was driving her boyfriend to his medical appointment when she apparently became ill and her boyfriend took over the driving. The main issue in this appeal is whether the motor vehicle was “stolen.” Another issue is whether the impoundment has caused “exceptional hardship” as defined in the legislation.
The Tribunal finds that the Appellant’s actions in not permitting the suspended driver to drive her vehicle were enough to support the ground that her vehicle was “stolen” by that driver when it was impounded. Under section 50.2(5) of the Highway Traffic Act (the “Act”), the Tribunal issued an Order to Release the vehicle on April 28, 2016, with these reasons to follow.
Issue
Did the Appellant prove that her vehicle had been “stolen” within the meaning of the impoundment provisions in the Highway Traffic Act?
The Tribunal finds that the Appellant clearly communicated the conditions under which she was permitting her 19 year-old daughter to drive the vehicle. This included not allowing her daughter’s boyfriend, CM, to drive it. The evidence strongly supports that CM knew or ought to have known that he did not have permission to drive this vehicle, even though it was a situation where the Appellant’s daughter had become sick while driving CM to his medical appointment.
The Appellant found out in November 2015 that her daughter and CM were dating. Her daughter asked to borrow the Appellant’s truck to drive CM because his licence was suspended. Soon after, the daughter informed her parents that she was pregnant and due in August 2016. The Appellant and her spouse offered CM an opportunity to stay at their house rent-free. As part of this arrangement, he made a commitment to be on a “back-on-track” program and turn his life around.
The Appellant has repeated her restrictions on the use of her truck a number of times, including in February and March 2016. During one of those times, at the end of February 2016, the Appellant and her spouse talked to their daughter and CM about the consequences of drinking and driving. CM responded and confirmed that he was not allowed to drive the truck.
The Appellant also thought about the possibility of installing an ignition locking device for the time when CM could begin driving again, but she said she did not want that installed on her truck. This evidence supports the fact that the Appellant was very conscious of the fact that CM was under a licence suspension for impaired driving. The Appellant also stated that when she hands her truck keys to her daughter, she repeats to her that she is the only one who is to drive. The Appellant said her daughter has ADHD, depression and anxiety, and the Appellant has a practice of repeating rules and instructions to her.
The Appellant provided hearsay evidence about the circumstances leading to CM driving the vehicle and the ensuing impoundment, based on what she heard from her daughter, CM and the police officer at the scene. The Appellant did not call any of these people as witnesses, but the Tribunal accepts her testimony about these events. Furthermore, the questions from the Respondent and the Tribunal did not change the plausibility of her second-hand knowledge of what happened at the scene. The Appellant was generally credible, although some of her answers appeared unfocused and did not directly address the question or the relevant issues.
On the day of the impoundment, the Appellant’s daughter was driving CM to a medical appointment at a methadone clinic. At some point, she was feeling sick, and she exited the vehicle. The daughter later told the Appellant that she did not let CM drive, and he just took it on himself to do this. The Appellant acknowledged that it was not clear what happened, and she wondered if her daughter was “under duress.” The Tribunal does not need to speculate to that extent about what happened, but it does appear that the daughter did not explicitly permit CM to drive.
In cross-examination, the Appellant said she later had spoken to CM, who told her that he thought her daughter was incapable of driving at that time, and he had to get to his medical appointment, which he claimed was a medical emergency. The Appellant disagreed with CM on that last point, and he seemed angry that she had challenged him.
The Appellant and her spouse were very clear in their communications to both their daughter and CM about him not being allowed to drive. The Appellant said that CM also knew about their concerns that if he drove the vehicle, it would be without any insurance coverage. The Appellant stated that even if there had been no impoundment, she would have imposed consequences on CM if she had found out about him driving the vehicle. The Appellant said that CM would have lost his rent-free accommodation at the Appellant’s house anyway, and he would not be driven around by her daughter or spouse any more. The Appellant said CM would or should have known this was the risk and the consequences he faced by breaking this rule about not driving her vehicle. As it turned out, after this incident, CM moved out, and the Appellant’s daughter left with him.
The Appellant testified that the police officer told her that there would be no criminal charges against CM because he was using the vehicle to get to his medical appointment, and CM was intending to return it. The Appellant tried to raise the point that CM still did not have her permission, and that her daughter had no authority to give permission to drive a vehicle that was the Appellant’s. In fact, the officer told the Appellant that CM admitted that he knew he was driving the vehicle without the Appellant’s permission. Despite this, it is not surprising that the police decided to not lay any charges. While charges of theft may strengthen an Appellant’s case to prove the “stolen” grounds in an impoundment appeal, the lack of charges does not necessarily weaken an appeal before the Tribunal. It is a very different matter to prove a criminal offence of theft, which requires that the accused’s criminal intent be proven beyond a reasonable doubt.
In contrast, in impoundment appeals, the focus is not on the suspended driver and whether they are guilty or should face a penalty. Instead, the focus is on the vehicle owner and whether they have any grounds to get their vehicle back or whether they must lose their vehicle for the period of impoundment and also pay the costs for the towing and the daily storage fees.
As noted in this Tribunal’s decision in LAT 9424/MVIA, the purpose of the impoundment legislation appears to be to reduce opportunities for certain suspended drivers to have access to vehicles, and to encourage vehicle owners to be more careful about who they let use their vehicles. This will help to promote more safety on the roads. Section 55.1(36) of the HTA states: “The impoundment of a motor vehicle under this section is intended to promote compliance with this Act and to thereby safeguard the public and does not constitute an alternative to any proceeding or penalty arising from the same circumstances or around the same time.”
The burden of proof is on the Appellant to prove one of the four possible grounds of appeal in s. 50.2(3) of the HTA. The concept of “stolen” in s. 50.2(3)(a) should not place the Appellant in the very difficult position of proving that the suspended driver is somehow guilty of “theft” under the Criminal Code, and therefore having to prove that the suspended driver had a criminal intent to “steal” the Appellant’s vehicle. In some cases, the Appellant does not even know who the suspended driver is. In this case at least, there appears to be some hearsay evidence that the driver actually knew that he was driving the vehicle without the Appellant’s consent.
The intent of the suspended driver may be a relevant or supporting factor in some cases, but the Tribunal finds that the Appellant is not required to prove that the suspended driver subjectively, and actually, had a criminal intent. To the extent that the circumstances of a case may lead to driver’s intent being relevant, it will be enough to show that the driver knew or ought to have known about the owner’s lack of consent. This would then turn the focus back onto the vehicle owner, and what the owner did to try to ensure that their vehicle would not be used without their authorization.
In this case, the Appellant did everything that could reasonably be expected to ensure that CM would not be driving her vehicle. In view of all of this evidence, which is consistent and credible, the Tribunal finds that the Appellant has proven that her vehicle was “stolen” within the meaning of s. 50.2(3)(a) of the HTA.
Since the Tribunal has found that the Appellant succeeds on the grounds of “stolen,” it is not necessary to decide the ground of “exceptional hardship.”
DECISION
Under the authority of section 50.2(5) of the Act, the Tribunal ordered the Respondent to release the vehicle.
LICENCE APPEAL TRIBUNAL
Gary Yee, Associate Chair
RELEASED: May 04, 2016