Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10005/MVIA
CASE NAME: 10005 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: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: February 9, 2016
REASONS FOR DECISION
A hearing was held on February 9, 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: The Appellant
Motor Vehicle: 2008 DODG RPC (the “vehicle”)
Date of Appeal: January 25, 2016
ISSUES
As set out in the Appellant’s request for hearing (Exhibit #2), the owner appeals on the basis the vehicle was stolen and that the loss of the vehicle will result in exceptional hardship, as provided in sections 50.2(3)(a) 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 impoundment will result in exceptional hardship?
FACTS
Evidence for the Appellant
The Appellant is the single mother of a 3 year old child and is expecting a second child whose father is the suspended driver in this case. The Appellant works Mondays through Thursdays as a legal assistant to a criminal lawyer who works from his home approximately 15 minutes drive from the Appellant’s apartment in a small municipality. The Appellant explained that in the summer of 2015 she and the suspended driver moved to a home in another municipality approximately 60 minutes away from the apartment. However, the Appellant maintained the apartment , where she spent pMaondays to Thursdays, her normal work week. She currently resides in the apartment. The Appellant and the suspended driver are no longer a couple; shortly after the impoundment, the Appellant called the police to have him removed from her home. However, his only income is from social assistance and she stated that because he is the father of the baby she is expecting, she allows him to stay at the apartment in “the cold room” if he has nowhere else to stay.
The Appellant is aware of the status of the suspended driver’s licence. She testified that she normally keeps the keys hidden in a dresser drawer in the bedroom. The suspended driver did not have her consent to take her vehicle on the day of the impoundment. Asked if he had driven the vehicle before, she said that he did not although he had driven it to move it on their property. The Appellant also testified that the suspended driver told the arresting officer that he had taken the vehicle without her consent.
The Appellant’s normal routine is to drive her vehicle to work, dropping her daughter off at day-care on the way. Because the day-care is in the opposite direction from her employer’s office, the trip takes approximately 25 minutes. On the day of the impoundment, she had been driven to work by a friend because her daughter was going to spend the day with the friend’s child. Because there was “no gas” in her vehicle, she was happy to accept a ride. That morning, she and the suspended driver had fought. He later told her that he took her vehicle because he intended to put gas into it for her. The Appellant testified that she regarded this as an attempt to make up for the fight, noting that he had also cleaned the house for her that day. On cross-examination, she was asked how much gas her vehicle had in it. She stated that she was not certain but noted that she would have been surprised if the suspended driver had made it all the way to the gas station he apparently was headed to since the gas light would have been on in the vehicle.
The Appellant testified that when she was telephoned by police at approximately 4 p.m. and advised of the impoundment, she was in a state of shock. However, her first reaction was to “do her job” and treat the call, which she received at work, as she would any call to the lawyer’s office. She spoke to Constable Newhouse, the investigating officer, when she went to the police station at approximately 5:30 to pick up the suspended driver but otherwise did not call him. She could not recall the exact time, but sometime later in the evening she called the police station and spoke to the sergeant, whose name she could not recall, who told her the decision to lay charges was up to police and not to her. She was told Constable Newhouse was not at work then. She therefore decided to appeal the impoundment. She noted that if she could do it differently, she would not have left the police station without having charges laid.
The Appellant is the only person who works in the lawyer’s office. Since the impoundment, she has found it difficult to get into work. There is no public transit available and she estimates that a taxi would cost her a minimum of $30. She has received rides from her friend, from the lawyer’s son when his work takes him in that direction, and, occasionally, from other people who are driving in that direction. However, she estimated that she has worked from home approximately 50% of the time. She noted this was difficult because she has no access to software she needs. As a result, billings have fallen behind. And, because she works for a criminal lawyer, it would be inappropriate to remove disclosure documents from the office to take home with her. She also noted that she does not take her daughter to day-care on the days she works from home and that she cannot work consistently with a young child with her. The Appellant has not told her employer about the vehicle impoundment because she believes that her personal issues should not be brought into her work life. Rather, she has told him that her vehicle is being repaired. She indicated that the leeway she has been given is “getting thin” but she wanted to see the outcome of this appeal before deciding what to do next.
The Appellant described her role as that of a personal assistant to her employer. For example, she assists by driving his wife to appointments and by picking up prescriptions for her. She has been able to use the lawyer’s vehicle for these purposes when it has been available. However, this is only possible if her employer is not in court. She also noted that she herself is unable to perform tasks such as going to the post office or filing documents at court without a vehicle. She has made no court appearances since the impoundment but has had to retain agents to appear and ask for adjournments, increasing clients’ costs.
The Appellant earns $35,000 annually. To date, she has been receiving her regular pay. Should she miss work, she expects the days would be docked from her two weeks annual vacation. She stated that she cannot afford to rent a vehicle which, based on her experience renting one a few years ago, she estimates would cost her $70 a day. However, she has not enquired as to what the current cost might be. She estimated that she normally spends $20 daily on gas for her vehicle. She has been giving gas money to the individuals who have been helping her out by driving her.
The Appellant has missed no medical appointments since the impoundment. Her friend was able to drive her to her first pre-natal appointment which was approximately 30 minutes drive from her home. She has a time-sensitive appointment scheduled for February 12 and indicated she cannot miss this even if it means she would have to pay for a cab to reach it. Her daughter has had no medical appointments but she noted that two appointments need to be scheduled. The Appellant has been able to get groceries from a store within walking distance of her home.
The Appellant has another vehicle registered to her name. She testified that the vehicle is actually her friend’s and that she has no direct access to it; the Appellant registered it and insured it in her name to assist her friend. The friend uses this vehicle regularly to transport her daughter who has special needs and to visit her father who is ill. However, because the friend does not work, she has been able to assist the Appellant during the impoundment period.
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 driving while disqualified under the Criminal Code of Canada pursuant to which the driver’s licence of the driver was then under suspension until December 9, 2016.
Constable Jeffrey Newhouse, the officer who arrested the suspended driver and impounded the vehicle, testified on behalf of the Registrar. He testified that when he impounded the vehicle, the suspended driver told him that he was on his way to fill up the vehicle at a gas station in another municipality. Constable Newhouse noted that this gas station is not the closest to the Appellant’s home. Based on his observations of the suspended driver’s clothing, Constable Newhouse stated “I guess he was going snowmobiling”.
The suspended driver told Constable Newhouse that the vehicle belonged to his girlfriend. Constable Newhouse advised him that the vehicle would be impounded for 45 days regardless of who owned it or if charges were laid. Nothing suggested to Constable Newhouse that the vehicle was stolen. Rather, he characterized the suspended driver’s comments as canvassing how to avoid the impoundment and its costs. He then noted that had the Appellant told him that the vehicle had been taken without her consent that he would have charged the suspended driver.
Constable Newhouse searched the vehicle and found personal belongings, including a bag of the suspended driver’s clothing, as well as a child’s safety seat. There was a snowmobile licence in the suspended driver’s wallet. Constable Newhouse repeated that his impression was that the suspended driver was ready to go snowmobiling.
Constable Newhouse called the suspended driver’s lawyer at approximately 4 p.m. The Appellant answered the phone. Constable Newhouse indicated this was an unusual situation since the Appellant was both the owner of the vehicle and the suspended driver’s lawyer’s assistant. He told the Appellant the vehicle was impounded and discussed the charges against the suspended driver as they were known at that time. He testified that the Appellant was upset but that she did not mention to him that the vehicle had been stolen or anything to that effect. Constable Newhouse indicated that he was gauging her reaction because he knew that the suspended driver was looking for a way to avoid paying the impoundment fees. He stated that he knew once she spoke to the suspended driver that he would probably talk to her about the issue of consent. Constable Newhouse stated that he did not write down the details of the conversation, but the Appellant’s reaction was to tell him about how the suspended driver was trying to improve his life.
Approximately 30 minutes after this call, the Appellant called the police station to confirm whether or not the suspended driver was going to be released and Constable Newhouse spoke to her again. There was no discussion about charges being laid with respect to the vehicle being stolen.
Constable Newhouse has no notes but believes he contacted the Appellant again to tell her that the suspended driver was going to be released. He could not recall whether he called the Appellant or if she called him. He did speak to her when she arrived at the police station to pick up the suspended driver; because the station was actually closed, he let her in. They had a quick conversation and she was upset. He gave her his contact information but she did not contact him again.
Constable Newhouse then stated that there would normally be no sergeant at the station in the evenings. And, normally, any calls would be routed to the investigating officer and he was still at the station at 6:30 p.m. the evening of the impoundment, but received no call or message from the Appellant.
On January 30, 2015, Constable Newhouse went to the Appellant’s home to serve documents on the suspended driver. The Appellant answered the door and told Constable Newhouse that the suspended driver was in the other municipality where she and the suspended driver had a home. She told him that she was not driving all the way to that municipality to get him. Constable Newhouse testified that he assumed that meant she had access to a vehicle but then stated “I’m not sure”.
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 section 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 first issue to be considered is whether or not the motor vehicle was stolen at the time it was detained.
Mr. Kapur submitted that the Appellant in this case was being opportunistic. He referred the Tribunal to 7370 v. Registrar of Motor Vehicles, 2012 CanLII 27174, in which the Tribunal wrote:
The argument that a suspended driver has stolen the vehicle is one that is easy to assert by an Applicant. Thus, the Tribunal must use a great deal of circumspection in considering this argument. The Tribunal must consider the totality of the facts to determine if, in fact, the vehicle was stolen or if the argument is being used opportunistically.
Mr. Kapur suggested that a “common sense” reading of the evidence indicates that the suspended driver’s use of the vehicle was a planned expedition. The Appellant was driven to work by her friend to enable the suspended driver to use the vehicle. The suspended driver was not headed towards the closest gas station to the Appellant’s home when he was stopped by police but was headed to a station on the way to a snowmobiling area. The keys were hidden in an “obvious” spot. Further, the Appellant had no discussions with Constable Newhouse about laying charges. And, in Constable Newhouse’s view, the suspended driver only raised the issue of consent in the context of avoiding impoundment fees. The phone call the Appellant testified she made to a sergeant at the police station is “mythical”; the Appellant has a legal background and she should have obtained the sergeant’s name. Finally, the suspended driver is still staying with the Appellant and this “doesn’t jive” if he took her vehicle without her consent.
The Appellant’s testimony is that she did not give her consent to the suspended driver to use her vehicle. She was well aware of the status of his licence and kept the keys hidden. She acknowledged that he had driven the vehicle on the property to park it, but testified she never allowed him to drive it otherwise. She was not at home when the vehicle was taken. She believes the suspended driver took the vehicle to put gas in it as a favour to her to make up for a fight they had. In her closing statement, she indicated that she had not heard anything about a snowmobiling expedition until she heard Constable Newhouse’s testimony at this hearing. Finally, she stated she chose to appeal the impoundment after being told in a phone call to the police station that it was not up to her to lay charges.
The Tribunal found the Appellant’s testimony to be credible. She was also consistent through a lengthy, often repetitive and sometimes aggressive cross-examination. The Tribunal accepts that the suspended driver told the Appellant he took the vehicle to purchase gas for her and notes this is consistent with what Constable Newhouse testified the suspended driver told him. While this may not have been the entire story the suspended driver told the officer, there is no evidence before the Tribunal to support the speculation that the Appellant was party to any plan the suspended driver may have had to use the vehicle for other purposes that day. The mere fact that the Appellant did not drive the vehicle to work that day is insufficient to establish this alleged collusion. The Appellant testified that she was well aware of the suspended driver’s licence status, that she hid the keys and that he had only driven the vehicle on the property. The Appellant was credible and there was no evidence to contradict this testimony.
There was much testimony at this hearing with respect to the number of calls between the Appellant and Constable Newhouse, the timing of those calls and the fact that the Appellant did not ask Constable Newhouse to lay charges. The Tribunal notes that the Appellant was initially notified, not in her capacity as owner of the vehicle, but because she was the legal assistant to the suspended driver’s lawyer. The three calls Constable Newhouse described all took place in the short period between the time he returned to the police station with the suspended driver and the time the Appellant picked up the driver, which the Tribunal estimates to total approximately 90 minutes. The Appellant described herself as being in shock. Constable Newhouse testified she was upset and that her first reaction was to speak to how the suspended driver had been trying to turn his life around. In the Tribunal’s view, this emphasis on the driver rather than the vehicle is consistent with the Appellant’s testimony that she focused on doing her job.
Constable Newhouse testified that he viewed the suspended driver’s comments about the ownership of the vehicle when he was first stopped as a means of canvassing how to avoid paying impoundment fees. He also stated that he “knew” that if the suspended driver spoke to the Appellant that he would probably talk to her about the issue of consent. The officer provided no basis for these opinions and therefore the Tribunal finds these comments to be speculative.
The Tribunal does not find that the fact that the Appellant did not immediately raise the issue of consent in the initial calls diminishes her credibility. The Appellant had just discovered that the father of her expected baby had been arrested and she received the call, not as owner of the vehicle, but as the assistant to the suspended driver’s lawyer.
The Tribunal also notes that throughout this lengthy hearing, the Appellant disparagingly expressed what the Tribunal can only describe as exasperation with the suspended driver and his actions a number of times. These expressions were spontaneous, leading the Tribunal to accept that the Appellant is, as she testified, estranged from the suspended driver. As the Appellant noted, the suspended driver is the father of her expected baby. The Tribunal therefore places no weight on the fact that she still allows the driver to stay at her home notwithstanding the fact she was adamant that he took her vehicle without her consent.
The Appellant testified that after she had picked up the suspended driver and had some time to think, she called the police station and spoke to a sergeant at the police station some time after she returned home with the suspended driver and was told that it was not her decision to lay charges. She was pressed for the time of this call by the Registrar’s representative and gave an initial estimate but then stated she could not be sure. Constable Newhouse’s testimony was that normal procedure would be that any such call would be routed to him, that he was at the station until 6:30 p.m., and that he received no call. He also noted that a sergeant would not normally be at the station in the evening. While the Tribunal is somewhat surprised that the Appellant did not record the name of the person to whom she spoke, it notes that Constable Newhouse’s testimony does not contradict the Appellant’s. She could well have made a call and spoken to someone after the officer left.
Further, the Tribunal notes it is not necessary for charges to be laid for the ground of “stolen” to be proven. For the purposes of an impoundment appeal, the meaning of “stolen” does not necessarily require the criminal intent of the suspended driver. In this case, the evidence indicates there was no consent given by the owner.
The Tribunal therefore finds, as set out in subsection 50.2 (3)(a) of the Act, that the vehicle was stolen at the time it was detained. Having found that the vehicle was stolen, there is no need for the Tribunal to consider the ground 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 vehicle.
LICENCE APPEAL TRIBUNAL
Mary Ann Spencer, Member
RELEASED: February 11, 2016