Licence Appeal Tribunal
Safety, Licensing Appeals and Standards Tribunals Ontario
Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
Date: 2017-12-14
Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act for driving while suspended.
Between:
S.S. Appellant
And
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Adjudicator: Avril A. Farlam, Vice-Chair
Appearances:
For the Appellant: S.S. For the Respondent: Stella Velocci, Agent
Heard by teleconference: December 1, 2017
REASONS FOR DECISION AND ORDER
A. Overview
1A teleconference hearing was held on December 1, 2017 to consider the appellant’s appeal of the impoundment of her 1998 Honda (the “vehicle”) on October 13, 2017 for 45 days. At the time of impoundment the appellant’s vehicle was being driven by a man the appellant described as her landlord.
2The appellant submits that the vehicle was stolen at the time it was detained to be impounded and that the impoundment will result in exceptional hardship to her because she needs the vehicle to get to her employment, to get to medical appointments and because she is in financial hardship.
B. ISSUES:
3The issues to be determined are:
a. Was the appellant’s vehicle stolen at the time it was detained in order to be impounded?
b. Will the impoundment result in exceptional hardship?
C. CONCLUSION:
4I find that the appellant’s evidence supports a finding that the vehicle was stolen at the time of impoundment. Given this finding, there is no need to consider whether the impoundment results in exceptional hardship.
D. LAW AND ANALYSIS:
5The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.
6An owner may appeal only on the grounds set out in s. 50.2(3) of the HTA:
(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;
Stolen
7The meaning of stolen is not defined in the HTA. A vehicle is stolen if it is taken without the owner’s consent. That consent may be express or implied.
8The 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 stated that the word “stolen” could also apply to an intention to take the vehicle temporarily.
9The appellant seeks to have her vehicle released on the basis that the vehicle was stolen at the time it was detained in order to be impounded; or alternatively that the impoundment will result in exceptional hardship.
Was the appellant’s vehicle stolen at the time it was impounded?
10I find that the vehicle was stolen at the time it was impounded because it was taken without the appellant’s express or implied consent.
11The appellant and her child moved into the landlord’s home in July 2017. She testified that she rented a room from him which has no lock on the door. She parked her car in his driveway. The landlord told her he owned a vehicle which was being fixed. She did not know his licence was suspended. They never discussed him driving her car. The appellant works the night shift at a group home in another municipality and uses her vehicle to drive to work. On the morning of October 13, 2017, the appellant drove home after working a night shift, parked her vehicle in the driveway and went to sleep. She was awoken by a phone call from her landlord who said he was down the street and her car was about to be impounded. She walked down the street in her pajamas and was told that the landlord’s licence was suspended. She was told that he took her keys while she was sleeping. The appellant did not report the vehicle as stolen or give a statement to the police.
12Constable Powell confirmed that while the vehicle was being impounded the appellant arrived on foot in her pajamas. He testified that he believed the appellant and the driver of the vehicle were in a domestic relationship and that she appeared to be aware he couldn’t drive but did not explain the basis for this belief. He had never seen the landlord driving her vehicle before. He had witnessed that the vehicle was missing from the driveway before but did not know who had been driving it. Constable Powell also said that the appellant did not bring up the landlord and tenant relationship. He confirmed that she moved out of her landlord’s home after the impoundment with the assistance of the police approximately the end of October 2017.
13The appellant’s testimony that her vehicle was taken without her consent was credible, consistent and given in a straightforward manner. She had been living in the landlord’s house for less than four months when the impoundment occurred, and moved out shortly after with the assistance of the police. She would have no reason to suspect the landlord would drive her vehicle as they had never discussed it. She had been told by him that he had his own vehicle which was being fixed. She kept the keys in her room while she was sleeping. A vehicle can be considered stolen even though criminal charges are not pursued. Constable Powell had no direct evidence to give on the issue of whether the appellant had given her consent to the landlord to drive her vehicle.
14The weight of the evidence indicates that her landlord drove the vehicle without the appellant’s knowledge or consent, express or implied. Based on the evidence presented at the hearing, I find that the landlord took the appellant’s vehicle without her knowledge or consent and therefore, in the particular circumstances of this case, the appellant’s vehicle was stolen with the meaning of the HTA.
Will the impoundment result in exceptional hardship?
15I have found that the appellant’s evidence supports a finding that the vehicle was stolen at the time of impoundment. Given this finding, there is no need to consider this second ground of appeal, whether the impoundment results in exceptional hardship.
ORDER:
Pursuant to subsection 50.2(5) of the HTA, I order the Registrar to release the motor vehicle.
Avril A. Farlam, Vice-Chair
Released: December 14, 2017