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: 2017-12-06

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:

Palmer Telecom Inc. Appellant(s)

-and-

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Jacqueline Castel, Member

Appearances: For the Appellant: Jeya Reginold, agent For the Respondent: Sanjay Kapur, agent

Heard by teleconference: November 29, 2017

REASONS FOR DECISION AND ORDER:

A. Overview

1The appellant, Palmar Telecom Inc., is appealing the impoundment of its motor vehicle on the ground that his vehicle was stolen.

2The appellant provided the vehicle to Jake Tech Ltd. (“Jake Tech”), a shop that specializes in repairing engines, for extensive repairs approximately eighteen months ago.

3A volunteer apprentice of Jake Tech, “B.R.”, drove the vehicle and was involved in a motor vehicle crash. B.R.’s licence was under suspension at the time. As a result, the vehicle was impounded.

4The owner of Jake Tech, Jeya Reginold, had told B.R. he was not permitted to operate any of the vehicles at the auto body shop, since his driver’s licence was under suspension.

5I am required to determine whether the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded, considering the relevant provisions of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”) and regulations.

6I find that the vehicle was stolen and order the Registrar to release it. Reasons follow.

B. ISSUES:

7The appellant raises one issue on this appeal:

Was the motor vehicle stolen at the time that it was detained in order to be impounded?

C. EVIDENCE:

Appellant’s Evidence

8Mr. Reginold is the owner of Jake Tech, and he acted as the appellant’s agent at the hearing. He testified that the appellant provided him with its vehicle approximately eighteen months ago. The vehicle required extensive repairs and the appellant was in no rush to have it back. The appellant was gradually purchasing the necessary parts to repair the vehicle. Mr. Reginold completed the repairs on October 6, 2017.

9Mr. Reginold also testified that B.R. is a “friend of a family friend” who he allowed to work at Jake Tech as an apprentice. He stated that he was aware of B.R.’s driving record, including his most recent conviction for impaired driving. He was also aware that B.R.’s licence was under suspension. He indicated that he told B.R. he was not permitted to drive any of the vehicles at Jake Tech. He also explained that he always asks the owners of the vehicles to test drive their vehicles. This is not something he or his staff do. He stated that he has one other licensed technician who works for him.

10Mr. Reginold explained that he or his technician are usually present and supervising B.R. when he is working as an apprentice at the shop. However, he admitted that neither he nor his technician can watch B.R. every minute of the work day, and there are times when B.R. is not being supervised directly by anyone.

11Mr. Reginold testified that there have been other occasions where he has caught B.R. sitting in the driver’s seat of one of the vehicles at the shop with the engine turned on. On each of these occasions, Mr. Reginold has repeated to B.R. that he is not allowed to drive the vehicles. Mr. Reginold also testified that he typically hides the keys of the vehicles from B.R. For instance, the day before B.R. drove the vehicle, he hid the keys under a carpet in a boat he was repairing.

12On October 7, 2017, the day that B.R. drove the vehicle, Mr. Reginold admitted that the keys were not hidden. They were on a bench in between two computers. Mr. Reginold does not recall what he was doing when B.R. managed to take the keys of the vehicle and drive off with it. Mr. Reginold did not realize that B.R. and the vehicle were missing until B.R. called him to say that he “messed up”, took the vehicle, got into an accident and fled the scene of the accident. Mr. Reginold advised B.R. to turn himself into the police and got the location of the vehicle from B.R. Mr. Reginold subsequently called 911 to report what had happened.

13Mr. Reginold filed and the Tribunal admitted into evidence the Motor Vehicle Accident Report prepared by the Toronto Police Service concerning the motor vehicle collision on October 7, 2017 involving B.R., who was driving the appellant’s vehicle; three other drivers and vehicles were involved in the collision. The report shows that B.R. was charged under s. 130 of the HTA for careless driving and under sections 252(1.1) and 259(4) of the Criminal Code of Canada R.S.C. 1985, Chap. C-46 (the “Criminal Code” or the “Code”) for failure to stop at the scene of an accident and operation of a motor vehicle while disqualified, respectively.

Respondent’s Evidence

14Police Constable (“P.C.”) Connor Vaivods of the Toronto Police Service testified on behalf of the respondent. He was called to attend the motor vehicle collision on October 7, 2017, discovered that the driver of the vehicle who caused the collision, B.R., was a disqualified driver, and therefore had the vehicle impounded.

15P.C. Vaivods testified that Mr. Reginold told him that B.R. was his employee and that he took the vehicle without his consent.

16P.C. Vaivods stated that B.R. was not charged with theft under the Criminal Code. He explained that there were insufficient grounds to charge B.R. with theft. P.C. Vaivods stated that based on the evidence, B.R. was “joyriding”. He explained that this is a separate, lesser offence under the Criminal Code, which involves taking a vehicle with the intent to drive it and ultimately return it to the owner.

17Mr. Kapur filed the following documents which were admitted into the record:

1. 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.

2. 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 “Code” outlined in point 4 below;

3. Copy of the Notice forwarded to the Registrar of Motor Vehicles regarding the impoundment; and

4. Copy of the Ministry of Transportation records indicating that the driver, at the time of impoundment, was convicted of impaired driving under the Code on April 4, 2017 pursuant to which his driver’s licence was suspended until April 4, 2018.

D. LAW:

18Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the HTA, the officer is required to detain and impound the vehicle. Under section 55.1 of the HTA, the impound period is 45 days if there has been no previous impoundment in the last two years.

19Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal and on which the Tribunal may order the Registrar to release the motor vehicle. The appellant appeals on the basis of paragraph (a) of s. 50.2(3), which states:

(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;

20“Stolen” is not defined under the HTA. Although the burden of proof under the HTA (balance of probabilities) is different than under the Criminal Code (beyond a reasonable doubt), the Criminal Code provides guidance on the meaning of the word “stolen”. Section 2 of the Code states that “steal” means to commit theft. Section 322(1) of the Code defines “theft” as follows:

322(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 purpose of the 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.

21There is another section of the Code which makes it a lesser offence to take a vehicle, among other things, without consent. Section 335(1) of the Code states:

subject to subsection (1.1), everyone who, without consent of the owner, takes a motor vehicle or vessel with intent to drive, use, navigate or operate it or cause it to be driven, used, navigated or operated, or is an occupant of a motor vehicle or vessel knowing that it was taken without the consent of the owner, is guilty of an offence punishable on summary conviction.

This section of the Code is typically used for joyriding.

22In Lafrance v. R., 1973 CanLII 35 (SCC), [1975] 2 SCR 201, a case about joyriding, the Supreme Court of Canada made clear that for a conviction of theft, it is not necessary to find that the accused intended to keep the vehicle. Specifically, the court found that the trial judge erred in law in holding that because the appellant intended to return the motor vehicle, he could not have intended to commit theft and could only be charged with the lesser offence of taking the vehicle without consent.

23The Divisonal 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” 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 in 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.”

24Following a hearing under s. 50.2(5) of the HTA, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

E. ANALYSIS:

25I find that the appellant’s vehicle was stolen within the meaning of the Act.

26Referring to the evidence of P.C. Vaivods, Mr. Kapur submitted that B.R. took the vehicle without the consent of the appellant’s agent for the purpose of joyriding. He also submitted that taking a vehicle without consent is a lesser separate offence which does not constitute theft. Mr. Kapur argued that the word “stolen” under the HTA should be interpreted to mean a higher standard than the words “take without consent”.

27P.C. Vaivods determined there were insufficient grounds to charge B.R. with theft under the Criminal Code, where the burden of proof is higher. However, this does not preclude a finding of stolen for the purpose of s. 50.2(3)(a) of the HTA.

28I disagree with Mr. Kapur that “take without consent” is not “stolen” for the purpose of s.50.2(3) of the HTA. The fact that B.R. may have been joyriding and intending to return the vehicle does not preclude a finding that the vehicle was stolen under the HTA. It is not necessary to prove that B.R. was intending to take the vehicle into his permanent possession. Based on the evidence, B.R. took the vehicle into his temporary possession without the permission or knowledge of the owner and, therefore, intended to deprive the owner of it at least temporarily. As the Divisional Court sated in Marshall v. Ontario, supra, this qualifies as stolen under the HTA.

29Mr. Reginold, the owner of Jake Tech, was not blameless in what transpired. He hired B.R. as an apprentice in a shop which repairs motor vehicles knowing full well that he was a disqualified driver with a lengthy record under the HTA. He admitted that B.R. was not under constant supervision, and he did not hide or secure the keys on the day that B.R. took the appellant’s vehicle without permission. He also admitted that he had caught B.R. sitting in the driver’s seat of vehicles at his shop with the engine turned on.

30Nevertheless, Mr. Reginold is not the appellant or owner of the vehicle, and it is the appellant’s interests which are being considered in this appeal. The appellant entrusted Jake Tech with its vehicle for the purpose of repairing it. When someone leaves their car at an auto shop for repair, they do not give express or implied consent for a disqualified driver to take their vehicle for a joyride, not to mention cause a motor vehicle collision with said vehicle. Certainly from the owner’s perspective, B.R. stole his vehicle when he drove it out of the shop; the fact that B.R. may have intended to return it does not negate this. The appellant was an innocent victim here and should not be burdened with the impoundment fees.

ORDER:

31Therefore, for the above reasons, pursuant to subsection 50.2(5) of the HTA, I order the Registrar to release the appellant’s motor vehicle.

LICENCE APPEAL TRIBUNAL