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: 2017-12-04

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:

M.S. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Zahra Dhanani, Member

Appearances:

For the Appellant: M.S., Appellant

For the Respondent: Sanjay Kapur, Agent

Place and date of hearing: Teleconference, October 20, 2017

REASONS FOR DECISION:

Overview

1M.S.’s truck was impounded in Muskoka on August 19, 2017. M.S. lives in Toronto but he was vacationing at his cottage in Muskoka at that time. He was not driving or in his truck when it was impounded, his nephew J.S. was driving the truck. At the time J.S. was stopped by the police, his licence was suspended so M.S.’s truck was impounded.

2The police called M.S. and informed him that his truck had been impounded. The truck was to be impounded for 45 days from that date. M.S. originally appealed the impoundment of his truck for two reasons: 1) his truck was stolen at the time and 2) it has caused him exceptional hardship.

3At the hearing M.S. withdrew the ground of appeal dealing with exceptional hardship relying solely on the ground that his truck had been stolen.

4A hearing was held on October 20th, 2017, 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”).

5I have decided that the truck was not stolen at the time of the impoundment and therefore confirm the Registrar of Motor Vehicles decision to impound M.S.’s car.

ISSUES

6The sole issue, before me was:

a. Whether I should order the Registrar to release the vehicle on the basis that the vehicle was stolen?

LAW

7Section 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.

8The owner may appeal the impoundment on only four specific grounds set out in subsection 50.2(3). The appellant based his appeal on section (a):

(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.

9It is the appellant who must present evidence to prove his appeal on a balance of probabilities.

ANALYSIS: STOLEN

10The meaning of “stolen” is not defined in the Act.

11The Tribunal has held that a vehicle is stolen if it is taken without the owner’s consent. That consent may be express or implied. There is also no requirement that criminal charges must be pursued before a vehicle can be considered stolen.

12The 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.

13M.S. and his friend had gone to his nephew J.S.’s house near Muskoka to check in about something. M.S. and his friend had driven to his nephew’s house in different vehicles. When they left J.S.’s house they drove off in the friend’s car and M.S. left his truck at his nephew’s house, expecting to return the next day to get it.

14It is at some point after M.S. left with his friend, that his nephew J.S. took M.S.’s truck and went for a drive.

15J.S. is M.S.’s deceased brother’s son. They are very close. J.S. has the keys to M.S.’s truck and has had frequent use of the truck for several years. It was very clear that M.S. is like a father to J.S..

16The Registrar provided documentation of J.S.’s driving record which has over 10 infractions on it, most of which occurred in vehicles registered to M.S., including two prior incidents where M.S.’s vehicles were impounded while his nephew was driving. J.S. has also been arrested for speeding several times while driving vehicles registered in M.S.’s name.

17M.S. denied knowing that his nephew had a very bad driving record. This is not plausible given that his vehicles were impounded twice while his nephew had been driving.

18The Registrar argued that M.S. did not act responsibly for his truck by leaving it with his nephew who has a history of irresponsible driving. He stated that M.S. knew his nephew’s history, knew that he had a bad record and therefore could not be trusted.

19I heard directly from M.S.. I find that M.S. was not a credible witness. At one point when his inconsistencies were pointed out, M.S. boldly asserted that he could have “lied and said that his nephew had just taken the truck from his house.” I found M.S.’s assertions and allegations in light of the history of long term use of his truck by his nephew to be wholly unbelievable.

20M.S. did not meet his burden of proof to support his argument with evidence that would convince me his nephew stole his truck. I believe that J.S. has access to his uncle’s truck as much as he would like.

21M.S. stated that J.S. did not have his authorisation to drive his truck, there was nothing presented by M.S. to support this assertion.

22When asked if he will get his nephew to pay him back, M.S. stated that his nephew does not have enough money right now. The fact that he is not demanding repayment weighs against M.S.’s assertion that J.S. stole his car. The impoundment will amount to a large sum of money.

23It is clear that J.S. relies on his uncle for many things, M.S. was the person his nephew called to bail him out of prison when the truck was impounded.

24When the police called him about his truck being impounded M.S. did not take the opportunity to say that his truck had been stolen. When M.S. was asked about an incident of reckless driving by his nephew, he defended his nephew’s actions.

25The Registrar submitted that M.S. has been turning a blind eye to his nephew’s unsafe and illegal driving. From the evidence before me, I agree that the evidence suggests that M.S. continues to allow J.S. to use his vehicles despite his pattern of irresponsible driving.

26The Registrar submitted that the intent of the legislation is to promote public safety by preventing unlicensed, unlawful and unsafe drivers from operating motor vehicles.

27This is clearly an important and worthy public interest to protect. Owners are responsible for protecting the privilege to own and operate a vehicle in public. Neglecting this responsibility can have dire effects.

28J.S.’s driving record is so bad that his uncle will hopefully take his truck keys back and never leave his nephew with his truck unsupervised.

CONCLUSION

29I find that the vehicle was not stolen.

ORDER

30After considering the evidence, pursuant to section 50.2(5) of the Act, I confirm the Registrars decision to impound M.S.’s truck.