Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10577/MVIA
CASE NAME: 10577 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: Jacqueline Castel, Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: January 4, 2017
REASONS FOR DECISION
A hearing was held on January 4, 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”).
Pursuant to section 50.2(5), the Tribunal CONFIRMS THE IMPOUNDMENT. As a result, the Appellant’s motor vehicle will remain detained at the impound facility for the 45 days.
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: 2004 Ford, CSF (the “vehicle”)
Date of Appeal: December 16, 2016
ISSUES
As set out in the Appellant’s request for hearing, the owner appeals on the basis that the motor vehicle was stolen and that the loss of the vehicle will result in exceptional hardship, all 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
A summary of the Appellant’s evidence follows.
The Appellant’s boyfriend, “SM”, purchased the vehicle for her at an auction in November 2016 for approximately $1,100. After registering the vehicle in her name, the Appellant left it parked in front of SM’s residence. She resides about an hour away from SM. She was aware that SM’s driver’s licence was under suspension. She did not know that he had kept a spare set of keys for the vehicle at his home. On one occasion, she asked him to back the vehicle out of the driveway. She learned after the fact that he had also driven the vehicle on a couple of other occasions without her explicit permission.
On November 29, 2016, she was notified by the OPP that the vehicle was in a hit and run collision. At this time, she did not know who was driving the vehicle and believed that it had been stolen. SM eventually admitted to her that he was the one driving the vehicle when the collision occurred and he also confessed to the police. The Appellant did not tell SM that he had her permission to drive the vehicle on the date of the accident; however, she no longer felt the vehicle was stolen. She notified her insurance company that the vehicle had been found and that it was not stolen. On December 10, 2016, she was notified that the vehicle was impounded.
The Appellant is a single mother with two boys. She works part-time, and is on a tight budget. She also owns another vehicle. The cost of repairing the impounded vehicle and getting it out of impoundment will exceed the amount she paid for the vehicle. The Appellant testified that SM has indicated that he would assist her in paying for the costs of repairing the vehicle.
Evidence for the Registrar
A summary of the Registrar’s evidence follows.
Mr. Kapur called Police Constable (“Const.”) Domenic Laflamme as a witness. Const. Laflamme testified that on November 29, 2016, he responded to a call respecting a collision. Since the registered owner of the vehicle lived outside his police force’s jurisdiction, he asked the OPP to attend the owner’s residence. The badge number of the OPP officer is 14275, but he does not have a record of the officer’s name. Const. Laflamme indicated that SM eventually confessed to being the one who was driving the vehicle when the collision occurred. Const. Laflamme stated that he did not believe that SM stole the vehicle given that his clothes were found in the vehicle and the key to the vehicle was hanging over the microwave in his kitchen. As such, he did not charge SM with theft.
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.
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 under the Criminal Code of Canada of driving with a blood/alcohol content in excess of .08, pursuant to which the driver’s licence of the driver was then under suspension until October 13, 2018.
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 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 sections 50.2(3)(a) and (d).
According to subsection 50.2(5) of the Act, on appeal the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle. According to subsection 50.2(8) of the Act, the decision of the Tribunal is final and binding.
Section 50.2(3)(a)
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 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.”
Section 50.2(3)(d)
According to subsection 50.2(5) of the Act, on appeal the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle. According to subsection 50.2(3) of the Act, the decision of the Tribunal is final and binding.
The Shorter Oxford English Dictionary, 3rd ed. defines “exceptional” and “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.
According to subsection 50.2(4), an individual cannot appeal on the ground of exceptional hardship if any of their previous motor vehicles had been impounded under section 55.1 in the past.
Section 10 of Ontario Regulation 631/98 sets out the criteria that can and cannot be considered when determining if there is exceptional hardship. First, the Tribunal must consider whether no alternative exists for the impounded vehicle. If there is no alternative, then whether the impoundment will result in a threat to the health and safety or to the environment or property of a community in whose service the vehicle is ordinarily used.
Generally, the Tribunal may not consider:
- financial or economic loss to any person,
- loss of employment or employment opportunity to any person, or
- loss of education or training.
However, the Tribunal may consider the financial economic loss to any person, the loss of employment or the loss of education, if the owner of the motor vehicle 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.
According to subsection 10(4) of the Regulation, to show that no alternative to the impounded motor vehicle is available, the Appellant must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss, including using another vehicle and making arrangements to do without any motor vehicle during the period of the impoundment.
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
For the purpose of subsection 50.2(3)(a), the motor vehicle must be stolen when it was detained in order to be impounded. The Appellant initially believed the vehicle was stolen, when she was notified by the police that the vehicle was in an accident on November 29, 2016. However, when the vehicle was impounded on December 10, 2016, the Appellant no longer considered the vehicle to be stolen. By this time, her boyfriend had admitted to her that he was the one who was driving the vehicle, which she had left in front of his house. When SM confessed to being the one driving the vehicle, the Appellant notified her insurance company that the vehicle had not been stolen. The police never charged SM with theft of the vehicle.
Despite the above points, it was still open for the Appellant to appeal on the ground that SM had stolen the vehicle from her, since the concept of “stolen” in the impoundment appeal context may be different from “stolen” for the purposes of a criminal charge. However, in this case, there are circumstances that suggest this vehicle was not taken from the Appellant without her permission. The vehicle was parked at SM’s residence, which was an hour away from where the Appellant lived. She acknowledged knowing that SM’s licence was under suspension and letting SM back the vehicle out of the driveway on one other occasion. She also acknowledged that the Appellant had driven the vehicle a couple of other times without her explicit permission. There was no evidence that the Appellant responded to this by explicitly telling SM that he could not drive her vehicle. There is not enough evidence in this case to find that the Appellant has proven that SM took her vehicle without her permission. Accordingly, the vehicle does not qualify as stolen, for the purpose of subsection 50.2(3)(a).
For the purpose of subsection 50.2(3)(d) regarding exceptional hardship, the Appellant admitted that she has another vehicle and that she has only owned the vehicle which was impounded for a short period of time (i.e., since November 2016). Since purchasing the vehicle, she has left it at her boyfriend’s residence which is about one hour from her home. This evidence clearly means that the Appellant has reasonable alternatives to her impounded vehicle. This alone means that the Appellant has not proven exceptional hardship, as defined in the legislation.
In any event, even if there was not an alternative to the impounded vehicle, the other part of the Appellant’s case for exceptional hardship would also not meet the legislative test. Any financial loss is required to be “immediate, significant and lasting.” Although she testified to being a single mother of two boys and on a tight budget, she did not provide any evidence to substantiate a financial loss of this nature. Her argument was essentially that the cost of repairing the vehicle, as a result of the collision, plus the impoundment fees, will exceed the value of the vehicle. This does not qualify as exceptional hardship for the purpose of subsection 50.2(3)(d).
DECISION
After considering the evidence, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal confirms the impoundment of the Appellant’s motor vehicle, and it will remain at the impound facility for the full 45 days.
LICENCE APPEAL TRIBUNAL
Jacqueline Castel, Member
RELEASED: January 10, 2017