LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017-06-14

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:

D-M. D. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Marisa Victor, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Steve Grootenboer, Agent

Place and date of hearing:

By teleconference: June 8, 2017

REASONS FOR DECISION AND ORDER:

Overview

1A hearing was held on June 8, 2017 by teleconference to consider the Appellant’s appeal of the 45-day impoundment of her vehicle pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “Act”).

2Pursuant to section 50.2(5) of the Act, the Tribunal sets aside the impoundment. As a result, the Registrar is ordered to release the Appellant’s motor vehicle.

BACKGROUND

3A 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: 2014 Nissan Rogue (the “vehicle”)

Date of Impoundment: May 1, 2017

Date of Appeal: May 16, 2017

4In the Appellant’s Notice of Appeal (Exhibit #2), the owner appealed on the basis that the vehicle was stolen and that the impoundment of the vehicle will result in exceptional hardship.

ISSUES

5The issues, before the Tribunal were:

a. Should the Tribunal order the Registrar to release the vehicle on the basis that the vehicle was stolen?

b. Should the Tribunal order the Registrar to release the vehicle on the basis that the impoundment will result in exceptional hardship?

EVIDENCE

Evidence for the Appellant

6The Appellant stated that she had hired a friend, K.R., to clean her car as she was planning on selling it the next day. The Appellant testified that she had known K.R. for two years, that he was on the Ontario Disability Support Program (ODSP) and that he is an alcoholic. The Appellant testified that on the day of the impoundment, around 11:30 a.m., K.R. came over to clean the vehicle in the Appellant’s driveway. At approximately 6:00 p.m., the Appellant went to take a nap. She advised K.R. that she would drive him home in a few hours.

7The Appellant testified that a couple hours later, she was woken up by a phone call from the police. She testified that the police officer asked her if she knew where her car was. She stated that the vehicle should be with K.R. who was cleaning it.

8The Appellant was advised that her car was being impounded and that K.R. had been arrested for impaired driving and driving without a licence. She testified that she wanted to press charges and spoke with the police about that. She also stated that she left voice messages with the police, but that the police, after initially refusing to press charges, have since refused to return her phone calls.

9The Appellant also testified that she spoke to K.R. who refused to testify on her behalf as he was already facing jail time and did not want to add a stolen vehicle charge to the list of charges he was already facing.

10The Appellant also testified that K.R. had never taken her vehicle before. She testified adamantly that she had never given him permission to drive her vehicle and that he took it without her knowledge.

11In cross-examination, the Appellant was confronted with a memo from the investigating officer, PC Garnett (exhibit 4, tab 4). The memo states that PC Pogson called the Appellant from the scene of the arrest to tell her that her car was involved in an impaired arrest. The memo states that the Appellant informed PC Pogson that she had loaned the car to K.R. upon being informed of his arrest. It also states that K.R. stated he had been cleaning the vehicle to prepare it for a sale, that he had a shopping list of cleaning supplies with him and that he was at the liquor store to purchase alcohol for the Appellant when he was arrested. The memo also stated that 2 hours after the Appellant was served with the Notice of Impoundment, she wanted to report the vehicle as stolen. In the memo, PC Garnett stated that he believed the Appellant made the stolen vehicle report in order to get her vehicle back from impoundment. He stated that she did not pursue further charges.

12The memo was written on May 31, 2017, and misidentifies the date of impoundment as May 17, 2017. Attached to the memo is an email chain indicating that the correct date is May 1, 2017 and that PC Garnett spoke with PC Pogson regarding the details of his memo.

13The Appellant stated that she had not seen the memo prior to the hearing (although it had been emailed to her in accordance with the disclosure requirements). She stated that the memo was incorrect in that the police officers contacted her from the station and not from the scene of the arrest. She also stated that she told them at the time that her car was with K.R. but that it was in her driveway. She stated that she did not loan it.

14The Appellant also advised that she never lets anyone take the car and that K.R. was not at the liquor store for her.

15The Notice of Appeal filed by the Appellant states that K.R. took her vehicle. Throughout the hearing, the Appellant adamantly and repeated numerous times that she never lent the car to K.R. She also stated several times that she called the police several times after the impoundment to try to have K.R. charged with stealing the vehicle but that the police did not return her call.

16The Appellant also provided evidence about the difficulties she has faced since the impoundment.

17The Appellant is a single mother. She has two daughters, one is 21 years of age and lives independently in Richmond Hill. The older daughter has provided the Appellant with some financial support during the impoundment. The Appellant’s younger daughter is 12 years old and lives with the Appellant. The Appellant does not work and is financially supported by the ODSP.

18The Appellant testified that she has relied on cabs every day to take her daughter to school at a cost of $20 per day. She has no funds to pay for the release of the vehicle from impoundment. She submitted financial documents showing her monthly payment from the ODSP, as well as her Hydro, mortgage and monthly insurance bills. She stated that K.R. is also on the ODSP and has no money to assist with the bills she is facing for the impoundment.

19The evidence tendered by the Registrar showed the following:

a. The vehicle was impounded pursuant to a criminal code suspension;

b. K. R. was driving while under a criminal code suspension;

c. K. R. had a significant record for driving while under suspension.

d. The Appellant is the owner of the impounded vehicle.

20The Registrar confirmed, after questioning from the Tribunal, that two Notices of Impoundment were issued regarding the same vehicle and that some of the information on those forms is slightly different.

21The Registrar also stated that they did not provide officers’ notes to the Tribunal to support the memo as the notes are often illegible. The Registrar assumed that PC Garnett consulted his notes in the drafting of the memo, but could not confirm that. It was not known whether PC Garnett consulted PC Pogson’s notes in the drafting of the memo.

LAW:

22Section 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.

23The relevant section of subsection 55.1(3) of the Act states:

(3) A motor vehicle detained under subsection (1) shall be impounded as follows:

1. 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.

24Regulation 631/98 provides that the prescribed period, referred to above, is two years.

25The 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.

26The Appellant has appealed under section (a) and (d).

27It is the Appellant who must present evidence to prove her appeal on a balance of probabilities.

Stolen

28The meaning of “stolen” is not defined in the Act.

29A vehicle is stolen if it is taken without the owner’s consent. That consent may be express or implied.

30The 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. 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.”

Exceptional Hardship

31Section 10 of O. Reg. 631/98 provides the criteria to be considered and those not to be considered in determining the exceptional hardship ground. 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.

32Generally, the Tribunal may not consider, except in certain circumstances:

a. financial or economic loss to any person,

b. loss of employment or employment opportunity to any person, or

c. loss of education or training.

33However, 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:

a. there is no alternative to the vehicle available,

b. the loss will be immediate, significant and lasting,

c. the impact will be on a person ordinarily transported by the vehicle, and

d. 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.

34According 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.

35The regulation states that the Tribunal cannot consider inconvenience to any person as being exceptional hardship.

APPLICATION OF LAW TO FACTS

36The Appellant was consistent throughout that the vehicle was taken by K.R. without her consent.

37The Registrar asked that the memo from the investigating officer be accepted as truth. This memo relies on what an impaired driver with a lengthy criminal record said about how he obtained the vehicle. Certainly K.R. had a significant reason to lie about how he got the vehicle as he wished to avoid further charges. He refused to testify before the Tribunal for the same reason. No weight is provided to the statements of K.R. who cannot be trusted to tell the truth.

38None of the officers testified. Neither were contemporaneous notes provided to support the memo which was written a month after the arrest. The memo itself had errors in it. The Tribunal finds these errors and omissions troubling and therefore no weight is given to the memo.

39There are two Notices of Impoundment. They each record different times for the arrest and the towing of the vehicle. The Notice of Impoundment provided to the Appellant does not even indicate that K.R. was arrested for impaired driving. Again, the Tribunal finds these errors troubling.

40It does not make any sense that K.R. would spend the day cleaning the vehicle and then go out to purchase cleaning supplies in the evening.

41It also does not make any sense that the Appellant would allow K.R. to drive her vehicle after having cleaned it, the day before she planned to sell the vehicle.

42The Tribunal had the benefit of hearing directly from the Appellant.

43The Tribunal finds that the Appellant testified in a straightforward and forthcoming manner. She responded to the questions asked without hesitation. The Tribunal finds her evidence to be credible. There is no requirement that criminal charges must be pursued before a vehicle can be considered stolen. Even so, the Tribunal finds that the Appellant did indeed take steps to report the vehicle stolen though charges were not forthcoming.

44The Tribunal finds that the suspended driver took the vehicle without the Appellant’s knowledge or permission and therefore, in the circumstances of this case, the vehicle was stolen within the meaning of the Act.

45As the Appellant was successful on her appeal on the grounds that the vehicle was stolen, the Tribunal does not need to consider the second ground of appeal, exceptional hardship.

DECISION

46After 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 motor vehicle.