S.H. v. Registrar of Motor Vehicles, 2017 CanLII 50043

LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017-06-27

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.H.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Jeanie Theoharis, Member

Appearances:

For the Appellant: S.H. Tracey Spencer, Paralegal

For the Respondent: Sanjay Kapur, Agent

Teleconference hearing:

May 29, 2017

REASONS FOR DECISION AND ORDER

OVERVIEW

1A teleconference hearing was held on May 29, 2017 to consider the appellant’s appeal of the impoundment of her 2006 Hummer on April 28, 2017 for 45 days.

2The appellant submits that the vehicle was stolen at the time it was detained to be impounded, and also that the impoundment will result in exceptional hardship to herself and her family. She requests that the vehicle be released.

ISSUE

3The issues to be determined are:

(a) Whether the Registrar should release the vehicle on the basis that the appellant’s vehicle was stolen at the time it was impounded?

(b) Whether the Registrar should release the vehicle on the basis that the impoundment will result in exceptional hardship?

CONCLUSION

4I find that the appellant’s evidence fails to support a finding that the vehicle was stolen at the time of impoundment, or that the impoundment results in exceptional hardship.

LAW AND ANALYSIS

5The owner of a vehicle that 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.

7The 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.

Whether the appellant’s vehicle was stolen at the time it was impounded?

8I find the appellant’s vehicle was not stolen at the time it was impounded because the appellant had given consent to her son to use the vehicle whenever he needed it, and the appellant’s son gave permission to his friend to drive the vehicle.

9The 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.

10The appellant relies on 9236 v. Registrar of Motor Vehicles, 2014 CanLII 79514 (ON LAT) to support a finding that a vehicle can be considered stolen when it is taken by a family member. In that case, the member found that the appellant’s common-law spouse took the vehicle without the appellant’s permission. In particular, the appellant’s evidence indicated that she was aware her common-law spouse’s driver’s licence was suspended, she specifically told him not to drive her vehicle, and upon being notified of the impoundment, she asked the police whether she could press charges against her common-law spouse.

11Our case is distinguishable from 9236 because in the present case, the appellant gave her consent to her son to drive the car when he needed it. She testified that he had full use of the vehicle, he could use it as needed and when needed, he was insured to drive the vehicle, and he did not need to ask his mother for prior permission before taking the vehicle.

12The evidence also established that the appellant’s son had taken the vehicle out for the evening. Having consumed some alcohol, he allowed his friend to drive the vehicle, unbeknownst to him that his friend’s driver’s licence was suspended. The vehicle was stopped by a police officer and found that the driver had a suspended licence. The vehicle was subsequently impounded.

13Moreover, Officer Luke Dent testified that when he spoke to the appellant about the vehicle impoundment, she did not mention to him that the vehicle had been stolen.

14Based on the evidence presented at the hearing, I do not find the vehicle was stolen at the time it was impounded because the appellant’s son had the appellant’s consent to regularly use the vehicle. Moreover, the fact that the appellant’s son allowed his friend to drive the vehicle does not make it stolen.

Whether the impoundment will result in exceptional hardship?

15I find the impoundment will not result in exceptional hardship because the appellant owns and has the use of alternate vehicles.

16Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10(1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

…the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.

17If the appellant is able to establish that there is no alternative to the impounded vehicle, then I must consider, under s. 10(1), whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

18In limited circumstances described below, I may also consider whether the impoundment will result in the following types of losses, listed in s. 10(2) of the Regulation:

(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 or of an educational or training opportunity to any person

19The financial, employment and educational losses listed above may only be considered if all of the criteria listed in s. 10(3) of the Regulation are met:

(a) No alternative to the impounded motor vehicle is available;

(b) The loss will be immediate, significant and lasting;

(c) The impact of the loss will be upon a person ordinarily transported by the motor vehicle; and

(d) the impact of the loss,

(i) will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and

(ii) will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d).

20Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

21The appellant is the registered owner to three vehicles: a 2006 Hummer (impounded vehicle), 2016 Dodge, and a 2004 Jeep. The appellant’s spouse is the primary driver of the 2016 Dodge, and uses this vehicle to travel to and from work on a daily basis.

22Prior to the impoundment, the appellant and her son would share usage of the 2006 Hummer. She would have access to the Hummer during the day, and her son would use it to go to work in the evening. The appellant’s son works in Mississauga between the hours of 7:00 p.m. and 7:00 a.m.

23Prior to the impoundment, the appellant, the appellant’s spouse and the appellant’s son had two vehicles that were road worthy, the 2016 Dodge and the 2006 Hummer. The 2004 Jeep was not road worthy and was not driven by the appellant or her family. Thus, between the three drivers, they were essentially sharing two drivable vehicles.

24Subsequent to the impoundment, the 2004 Jeep was repaired and made road worthy. The appellant’s son has been using the Jeep to travel to and from work, and he indicated that the vehicle, having been repaired, is now operational. I find that the appellant, following the impoundment, has had the use of the 2004 Jeep because it has been repaired and made reliable for use.

25The appellant argued that as a result of the impoundment, she is unable to drive her son to his medical appointments, attend school, drive her granddaughter to school, and also claims inconvenience and financial hardship.

26The appellant has an alternative to the impounded vehicle, namely use of the 2004 Jeep. Therefore, I am unable to consider the appellant’s submissions related to financial or economic loss or loss of education. The appellant’s preference to drive a vehicle of choice, the 2006 Hummer, is a matter of convenience, which I am not permitted to consider in determining whether there is exceptional hardship.

27I find the appellant has the use of an alternative vehicle. I find the appellant has not established that the impoundment will result in exceptional hardship.

ORDER

28Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.