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
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.R. Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Adjudicator: Avril A. Farlam, Vice-Chair
Appearances:
For the Appellant: Kerlan McLean, Paralegal
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference:
October 12, 2017
REASONS FOR DECISION AND ORDER
A. Overview:
1A teleconference hearing was held on October 12, 2017 to consider the appellant’s appeal of the impoundment of her 2016 Audi (the “vehicle”) on September 18, 2017 for 45 days. At the time of impoundment, the vehicle was driven by a man with whom the appellant has a personal relationship and who is the father of her children (“boyfriend”).
2The appellant submits that the vehicle was stolen at the time it was detained to be impounded and that the impoundment will result in exceptional hardship to her because she needs the vehicle to conduct her business and care for her family.
B. ISSUES:
3The issues to be determined are:
a. Was the appellant’s vehicle stolen at the time it was detained in order to be impounded?
b. Will the impoundment result in exceptional hardship?
C. 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.
D. LAW AND ANALYSIS:
5The owner of a vehicle which 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.
Was the appellant’s vehicle stolen at the time it was impounded?
8I do not find that the vehicle was stolen at the time it was impounded because it was taken with her express or implied consent. The appellant and her boyfriend do not live together but have been in a relationship since 2010 and have two children together. On the evening before the impoundment they were together at the appellant’s home and he stayed the night with her consent. The keys were in her purse which was accessible to her boyfriend. The appellant’s evidence was that her husband took her vehicle without her permission while she was sleeping. The police called her the next morning to tell her he had been arrested. She said that she learned that the vehicle was impounded when she received papers in the mail. She testified that she did not know her boyfriend’s driving licence was suspended. The appellant said her boyfriend works for a construction company. He gets to work by calling others to pick him up and sometimes she drives him. She said he has never driven her vehicle. She said the vehicle was driven without her consent or permission. The appellant did not report the vehicle as stolen, tell the police it was stolen or taken without her permission.
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 respondent relies on Auto Zone & Rentals Inc. v. Registrar of Motor Vehicles, 2016 ONLAT 10149, a decision by Linda P. Lamoureux, Executive Chair at paragraph 16:
“I also find that the Tribunal erred in finding that “stolen” within the meaning of s. 50.2 (3) (a) of the HTA amounts to use of property contrary to the owner’s instructions: such a definition broadens the meaning of “stolen” beyond the ordinary meaning of the term and what the language of the legislation can reasonably support. This was a significant error of law.”
11The appellant’s testimony that her boyfriend took her vehicle without her consent or permission is not credible. Records filed by the respondent show that the boyfriend was stopped by the police on April 24, 2016 driving the appellant’s 2011 Audi Q53, stopped by the police on August 10, 2013 driving her 2011 Audi Q53 and stopped by the police on May 20, 2011 driving her 2005 Honda. One of these incidents resulted in a 7-day impoundment of the appellant’s vehicle. The appellant admitted that she owned all of these vehicles on these dates but said she was unaware of her boyfriend having been stopped by the police and his driving record. It is not believable that the appellant could not have been aware of the other times her boyfriend drove her vehicles and the 7-day impoundment. It appears the appellant has not been completely honest in her testimony before the Tribunal. For example, contrary to her testimony in chief, she admitted in cross examination that she still owns a second vehicle, the 2005 Honda, but said that it is in the shop for repair and will not be roadworthy for another week and a half. Further, although the appellant said she had to rely on other parents to take her child to school, she left the hearing before it concluded in order to take a taxi to pick up her child at school.
12The evidence establishes that the appellant provided her boyfriend with the opportunity to take the vehicle by leaving the keys in her purse which was accessible to him. She did not make any arrangements to safeguard the keys when she went to sleep. The appellant did not tell the police that her boyfriend had taken her vehicle without her permission or that he had stolen it. The appellant did not report her vehicle as stolen or give a statement to the police or ask that a report be made or charges laid against her husband at any time up to the hearing. No statement was made about her vehicle being stolen in the Notice of Appeal received by the Tribunal.
13Constable Cafe, the police officer who impounded the vehicle, gave the impound information to her boyfriend who said he would give it to the appellant. Constable Cafe testified that the boyfriend called the appellant on his cell phone in the officer’s presence to tell her of the impoundment.
14The weight of the evidence indicates that her boyfriend drove the vehicle with her consent, express or implied. The appellant has not established that her vehicle was stolen at the time it was detained in order to be impounded. Based on the evidence presented at the hearing, I do not find that the vehicle was stolen at the time it was impounded.
Will the impoundment result in exceptional hardship?
15I find that the impoundment will not result in exceptional hardship because the appellant has been able to find alternatives to the impounded vehicle. The appellant submits that she needs the vehicle for her work, to take her child to school and medical appointments in Hamilton and to visit her terminally ill father. She says that losing the use of the vehicle has put her to inconvenience and expense.
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. 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 under s. 10(1), I must consider 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 said she does not own a second vehicle. The appellant needs the vehicle to take her child to school because she lives outside of the area serviced by the school bus, to take her child to a Hamilton hospital for medical treatment, to visit her terminally ill father in Quebec and to deliver research work to the downtown Toronto law firm which employs her. Since the impoundment the appellant said her child has only been able to attend school 3 days a week instead of 5. The appellant testified that since the impoundment other parents have taken her child to school. She said that she had not explored alternative ways to take her child to the hospital in Hamilton.
22I find that the appellant has the help of other parents, taxis, access to public transit and her own second vehicle once it is repaired. The appellant lives in an area of Toronto well served by public transit with connections to downtown Toronto and Hamilton and therefore has alternatives available to her.
23I find that the appellant has not established that she has no alternative available to her to get her child to school. The appellant has, with the help of other parents and taxis, arranged for her child to attend school. She has used these alternatives for 3 of the 5 school days per week. The appellant testified that she was able to visit her father over Thanksgiving weekend by taking taxis, an airplane and having a family member pick her up at the airport. Public transit alternatives are available to take her child to a Hamilton hospital for medical treatment but the appellant admits she has not looked into this. Public transit alternatives are available for the appellant to deliver her research work to downtown Toronto. The appellant also owns a second vehicle which is currently being worked on with an expected completion time of a week and a half.
24As the appellant has alternatives available to her to the impounded vehicle, I am unable to consider the appellant’s submissions related to financial or economic loss. The appellant’s preference to drive her own vehicle as opposed to taking public transit is a matter of convenience which I am not permitted to consider in determining whether there is exceptional hardship.
25I find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.
ORDER:
26Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.
Avril A. Farlam, Vice-Chair
Released: November 9, 2017