Date: 2017-11-16

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:

N.T. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: N.T.

For the Respondent: Sonia DeSantis, Agent Stella Velocci, 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 2006 Honda (the “vehicle”) on September 10, 2017 for 45 days. At the time of impoundment, the vehicle was driven by her common law husband (“husband”).

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 attend school, 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 of the Act, 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 find the appellant’s vehicle was not stolen at the time it was impounded because the appellant left the keys on a table in the hotel room where they were vacationing with one of their children, accessible to her husband. The appellant’s evidence was that the vehicle was taken by her husband without her permission after an argument. The appellant testified that she tried to warn him that he shouldn’t take the vehicle but he drove off. She said she called the police and reported that the car was stolen. Her husband was arrested and charged with driving without a licence but the charge of stolen was dropped because the appellant and the driver are common law spouses.

9The husband testified that he and the appellant had an argument in the hotel room and that he was very angry, took the keys from the hotel room and drove off. He said his intention was to go and get a coffee, work off steam and then come back for the family. He had no intention to deprive the family of the vehicle. The husband testified that the vehicle was once his but it has now been put in the appellant’s name. He said he was charged with driving while disqualified and this is the only charge resulting from his driving of the vehicle. The appellant did not put evidence forward that she never allowed him to drive the vehicle.

10The 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.

11The respondent argues that a vehicle is not stolen just because it is used contrary to the owner’s instructions and 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.”

12The evidence establishes that the appellant, who knew her husband could not drive the vehicle, provided him with implied consent by leaving the keys accessible to him and in plain view in the hotel room. I find the appellant’s statement that she told him not to take the vehicle as unreliable because it was not corroborated in any way and is at odds with leaving the keys accessible to him. As at the date of the hearing, no criminal charge relating to theft of the vehicle had been laid against the husband and an attempt to do so was unsuccessful.

13Based 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?

14I find that the impoundment will not result in exceptional hardship because the appellant has been able to find alternatives to the impounded vehicle.

15Section 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.

16If 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.

17In 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.

18The 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).

19Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

20The appellant has found alternative means of transportation while her vehicle has been impounded. She testified that she needed the vehicle to attend school, conduct her part-time clothing sales business, take her youngest child to daycare, buy groceries, and drive her husband to work. However, she has been able to address each of these tasks by borrowing a vehicle, taking a taxi, paying someone to drive places, or rescheduling appointments to a time when the vehicle will be released.

21The appellant said she needs the vehicle to attend school. The appellant has enrolled in a part time on-line college course and needs the vehicle to drive to a facility where there is a computer because she does not own a computer. She described the course as a “work at your own pace” schooling. The appellant said that she can catch up on missed course work when she gets her vehicle back. The appellant said she needs the vehicle to conduct her part time clothing sales business which requires her to hold parties and attend trade shows. She said that the business is also conducted on-line although showing samples to prospective customers in person is essential to sales. She said she has not had any sales since the impoundment. The appellant testified that she will be able to resume this business when the vehicle is returned to her. The appellant said she needs the vehicle to care for the children. Her 18-month-old child attends daycare, and since the impoundment she has borrowed a vehicle to take him to daycare. The 6-year-old child goes to school on the school bus. The appellant said she also needs the vehicle to buy groceries and take her youngest child to medical appointments. She said that there has only been one medical appointment missed and that appointment will be rescheduled. Emergency 911 service is available to the appellant where she lives. The appellant testified that she has been able to obtain groceries by paying someone to drive her or her husband to a shopping area. Her husband’s mother has also driven them to the grocery store. Although the appellant spoke of inconvenience, this is not a factor which the Tribunal can take into consideration. The appellant’s husband said he needed the vehicle so that he could be driven to his employment. During the impoundment he has been able to get to his employment by paying for taxis and by asking family members and friends and neighbours to drive him.

22As 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 is a matter of convenience which I am not permitted to consider in determining whether there is exceptional hardship.

23I find that the appellant has not only the help of family, friends, neighbours and taxis but also will be able to resume her on-line course and business activities after the impoundment period, and therefore has alternatives available to her. I 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:

24Pursuant 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