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.L. Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Panel: Zahra Dhanani, Member
Appearances:
For the Appellant: S.L., Appellant For the Respondent: Steve Grootenboer, Respondent’s Agent
Place and date of hearing: Teleconference September 19, 2017
REASONS FOR DECISION:
A. Overview:
1S.L.’s car was impounded in Toronto. S.L. was on vacation in Philadelphia during the time and her husband A.J. was in Toronto. On August 19, 2017 A.J. found S.L.’s hidden set of spare keys and drove off with her car. He did not inform her or have her consent to do this. A.J. was stopped by the police that day while he was driving S.L.’s car. He was charged, arrested and because his licence was suspended S.L.’s car was impounded.
2On August 20, 2017, police called S.L. and informed her that her car had been impounded. The car was to be impounded for 45 days from that date. S.L. appealed the impoundment of her car for two reasons: 1) her car was stolen at the time and 2) it has caused her exceptional hardship.
3A hearing was held on September 19, 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”).
4I have decided that the car was stolen at the time of the impoundment and order that the Registrar of Motor Vehicles release S.L.’s car. Because I found the car was stolen I did not address the issue of exceptional hardship.
B. ISSUES:
5The issues, before me were:
a. Whether I should order the Registrar to release the vehicle on the basis that the vehicle was stolen?
b. Whether I should order the Registrar to release the vehicle on the basis that the impoundment will result in exceptional hardship?
A. LAW:
6Section 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.
7The relevant section of subsection 55.1(3) of the Act states:
(3) A motor vehicle detained under subsection (1) shall be impounded as follows:
- 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.
8Regulation 631/98 provides that the prescribed period, referred to above, is two years.
9The owner may appeal the impoundment on only four specific grounds set out in subsection 50.2(3). The Appellant has appealed under section (a) and (d):
(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;
(d) that the impoundment will result in exceptional hardship.
10It is the Appellant who must present evidence to prove her appeal on a balance of probabilities.
ANALYSIS: STOLEN
11The meaning of “stolen” is not defined in the Act.
12The Tribunal has held that a vehicle is stolen if it is taken without the owner’s consent. That consent may be express or implied. There is also no requirement that criminal charges must be pursued before a vehicle can be considered stolen.
13The 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.
14The Tribunal has found that a vehicle can be considered stolen even when it is taken by a family member. In the case of 9236 v. Registrar of Motor Vehicles, 2014 CanLII 79514 (ON LAT), the member found that the appellant’s common-law spouse took the vehicle without the appellant’s permission. The appellant was aware her common-law spouse’s driver’s licence was suspended and she specifically told him not to drive her vehicle.
15S.L. had been out of Toronto for many weeks before the date the car was impounded. She stated that she had taken her primary car keys with her on her trip and she had left her car in its designated parking spot. Her spare set of keys were hidden in a purse she never uses that sits on a shelf with other purses she does not use. She had not told anyone the location of the spare set of keys and kept them there for access in case she lost her primary set.
16The Registrar argued that S.L. did not act responsibly for her car, she did not protect herself or her car because she did not take the spare set of car keys on her vacation with her. He stated that S.L. knew her husband’s history, knew that he had a bad record and therefore could not be trusted.
17I had the benefit of hearing directly from S.L. I find that S.L. testified in a straightforward and forthcoming manner. She responded to the many questions asked without hesitation. I found that S.L. was authentic in her emotional expression and came across as speaking truthfully. I find her evidence to be credible.
18Because of ongoing relationship difficulties she has told A.J. several times not to use her car. He has had his licence suspended in the past and she has told him to never drive her car during those times. When she left on her trip, she knew her husband’s licence was suspended and she told him not to touch her car while she was gone.
19Originally S.L. used to store spare car keys in a safe because in 2015 her husband had taken her car without her permission. At one point after this, she had lost her primary set of car keys and was left in a bind because she was not able to access the secondary set as they were locked up and the safe key was lost as well.
20She now stored the keys in a secret yet accessible hiding place. A place where her husband would have no reason to look.
21S.L. stated that A.J. had never driven her car in her presence anytime that his licence was suspended since she told him in 2015 not to drive her car without her permission.
22I disagree with the Registrar that S.L. did not protect herself or her car because she had a spare set of keys in the house. The whole point of having a spare set of keys is in the case of loss of the primary set or in an emergency the spare set of keys is accessible. S.L. did not expect A.J. would be searching through her personal property to find the keys and S.L. is not responsible for A.J.’s illegal behaviour of stealing her keys.
23It is clear from S.L.’s evidence that she did everything a reasonable person would think of to make sure that her husband A.J. did not drive her car: 1) she took her primary car keys with her, 2) she told him not to drive her car while she was away and 3) she hid her spare set of car keys in a place where she thought her husband would never look.
24The Registrar submitted that the intent of the legislation is to promote public safety by preventing unlicensed, unlawful and unsafe drivers from operating motor vehicles.
25This is clearly an important and worthy public interest to protect.
26The intent of the law however is not to punish innocent bystanders who are caught under legal frameworks because of the actions of other people. The Act provides an appeal if a car is impounded when it is stolen, for this reason.
27I find that S.L. was not responsible for A.J.’s actions on the day that her car was impounded. The car belonged to S.L. and not A.J., he was told by her that he could never take her car without her consent. This was clearly articulated in their relationship.
28When the police had called her to tell her that the car had been impounded they also informed her that A.J. had been charged for driving while under the influence of alcohol. S.L. stated that when she was younger she had been hit by a drunk driver and that she will never be accepting of people who drive when they are not supposed to. She thinks it is very irresponsible and looks down on this behaviour. Again S.L. stated emphatically that she would never have consented to any of the behaviour that A.J. engaged in to cause the car to be impounded.
29Just because S.L. and A.J. are married does not mean that he can take her things without her permission. Nor does it mean that she has to bear the brunt of his illegal behaviour that she had no knowledge of and would never have consented to.
30In support of his position the Registrar put forward the case of Auto Zone Rentals Inc. v. Registrar of Motor Vehicles, 2016 ONLAT 10149. The appellant in this case was a rental car operator, they had rented out the car when it was impounded. The person whom they had rented the car to was not the person driving the car at the time it was impounded.
31The Registrar stated that this decision stands for the principle that the term “stolen” should be interpreted with a higher standard than “taken” or “use of property contrary to the owner’s instructions”. I agree, that is one of the emerging principles from this decision. I find however that the case before us is different.
32In Auto Zone Rentals, there was “no evidence as to how or why the vehicle came to be operated by a driver with a suspended licence, nor any evidence that the vehicle was operated by such a driver without the renter’s knowledge or permission. The only evidence the Tribunal heard was that the vehicle was used contrary to the Appellants instructions.” Auto Zone Rentals also states that the Act has provided for the reality that rental car companies are in a different position than other owners of cars.
33In the case before us, S.L. is not a rental car operator. We also have evidence that S.L. forbade A.J. to use her car without her consent. This is a very different set of facts with much more evidence than was available in Auto Zone Rentals. Finally, while the case of Auto Zone Rentals is instructive it is not binding.
CONCLUSION:
34I find that A.J. took the vehicle without S.L’s knowledge or permission and therefore, in the circumstances of this case, I find that the vehicle was stolen.
35There is no need to address the second issue relating to exceptional hardship because S.L. was successful on her appeal on the ground that the vehicle was stolen.
ORDER:
36After considering the evidence, pursuant to section 50.2(5) of the Act, I order that the Registrar release the motor vehicle.
Zahra Dhanani, Member
Released: November 16, 2017