D.M. v. Registrar of Motor Vehicles, 2018 CanLII 105281

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

Date: 2018-01-11

Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 from an Impoundment Pursuant to section 55.1(3) of the Act.

D.M.

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR:

Marisa Victor, Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Sanjay Kapur, agent

Place and date of hearing:

Teleconference December 7, 2017

REASONS FOR DECISION AND ORDER:

Overview

1D.M. appeals the impoundment of her 2010 Mercedes Benz. Her vehicle was impounded after being driven by her ex-boyfriend who had a suspended licence. He was arrested during a criminal investigation and the vehicle impounded at that time.

2The appellant appeals on two grounds: one that she did not give permission to her ex-boyfriend to drive the vehicle and two that the impoundment has caused her exceptional hardship.

3After considering the evidence, the Tribunal confirms the impoundment.

ISSUES

4There are two appeal grounds that must be decided in order to determine the appeal of the impoundment:

a. Was the appellant’s vehicle stolen at the time that it was driven by the suspended driver?

b. Has the impoundment caused the appellant exceptional hardship?

PRELIMINARY ISSUES

5The appellant had left her vehicle parked outside the residence of her ex-boyfriend, D.H., for a couple weeks. On October 5, 2017, Constable Young, a police officer, was conducting an investigation and observed D.H. driving the vehicle. On October 10, 2017, five days after that observation, the vehicle was searched pursuant to a search warrant and D.H. was arrested. It was at that time that the vehicle was also impounded on the grounds that D.H. had been observed driving with a suspended licence. The 45-day impoundment start date was backdated to October 5, 2017.

6There were some administrative delays in getting the impoundment documents to the appellant. As a result, the appeal was filed on November 10, 2017, outside of the 15-day time period for appeals.

7The appellant brought a motion to permit the commencement of the appeal despite the filing having been completed outside of the 15-day appeal period. At the start of the motion the Registrar consented to the appeal proceeding despite the filing of the appeal having been completed outside the 15-day appeal period.

8I accepted the position of the parties and the hearing on the merits proceeded.

EVIDENCE & ANALYSIS

A. The appellant’s vehicle was not stolen at the time that it was driven by the suspended driver

9Under subsection 50.2(3)(a) of the Highway Traffic Act, (the HTA), an owner may appeal the impoundment of their vehicle if it was stolen at the time it was detained in order to be impounded.

10The appellant testified that her ex-boyfriend lived downtown and some distance from where she lived. They had been in a relationship for a couple of years. They had recently broken up and she had left her vehicle parked outside his residence and had taken her key with her. She did not have much access to parking where she lived. Due to the break-up of their relationship, she had had no contact with her ex-boyfriend for a couple weeks. She had told her ex-boyfriend’s mother and sister that if they needed to use the car to ask her and she would come down and drive them where they wanted to go.

11On October 10, 2017, her ex-boyfriend’s sister called her and put her on the phone with Constable Young. He explained to her why the car was being impounded. She was asked to bring the key to the house so that the officers would have access to the vehicle.

12The appellant testified that although the police had done a search of the ex-boyfriend’s home they had not found the key. She stated that this supported her position that she had not given her ex-boyfriend the key to her car. She testified that she would not have let her ex-boyfriend drive the car as he did not have a licence. She also testified she is not responsible for her ex-boyfriend’s actions.

13The appellant was asked in cross-examination whether the ex-boyfriend stole the car. She responded that he did not have her permission to drive and she did not know that he had been driving the car. She did not know he had the spare key. She did agree that she didn’t think it was stealing since he brought the car back.

14Constable Young testified for the respondent. He stated that he needed to determine whether the car was stolen for the purpose of his criminal investigation. He recalled that he had asked the appellant if the ex-boyfriend had permission to drive the car. He recalled that she had said the family had her permission to use the vehicle. Constable Young states in cross-examination that he was informed by the appellant that the ex-boyfriend was allowed to use the car.

15The meaning of “stolen” is not defined in the HTA. The 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 word “stolen” could also apply to an intention to take the vehicle temporarily.

16Constable Young’s role was to determine if criminal charges were warranted against the ex-boyfriend. That is not the test before me. There is no requirement that criminal charges must be laid before a vehicle can be considered stolen. I must determine whether the vehicle was stolen on a civil standard based on the evidence before me.

17I find that the vehicle was not stolen for the following reasons:

a. The appellant had willingly left the vehicle at the ex-boyfriend’s residence even though it was nowhere near her own residence;

b. The appellant was aware her car had a spare key;

c. The appellant advised Constable Young that the family had permission to drive the car and that this included the ex-boyfriend.

18I find that the appellant had given permission to the ex-boyfriend to use her car and had left him with the spare key. At worst, she turned a blind eye to his ability to use and drive her car. On a balance of probabilities, I find that the vehicle was not stolen.

B. The impoundment has not caused the appellant exceptional hardship

19Under s. 50.2(3)(d) the HTA, an owner may also appeal the impoundment of their vehicle on the basis that the impoundment will result in exceptional hardship.

20Section 10 of O. Reg. 631/98 provides the criteria to be considered when determining the outcome of an appeal under this section (the Regulation).

21Under the Regulation, I must consider whether no alternative exists for the impounded vehicle which means that every reasonable option has been considered, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.

22Only if there is no reasonable alternative can I consider, whether the impoundment will cause a health of safety concern, or a financial or economic loss that is immediate, significant and lasting. The Regulation states that I cannot consider inconvenience to any person as being exceptional hardship.

23The appellant testified that she lives with her sister and brother-in-law. They have two vehicles. She left the impounded vehicle outside her ex-boyfriend’s residence across town as there was no close parking to her residence. Since she wasn’t working at the time she left the vehicle at her ex-boyfriend’s house, she did not need her car.

24She testified that during the impoundment she was able to use Uber or take a cab. She also had her brother-in-law drive her places. For example, he took time off work to drive her to her graduation.

25In cross-examination, the appellant stated that she had asked both her family and friends to drive her places at other times but they were too busy. She also said that though she was very close with her sister, she never asked her sister to borrow one of her cars. She would prefer being driven. Even if her sister was willing to lend her a vehicle, she stated she would have felt uncomfortable driving it. She also stated that she considered renting a car but that the cost was prohibitive while she wasn’t working.

26The respondent called on Constable Young to testify about his knowledge of the Hamilton public transit system. He estimated the appellant lived no more than a 5-10 minute walk from the nearest bus stop. The bus service would provide access to a network of public transit options up to and including two train stations as well as via rail and greyhound bus service if out of town travel was required.

27Before I can consider if the appellant suffered exceptional hardship, I must find that there were no reasonable alternatives available.

28The appellant lives in a city well serviced by public transit as well as cabs and uber. She used both cabs and uber while she was without a vehicle. In addition, the appellant lives with her sister and brother-in-law who each have a car. Her brother-in-law drove her to her graduation. The appellant could have asked to borrow a car from her family, but did not. She did not look into renting a vehicle.

29In addition, if a vehicle was so necessary for the appellant’s transportation needs, it makes no sense that she would leave it across town for weeks at her ex-boyfriend’s residence simply due to ease of parking.

30The appellant was required to prove that no reasonable alternative to the vehicle existed. I find that she has been unable to meet that burden. The evidence shows there were many reasonable alternative transportation methods open to the appellant. As such, I need not move on to the next step to consider whether the lack of a vehicle caused the appellant any health or safety concerns or significant financial losses.

31I find that the impoundment of the vehicle did not and will not cause exceptional hardship.

ORDER

32After considering the evidence, I confirm the impoundment of the appellant’s motor vehicle for 45 days.