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:
R.R.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Joanne E. Foot, Member
Appearances:
For the Appellant: R.R. Self-represented
For the Respondent: Sonia de Santis, Agent
Place and Date of Hearing: By Teleconference
August 3, 2018
REASONS FOR DECISION AND ORDER
A. Overview
1A teleconference hearing was held on August 3, 2018 to consider the appellant’s appeal of the impoundment of her 2008 Pontiac (the “vehicle”) on July 3, 2018 for 45 days. At the time of impoundment the appellant’s vehicle was being driven by P.C., a man the appellant described as her former boyfriend.
2The appeal was made on the basis that the impoundment has caused R.R. exceptional hardship. However, during the hearing, R.R. gave evidence that the vehicle was taken without her consent and that she had reported it stolen to the police. In consequence, the Tribunal has also considered whether the vehicle was stolen. The appellant submits that the impoundment will result in exceptional hardship to her because she needs the vehicle to get to her employment, to care for her daughter and because she is in financial hardship.
B. RESULT
3I find that the appellant’s evidence supports a finding that the vehicle was stolen at the time of impoundment. Given this finding, there is no need to consider whether the impoundment results in exceptional hardship.
C. ISSUES
4The issues to be determined are:
a. Was R.R.’s vehicle stolen at the time that it was driven by the suspended driver?
b. Has the impoundment caused R.R. exceptional hardship?
D. LAW
5The intent of the legislation is to promote public safety by preventing unlicensed drivers from operating motor vehicles. Pursuant to s.55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”), a vehicle shall be detained and impounded where the licence of the person driving the vehicle is under suspension.
6An owner whose vehicle has been impounded can appeal to the Tribunal to have the Registrar release the vehicle, on the basis of any of the grounds listed in s.50.2 of the HTA. R.R. appealed to the Tribunal based on s.50.2(3)(d), and the Tribunal has considered an additional ground based on the evidence, namely s.50.2(3)(a). These provisions state:
s.50.2(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.
E. ANALYSIS
a. Was the vehicle stolen?
7The meaning of stolen is not defined in the HTA. In Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745, the Divisional Court held the Tribunal should not limit the meaning of “stolen” only to an intention to take the vehicle permanently. The Court stated:
In our opinion a vehicle is ‘stolen’ in this context when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.
8The determination of whether a car has been stolen is highly dependent upon the facts of the situation. There is no requirement that the car be reported stolen, or even that the denial of permission be explicit, but these are factors that may support a conclusion of stolen. At the very least, the Tribunal must find that the appellant did not implicitly consent or reasonably expect to have the vehicle taken, and takes into consideration whether the appellant took reasonable steps to ensure that this would not happen.
9The appellant’s evidence was consistent. She planned to go to a bar with her friend, C.B., to celebrate her new job. C.B. invited her ex-boyfriend, P.C., to join them. The three of them stayed at the bar for a period of time. The appellant was intending to leave the bar when C.B. took her car keys from the counter, expressing the opinion that she had too much to drink to drive home.
10The appellant testified that she had consumed 5 or 6 drinks and agreed with C.B.’s assessment that she should not drive. She explained that she had intended to walk home and retrieve the vehicle in the morning. However, C.B. refused to return her keys when she requested them. She then requested that C.B. return the car to her residence within the next half an hour as she needed the vehicle for work the next day, at which point she left the bar and walked home. C.B. agreed to this request.
11After the appellant arrived home, around 10:00 p.m. or 10:30 p.m., she communicated with C.B. and demanded that he return the vehicle to her home within half an hour, failing which she would call the police.
12The appellant fell asleep while waiting for the return of her car and woke up at about 4:30 a.m. and saw that her vehicle had not been returned. At that point she contacted the local police to report her vehicle stolen. The police informed her that her vehicle had been impounded and was “not technically stolen”. She did not learn that it was P.C. the suspended driver, not C.B., driving the vehicle until later in the day on July 3, 2018.
13The appellant testified that it was her expectation that C.B. would drop off her car at her home. She further testified that she and C.B. were aware that P.C.’s driver’s licence was under suspension and that she did not think that C.B. would permit P.C. to drive her vehicle.
14We must consider whether there is evidence that the appellant implicitly consented to P.C. driving her vehicle. Both the appellant and C.B. knew of P.C.’s driver’s licence suspension. With this in mind and having regard to C.B.’s agreement to return the car that evening, it is not unexpected that the appellant would not have made an explicit prohibition against P.C. driving. I do not find that the appellant implicitly consented to P.C. driving the vehicle. As such, the appeal succeeds on the ground that the vehicle was stolen at the time of impoundment.
b. Will the impoundment result in exceptional hardship?
15I have found that the appellant’s evidence supports a finding that the vehicle was stolen at the time of impoundment. Given this finding, there is no need to consider this second ground of appeal, whether the impoundment results in exceptional hardship.
F. ORDER
16Pursuant to subsection 50.2(5) of the HTA, I order the Registrar to release the appellant’s vehicle.
LICENCE APPEAL TRIBUNAL
Joanne E. Foot
Released: August 17, 2018