S.S. v. Registrar of Motor Vehicles, 2018 CanLII 117008

Date: 2018-10-24

Appeal under subsection 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

Between:

S.S.

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Jacqueline Castel

Appearances:

For the Appellant: S.S., Self-Represented

For the Respondent: Sanjay Kapur, Agent

Place and Date of Hearing: By Teleconference October 23, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A teleconference hearing was held on October 23, 2018 to consider the appellant’s appeal of the 45 day impoundment of her Mercedes GLE (the “vehicle”). The vehicle was impounded on September 16, 2018 and is due to be released on October 31, 2018.

ISSUES:

2The issues to be determined are:

(i) Was the vehicle stolen when it was impounded?

(ii) Will the impoundment result in exceptional hardship?

CONCLUSION:

3On the evidence before me at the hearing, I find that the vehicle was not stolen and the impoundment did not result in exceptional hardship within the meaning of s. 50.2 (a) & (d) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act” or the “HTA”).

LAW AND ANALYSIS:

4The owner of a vehicle that has been impounded pursuant to s. 55.1 of the HTA, may pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

5There are limited grounds on which an owner may appeal an impoundment as set out in section 50.2(3) of the HTA. The appellant in this case appealed on two grounds: (i) that the vehicle was stolen when it was impounded; and (ii) that the impoundment will cause her exceptional hardship.

Stolen

6In order to establish that the vehicle was stolen within the meaning of s. 50.2(3)(a) of the Act, the appellant must prove that the vehicle was taken without the owner’s express or implied consent.

7The 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 held that the term “stolen” could also apply to an intention to take the vehicle temporarily.

8The appellant testified that her husband, the suspended driver, took the keys to her vehicle, without telling her, to run a quick errand. The keys were in the appellant’s purse, which she left on the sofa in the living room. The appellant was in the bedroom changing her child’s diapers when her husband took the keys. She testified that she always keeps her keys in this location and her husband was aware of this. She has never specifically communicated to her husband that he cannot take the keys to her vehicle or drive her vehicle without her permission.

9The appellant also admitted that she does not believe her husband was stealing the vehicle at the time of the impoundment, and the police have not charged her husband with theft of the vehicle.

10While I accept that the appellant did not intend for her husband to drive her vehicle, she left the keys in a location which was accessible to her husband. In these circumstances, I am unable to find that the vehicle was stolen within the meaning of s. 50.2(3)(a) of the Act.

Exceptional Hardship

11Section 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. In order to establish exceptional hardship, the first requirement set out in 10(1) of the Regulation is that there is no alternative to the impounded vehicle. If I find that there is an alternative to the impounded vehicle, then I need not consider any other requirements. I find that the appellant has not met this first requirement.

12The appellant is a stay-at-home mother. She has two children, 1 ½ and 4 years of age. The 4 year old attends school. She requires her vehicle to do errands and to take her son to and from school.

13Since the appellant’s vehicle was impounded, family members and friends have assisted her in doing errands and driving her son to and from school. The appellant has also used public transportation to do errands. The appellant’s spouse has been employed at the same place for approximately 16 years, and he carpools to and from work. The appellant’s spouse is paying for the vehicle, and he will pay the impoundment fees as well.

14There is no doubt that the appellant has been inconvenienced because of the impoundment. However, the evidence does not support exceptional hardship. To establish exceptional hardship, the appellant must prove, first of all, that there is no alternative to the impounded vehicle, and she has not done so.

15The appellant testified that she has been able to manage without her vehicle by relying on the assistance of friends and family members and by using public transportation.

16I am sympathetic to the appellant’s situation and the inconvenience in which she found herself because of the impoundment. However, the appellant’s testimony does not support a finding of exceptional hardship. For this reason, I do not need to consider the other provisions of s. 10 of the regulation.

ORDER:

17Pursuant to subsection 50(2)(5) of the HTA, I deny the appeal and confirm the impoundment order.