C.B. v. Registrar of Motor Vehicles, 2018 CanLII 117011

Date: 2018-10-15

File Number: 11608/MVIA

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:

C.B.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Jacqueline Castel

Appearances:

For the Appellant: C.B., Self-Represented

For the Respondent: Stella Velocci, Agent

Place and Date of Hearing: By Teleconference

October 9, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A teleconference hearing was held on October 9, 2018 to consider the appellant’s appeal of the 45 day impoundment of her 2005 Ford Mustang (the “vehicle”). The vehicle was impounded on August 22, 2018 and was released to the appellant on October 6, 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 that the impoundment did not result in exceptional hardship within the meaning of s. 50.2(3)(a) and (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 (2) 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 left her vehicle at her father’s home for the weekend while she went to the cottage with her sister-in-law. The appellant’s mother does not reside with her father but was staying at his residence for the weekend to help look after the appellant’s dog. The appellant’s mother has a valid driver’s licence; the appellant’s father, who was the driver of the vehicle at the time that it was impounded, does not have a valid driver’s licence. The appellant and her mother both knew that the appellant’s father did not have a valid driver’s licence.

9The appellant testified that she did not intend for her father to drive the vehicle and gave the keys of the vehicle to her mother. However, the appellant’s mother hung the keys on a key rack at the entrance of her ex-husband’s house so that they were accessible to him; she also left the keys in this location when she returned to her own residence to look after a sick roommate. The appellant’s father drove the vehicle during this time and was stopped by the police, who had the vehicle impounded when they determined he did not possess a valid driver’s licence. The appellant’s father was not charged with theft of the vehicle. These facts pertaining to the impoundment were not disputed by the respondent.

10While I accept that the appellant did not intend for her father to drive her vehicle, she left the vehicle at his residence and no precautions were taken to ensure that he did not drive the vehicle. Her mother was in charge of the vehicle while the appellant was at a cottage for the weekend, and she left the keys accessible to her ex-husband, including when she was not present to ensure that he did not drive the vehicle. 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 single mother with four children. She does not receive child support. She works part-time cleaning houses and lost two clients while her vehicle was impounded because she could not get to their homes without a vehicle. She did not have anyone to drive her to the homes of these clients, on the dates she was meant to clean for them, and it was not possible to take public transportation with all of her cleaning supplies. The appellant was able to use public transportation to do errands while her vehicle was impounded and her aunt, who has a vehicle, also assisted her. In addition, the appellant’s aunt loaned her the money to pay the impoundment fees. The appellant and her children are all in good health. They did not miss school or any medical appointments due to the impoundment.

13There is no doubt that the appellant, as well as her aunt, have 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.

14The appellant testified that except for two cleaning jobs, she was able to manage using public transportation or by relying on her aunt to drive her to her jobs or to do errands. The appellant testified that she did not rent a vehicle to attend her cleaning jobs, on the days her aunt was not available to drive her, because she could not afford the rental costs and did not want to borrow the money. The appellant did accept a loan from her aunt to pay the impoundment fees. Although the appellant’s financial reasons for not renting a vehicle are legitimate, I cannot consider such reasons because she has not met the onus of proving that there is no alternative to the impounded vehicle.

15I am sympathetic to the appellant’s situation and the inconvenience and financial difficulties in which she found herself because of the impoundment. However, the appellant’s testimony does not support a finding of exceptional hardship. For that reason, I do not need to consider the other provisions of s. 10 of the regulation.

ORDER:

16Pursuant to subsection 50(2)(5) of the HTA, I deny the appeal and confirm the impoundment order.