L.M. v. Registrar of Motor Vehicles, 2018 CanLII 50258

Date: 2018/05/24

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:

L.M. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: L.M., Self-represented

For the Respondent: Stella Velocci, Agent

Heard by Teleconference: May 9, 2018

REASONS FOR DECISION AND ORDER

A. Overview

1A teleconference hearing was held on May 9, 2018 to consider the appellant’s appeal of the impoundment of her 1998 Ford (the “vehicle”) on March 9, 2018 for 45 days. At the time of impoundment the appellant’s vehicle was being driven by her nephew who was temporarily living with her.

2Prior to determining the substantive issues on appeal, the respondent consented to the appellant’s motion for an extension of the time to file the appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) from an impoundment of her vehicle.

3The appellant submits that the vehicle was stolen at the time it was detained to be impounded and that the impoundment will result in exceptional hardship to her because she needs the vehicle to care for her grandchildren, to get to medical appointments and because she is in financial hardship.

B. ISSUES:

4The issues to be determined are:

a. Was the appellant’s vehicle stolen at the time it was detained in order to be impounded?

b. Will the impoundment result in exceptional hardship?

C. CONCLUSION:

5I 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.

D. LAW AND ANALYSIS:

6The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

7An owner may appeal only on the grounds set out in s. 50.2(3) of the HTA:

(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;

(b) that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension;

(c) that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension; or

(d) that the impoundment will result in exceptional hardship.

Stolen

8The meaning of stolen is not defined in the HTA. A vehicle is stolen if it is taken without the owner’s consent. That consent may be express or implied.

9The 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.

10The appellant seeks to have her vehicle released on the basis that the vehicle was stolen at the time it was detained in order to be impounded; or alternatively that the impoundment will result in exceptional hardship.

Was the appellant’s vehicle stolen at the time it was impounded?

11I find that the vehicle was stolen at the time it was impounded because it was taken without the appellant’s express or implied consent.

12The appellant is a 61-year-old woman who cares for her three grandchildren most of the time. She has very limited formal education. At the time of the impoundment, her nephew was living with her temporarily while awaiting other accommodation. On the day before the impoundment, the appellant’s morning routine was interrupted when she received a last minute call asking her to drive another person to a meeting in the United States in the other person’s vehicle. The appellant agreed to do this but had to pack a suitcase for the trip in a hurry and leave within the hour. The appellant usually keeps her keys in her purse. On this day, she remembered having the keys in her hand, intended to put the keys in her pocket and believed she had done so. After driving for several hours, the appellant discovered that her keys were not in her pocket.

13When the appellant returned from her trip the next day she learned from her 14-year-old grandson that her nephew had taken the vehicle. After several calls to the police, the appellant believed she had reported the vehicle as stolen and that her nephew would be charged.

14The appellant’s testimony that her vehicle was taken without her consent was credible, consistent and given in a straightforward manner. She had intended to keep the keys with her but forgot to put them in her pocket as a result of the interruption in the morning routine and the time pressure. The respondent submits that there is no documentary evidence that the nephew has been charged criminally with taking the appellant’s vehicle. However, a vehicle can be considered stolen even though criminal charges are not pursued. Because of the appellant’s lack of formal education I find that the appellant believed she had reported the vehicle stolen and that her nephew would be charged even though she had not received any paperwork.

15The weight of the evidence indicates that her nephew drove the vehicle without the appellant’s knowledge or consent, express or implied. Based on the evidence presented at the hearing, I find that the nephew took the appellant’s vehicle without her knowledge or consent and therefore, in the particular circumstances of this case, the appellant’s vehicle was stolen within the meaning of the HTA.

Will the impoundment result in exceptional hardship?

16I 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.

ORDER:

Pursuant to subsection 50.2(5) of the HTA, I order the Registrar to release the motor vehicle.