Licence Appeal Tribunal
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:
D.D. Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Adjudicator: Asad Ali Moten
Appearances: For the Appellant: Self-represented For the Respondent: Stella Velocci, Agent
Heard in person: April 17, 2018
REASONS FOR DECISION AND ORDER
A. Overview
1D.D. appeals the impoundment of her 2016 Dodge Caravan (the vehicle). She usually drives the vehicle to the GO station each day on her commute to work. On the day of the impoundment, March 14, 2018, she walked to work because she was in a fair amount of pain from a dental surgery and was taking painkillers. Her spouse, who has a suspended licence, found the keys and took the vehicle for a drive. He was stopped by police and the vehicle was impounded.
2The appeal is made on the basis that the impoundment has caused D.D. exceptional hardship. During the hearing, D.D. also gave evidence that she had taken some measures to prevent the vehicle from being driven by her spouse. Therefore, the Tribunal has also considered whether the vehicle was stolen.
3After considering all of the evidence provided, the Tribunal confirms the impoundment.
B. ISSUES
4The issues to be determined are:
(a) Was D.D.’s vehicle stolen at the time that it was driven by the suspended driver?
(b) Has the impoundment caused D.D. exceptional hardship?
C. LAW AND ANALYSIS
5The intent of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) is to promote public safety by preventing unlicensed drivers from operating motor vehicles. Pursuant to s.55.1 of 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. Appellants have the onus to establish that any of the grounds in s.50.2 have been met. In this instance, D.D. 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.
Was the vehicle stolen at the time it was detained in order to be impounded?
7The HTA does not define what “stolen” means. 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 test for whether a car is stolen is highly fact-specific. There is no requirement that the car be reported stolen, or even that the denial of permission be explicit, but these are among the factors that may support a conclusion that the vehicle was stolen. At the very least, the Tribunal must find that the appellant did not implicitly consent or reasonably expect to have the vehicle taken. In many contexts, including this one, the Tribunal may examine whether an appellant took reasonable steps to ensure that an unlicensed driver would not drive the vehicle.
9D.D. knew her spouse had a suspended licence. According to the Extended Driver Record, D.D.’s spouse’s licence was suspended as of January 1, 2016 because of an impaired driving offence. D.D. testified that since that offence her spouse has been unable to work. This has led to a rapid decline of his mental state. She further testified that this has led to irrational decision-making on his part, and that she has to anticipate all kinds of behaviour that may put him at risk.
10D.D. also knew that her spouse had violated his driving prohibition in the past. Her spouse’s vehicle had been impounded on at least one previous occasion between January 1, 2016 and this impoundment on March 14, 2018. In addition, his driving record indicates that he drove while suspended in January 2016 and March 2016, failed to complete the remedial program to get his licence back, and drove while disqualified (an offence under the Criminal Code, R.S.C., 1985, c. C-46) in January of 2017. D.D. testified that when his vehicle was previously impounded the vehicle did not belong to her so she had no say as to whether he could drive it or not, and she left it abandoned in the impound lot.
11Because the vehicle currently in question is in D.D.’s name, and is for her use, she has taken some steps to ensure it remains out of her spouse’s hands. She testified that she keeps the registration, insurance, and keys in three separate places. The registration and insurance are hidden inside books on D.D.’s bookshelf. D.D. testified that the keys are most commonly kept in her pillowcase.
12In the normal course, D.D. drives the vehicle to the GO station and parks it there for the whole day while she commutes and works in Toronto. As such, she usually has the keys with her. The day of the impoundment however was not in the normal course.
13On March 12, 2018, D.D. had a tooth surgically extracted. Documentary evidence supports this. She testified that she was in a significant amount of pain, and was taking fairly strong painkillers. She did not feel it was safe for her to drive to the GO station on the morning of March 14, 2018, so instead she walked.
14Later that morning her spouse obtained her car keys and took the vehicle for a drive. When he was stopped by police he was without registration or insurance. D.D. was contacted at work by her spouse who told her that the car had been impounded. When asked at the hearing how her spouse found the keys, D.D. testified that she never asked him, but she thinks he found them while making the bed.
15The Tribunal finds that there is not sufficient evidence to conclude that D.D. did not implicitly consent to her spouse taking the car on the morning of March 14, 2018. D.D. had long known about her spouse’s challenges with abiding by driving restrictions, and in fact acknowledged that at least one of his vehicles have been impounded in the past two years. This creates at least a reasonable expectation that D.D.’s spouse may at some point take her vehicle. In addition D.D. knew what the consequences would be if her spouse were to be caught behind the wheel again would be, namely, more impoundment and more costs.
16With that reasonable expectation, D.D. has the responsibility to take proportionate steps to prevent her spouse, an unlicensed driver, from accessing her vehicle and taking it out on the road. D.D. had taken some steps to prevent her spouse from accessing the insurance and ownership. However, she did not take a significant or proportionally cautious a step in securing her keys. D.D. testified that her spouse acts irrationally and that she has trouble controlling his behaviour. With that in mind, along with the knowledge that he has driven while disallowed and what happens when he gets caught, it is unreasonable in the Tribunal’s opinion to simply hide the keys in the bed. It is inexplicable why D.D. did not eliminate any chance he may find the keys by taking the keys with her to work.
17As such, the Tribunal finds that D.D.’s vehicle was not stolen, and that s.50.2(3) of the HTA is not satisfied.
Will the impoundment result in exceptional hardship?
18Section 10 of O. Reg. 631/98 (the Regulation) provides the criteria to be considered when determining whether impoundment will result in exceptional hardship. Under the Regulation, the Tribunal must consider whether there is a reasonable alternative mode of transportation available to the appellant. This includes using another vehicle, public transportation, or making arrangements to make do without a vehicle during the impound period.
19Section 10 of the Regulation also prescribes that only where there is no reasonable alternative can the Tribunal consider whether the impoundment will cause a health or safety concern, or financial or economic loss that is immediate, significant and lasting. Inconvenience to any person is not exceptional hardship.
20D.D. has, without question, experienced significant challenges over the past two years. Between her spouse’s decline, the difficulties of raising children, and incredible financial pressures, D.D. has been struggling to stay afloat. The impoundment of her vehicle has added to that difficulty.
21D.D. works five to six days a week, ten hours at a time, as a Registered Massage Therapist. It is physically demanding work, and she works much more than her colleagues because she has to make ends meet. She supports herself, her spouse, and her two children.
22Before the impoundment, D.D. would use the vehicle primarily to drop her son to school, get to the GO station in the morning, and run the errands of everyday life after work. She would also use the vehicle to drive her daughter to her part-time job, and everyone in the family to their appointments. In addition, D.D. had been in a car accident in January of 2018 for which she was still receiving physiotherapy.
23D.D. argues, essentially, that the impoundment of her vehicle was creating exceptional hardship because it was making an already difficult situation impossible.
24The Tribunal acknowledges D.D.’s challenges, but finds that the impoundment of the vehicle does not create exceptional hardship as contemplated by the statute. The Tribunal accepts that the impounded vehicle is her only feasible vehicle. She has another vehicle, registered in her name, available to her. However, D.D. testified that this other vehicle is not in working condition, and she bought it knowing as much, but intended to get it fixed when she had the money to do so.
25But, even if the Tribunal discounts the other vehicle, D.D. still has other means of getting to and from where she has to go. She testified that she walks to the GO station, or when running late, takes a taxi or Uber. Her children continue to get to school, and her daughter often uses Uber to get to her part-time job. When D.D. comes home from work, sometimes as late as 10:00 pm, she feels unsafe walking home so she may take the bus or a taxi. These are all reasonable alternative modes of transportation available to D.D. and her family. When D.D. has to go grocery shopping she will walk to the grocery store and sometimes use Uber to get home if the bags are too heavy.
26Further, there has been no impact on D.D. or her family’s health and safety as a result of the impoundment. There certainly has been added stress, but D.D. testified that no one in her family has missed a doctor’s appointment as a result of the impoundment. Her own physiotherapy continues, as the clinic she goes to is a short walk from her home, and she lives in a well-serviced area with 911 emergency responders available should the need arise.
27D.D. testified that because of the impoundment she has had to put off a second job she obtained, which involved traveling to people’s homes to provide massages. This, according to D.D. has resulted in economic loss because that is income she cannot earn. She stated that she has no other means to get to this second job, however the Board notes that Uber and taxi are readily available. The Tribunal does acknowledge that spending money on taxis, Ubers, and buses is at best inconvenient and at worst unsustainable, especially when D.D. is still making financing payments on her vehicle.
28D.D. argues that the most significant hardship she experiences is not while the impoundment is ongoing, but rather in the hundreds or thousands of dollars she would have to pay to have the vehicle released, which is money she does not have.
29These are very difficult circumstances. However, financial or economic loss only forms part of the Tribunal’s consideration where the Tribunal finds there is no reasonable alternative mode of transportation. In this case, the Tribunal finds that reasonable alternative transportation does exist, and therefore cannot consider D.D.’s financial difficulties as part of its analysis of exceptional hardship.
ORDER:
30After considering the evidence, the Tribunal confirms the impoundment of D.D.’s vehicle for 45 days.
LICENCE APPEAL TRIBUNAL
Asad Moten, Member
Released: April 27, 2018