Date: 2018-04-11

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

Between:

S.G. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Marisa Victor Asad Moten

Appearances:

For the Appellant: Self-represented For the Respondent: Stella Velocci, Agent

Heard by Teleconference: March 21, 2018

REASONS FOR DECISION AND ORDER

A. Overview

1S.G. appeals the impoundment of her 2004 FORD F150 (the vehicle). She had recently given birth and was hoping to use the vehicle for transporting her sick child to various medical appointments. However, at the time of the impoundment, the vehicle was in the care of S.G.’s boyfriend and daughter. Furthermore, the vehicle’s registration had expired and could not be renewed until significant unpaid highway toll fines had been paid. Her vehicle was impounded after being driven by her then boyfriend, who had a suspended licence.

2The appeal is made on the basis that the impoundment has caused S.G. exceptional hardship. However, during the hearing, S.G. also gave evidence that the vehicle was taken without her consent, and 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 S.G.’s vehicle stolen at the time that it was driven by the suspended driver?

(b) Has the impoundment caused S.G. exceptional hardship?

C. LAW AND ANALYSIS

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. In this instance, S.G. 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?

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.

8In this instance, S.G. was not in physical possession of the vehicle at the time of the impoundment. According to her testimony it had been driven up to Orillia in October of 2017 by her daughter, who was accompanied by S.G.’s boyfriend, for servicing and repairs. There it had remained in possession of S.G.’s daughter who lives in Orillia with S.G.’s boyfriend.

9S.G. had entrusted her daughter to not allow S.G.’s boyfriend to drive the vehicle, as S.G. knew that he did not have a valid driver’s licence. Further, the vehicle’s registration lapsed in early January 2018, and had not been renewed due to outstanding Highway 407 toll charges.

10Early in the morning on February 3, 2018, S.G.’s then boyfriend was stopped by police. Once the officer realized that S.G.’s boyfriend had a suspended licence, the vehicle was impounded. S.G.’s boyfriend called S.G. to tell her about the impoundment, and she queried why he would risk driving in Orillia, a place with a high police presence.

11S.G. testified that her boyfriend had taken the vehicle despite S.G.’s instructions to her daughter, and drove without S.G.’s consent. Although she did not argue that the vehicle was stolen, the Tribunal considered whether the vehicle was in fact stolen based on the testimony of the appellant, which indicated that the vehicle was taken without consent.

12The 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 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 took reasonable steps to ensure that this would not happen.

13The Tribunal finds that S.G. could have reasonably expected that her boyfriend would drive the vehicle for several reasons. While S.G. did give instructions to her daughter, there is no evidence that she instructed her daughter to hide the keys or ensure they were secure, despite her boyfriend residing in the same apartment. Indeed, it appears the boyfriend specifically had access to the keys so that he could load a trailer that attaches to the vehicle with work materials. It is foreseeable that he may move the vehicle in order to attach or detach the trailer. This enabled his access to the vehicle.

14Further, S.G. stated during the hearing that she would be seeking reimbursement from her boyfriend for the accumulated 407 charges. This implies that her boyfriend was responsible for incurring the charges. These 407 charges would have come to S.G.’s attention at the very latest when she attempted to renew the plate sticker which expired on December 31, 2017, yet there is no evidence that upon this discovery she took any further steps to ensure that her boyfriend did not have access to the vehicle prior to its impoundment. In addition, while she testified that she never saw him drive either of her vehicles, S.G. did testify that she saw her boyfriend moving cars in and out of the driveway, despite not having a valid licence. These examples imply prior knowledge of his behaviour.

15Lastly, S.G. also stated that because the vehicle did not have a valid sticker, she had a reasonable expectation that it would not be driven. However, she testified that she had granted permission for her daughter and S.G.’s boyfriend’s coworkers to drive the vehicle, suggesting that she could reasonably expect it would be driven, and had little control over whether it was driven or not and by whom.

16S.G. testified that she was not aware of the fact her boyfriend’s licence had been suspended due to Criminal Code convictions, and believed that he just did not have a licence. In the Tribunal’s opinion, this distinction has little bearing on how diligent an owner should be in ensuring only licenced drivers get behind the wheel.

17Therefore, it may be that S.G. did not explicitly consent to her boyfriend driving the vehicle. However, her actions speak to an implied consent or at the very least, a reasonable expectation that he might drive the vehicle. She knew he had done so with other vehicles, suspected he had done so with this vehicle, and took no real measures to safeguard against the possibility. As such, the appeal cannot succeed on this ground.

Will the impoundment result in exceptional hardship?

18Section 10 of O. Reg 631/98 (the Regulation) provides the criteria to be considered when determining the outcome of an appeal under this ground for appeal. 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.

20S.G. has had a challenging several months, and the impoundment of the vehicle has not helped ease her burdens. Her infant son has been unwell and has been hospitalized on three occasions since the impoundment. The impoundment effectively ended her relationship with her then boyfriend. She is also currently on maternity leave, working through her own post-partum medical concerns.

21Despite all these factors, the Tribunal finds there was not exceptional hardship in this instance. The vehicle’s impoundment could not have created an exceptional hardship because S.G. had not been using the vehicle for months prior to the impoundment anyway. The vehicle was a significant distance away, was in disrepair for a period of time, and even once repaired, did not have a valid sticker. As such it could not legally be driven as of January 1, 2018. There was no material difference in S.G.’s day to day life as a result of the impoundment. Even if this Tribunal were to order the release of the vehicle, it still would not change her circumstances because the vehicle remains without a valid plate sticker and S.G. has no concrete plans to pay the outstanding charges to enable her to renew the registration.

22In addition, there are several reasonable alternative modes of transportation available to S.G. She has another vehicle. She testified that it is not reliable and she does not feel safe driving it, though it is technically driveable. This may be the case, but the option remains open to her to use the vehicle where circumstances call for it. She has also variously used her daughter’s vehicle, walked to her or her infant’s doctors’ appointments, or taken taxis. The Tribunal accepts that although she lives in a suburban area reasonably well-served by public transit, buses are not a reasonable option for S.G. because they cause her anxiety.

23S.G. was required to prove that no reasonable alternative to the impounded vehicle existed. The Tribunal finds that she has been unable to meet that burden of proof. As such, the Tribunal need not consider whether the lack of a vehicle caused S.G. any health or safety concerns or financial or economic losses. The impoundment of the vehicle did not and will not cause exceptional hardship.

ORDER:

24After considering the evidence, the Tribunal confirms the impoundment of S.G.’s vehicle for 45 days.