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:
N.L.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Patricia McQuaid, Vice-Chair
Appearances:
For the Appellant: Self-represented
For the Respondent: Stella Velocci, Agent
Heard by Teleconference: March 16, 2018
REASONS FOR DECISION AND ORDER
A. Overview
1A teleconference hearing was held on March 16, 2018 to consider the appellant’s appeal of the impoundment of her 2011 GMC TER (the “vehicle”) on February 5, 2018 for 45 days. The impoundment period ends on March 22, 2018.
2The appellant has appealed on the grounds that the vehicle was stolen at the time it was detained to be impounded and also that the impoundment will result in exceptional hardship to herself and her daughter. She requests that the vehicle be released.
B. ISSUES
3The issues to be determined are:
(a) Whether the Registrar should release the vehicle on the basis that the appellant’s vehicle was stolen at the time it was impounded?
(b) Whether the Registrar should release the vehicle on the basis that the impoundment will result in exceptional hardship?
C. CONCLUSION
4I find that the appellant’s evidence supports a finding that the vehicle was stolen at the time it was impounded. As a result, I do not need to consider the second ground of exceptional hardship.
D. LAW
5The intent of the legislation is to promote public safety by preventing unlicensed drivers from operating motor vehicles.
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 only on the grounds set out in s. 50.2(3) of the HTA. Here, the appellant relies on paragraph (a): that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded; and (d): that the impoundment will result in exceptional hardship. If I find that the either of the grounds of appeal have been satisfied, I may, pursuant to subsection 50.2(5) of the Act, order the Registrar to release the motor vehicle.
7The appellant must present evidence to prove her appeal on a balance of probabilities.
E. EVIDENCE and ANALYSIS
Stolen
8The meaning of “stolen” is not defined in the Act.
9A vehicle is stolen if it is taken without the owner’s consent. That consent may be express or implied.
10The 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. The Court reviewed the circumstances of that case and 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.
11The appellant’s evidence was credible and consistent.
12The appellant lives in Ottawa. She explained that she went to Toronto to visit with family and friends the first weekend of February. She asked her son, who does not live with her, to check on her apartment when she was away. He does have keys to her apartment. When she returned on February 5, 2018, she noticed that her car was not there. Her son told her that he had driven the vehicle and it had been impounded. He gave her the impound documents. The Notice of Impoundment shows that the vehicle was detained for impoundment at 1:35 a.m. on February 5, 2018.
13The appellant explained, with candour, her son’s situation. He is 29 years old. While he does not live with her, he uses her address as his mailing address, at her request, in the hope that she would therefore become aware of any problems he might be having. She described her son as struggling in life. He has, unfortunately, had issues with the law and spent several years in jail. When he was released from jail, he lived with her for a period of time, but because he could not abide by her rules he moved out.
14After speaking with her son, the appellant went to the police station to see how she could get her vehicle released. The first officer she spoke to told her that they could not release the vehicle and could not give her information about the incident because her son is an adult. However, she was eventually told that he had a conviction for impaired driving, and further that he was driving with a G1 licence. She stated that she was unaware of both facts.
15The Registrar’s documents, filed as exhibits at the hearing, show that the appellant’s son was convicted for impaired driving on August 25, 2017 and that his licence was suspended for one year. The driving record also confirms that he has a G1 licence.
16The appellant met with the police officer who impounded her vehicle to ask him how she could best deal with the situation. He told her that she should press charges against her son on the basis that he stole her vehicle.
17The appellant testified that though she did not give her son permission to drive her vehicle, nor did she have reason to believe that he would take her vehicle given that he had never done so before, she could not press charges against him. She stated that what her son did was clearly wrong, both on February 5 and on the occasion when he was drinking and driving, with charges which resulted in the conviction. But she did not believe, as a mother, that his arrest for stealing her vehicle would make him a better person. Her view is that “throwing him in jail, for stealing her car, which is what he did”, would solve nothing, but only make him an angrier person.
18In cross examination, the appellant did not deny that given that her son had keys to her apartment, he also had physical access to her car keys which she left in their usual spot, in plain sight. However, because he had never driven her car before, she had no reason to worry that he would take her car without her permission. If she had had any cause for alarm, she would have guarded the keys by taking them with her. This is not a fact situation where implied consent or acquiescence can be found. The evidence before me is that the appellant’s son had never driven her vehicle in the past or even requested to do so. It cannot be said that the appellant failed in her responsibility, under the Act, to ensure that an unlicensed driver does not drive her vehicle.
19I find, based on the evidence before me, and on a balance of probabilities, that the suspended driver took the vehicle without the appellant’s knowledge or consent and therefore, in the circumstances of this case, the vehicle was stolen within the meaning of section 50.2(3)(a) of the Act. Though the appellant’s evidence was that the police officer who impounded the vehicle suggested to her that she press charges against her son, there is no requirement that criminal charges must be pursued before a vehicle can be considered stolen.
ORDER:
20Pursuant to subsection 50.2(5) of the HTA, I find that the appellant’s vehicle was stolen and order the Registrar to release the motor vehicle.
LICENCE APPEAL TRIBUNAL
___________________________
Patricia McQuaid, Vice-Chair
Released: March 20, 2018