Licence Appeal Tribunal
Safety, Licensing Appeals and Standards Tribunals Ontario
Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario
Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, (HTA) from an impoundment of a motor vehicle under section 55.1 of the HTA.
Between:
Patricia Seberras Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Adjudicator: Patricia Conway, Member
Appearances:
For the Appellant: Patricia Seberras. For the Respondent: Stella Velocci, agent
Place and date of hearing: Teleconference October 31, 2019
REASONS FOR DECISION AND ORDER:
Overview
1The appellant is the owner of a 2005 Ford pickup truck. The vehicle was impounded on September 27, 2019, following a stop by a police officer at which time Garrett Seberras, son of the appellant was driving. A check of his driver’s licence by the officer disclosed that his licence was suspended in 2018 for driving while having consumed alcohol that caused him to blow over 80 mg. The vehicle was impounded for 45 days under the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) s. 55.1(3).
2The appellant appealed the impoundment to this Tribunal pursuant to s.50.2 of the HTA on October 2, 2019 on two grounds:
a. that the impoundment of the vehicle will result in exceptional hardship;(s. 50.2(3)(d), HTA).
b. that the vehicle was stolen at the time it was detained in order to be impounded (s. 50.2(3)(a), HTA)
ISSUES
3The issues for determination on this appeal are whether the evidence supports these grounds of appeal. To determine these issues, the Tribunal must answer the following questions:
a. Will the impoundment of the vehicle for 45 days cause the appellant exceptional hardship?
b. Was the vehicle stolen at the time it was detained in order to be impounded?
RESULT
4For the reasons set out below, the Tribunal finds that the vehicle was stolen at the time it was impounded. The Tribunal therefore orders the Registrar to release the vehicle.
Evidence and Analysis
a. Will the impoundment of the vehicle for 45 days cause the appellant exceptional hardship?
5The appellant’s evidence is that she is a personal support worker employed by Shoppers Drug Mart Home Healthcare. She does home visits to patients using her employer’s homecare services within the Collingwood area. She needs a vehicle. She uses the impounded vehicle to travel to her patients’ homes. After the vehicle was impounded, she took 7 days off work, using up her annual allotment of 3 sick days, to file the appeal and determine what options she had. She then rented a vehicle and has been using it to drive as necessary for work and personal requirements. She estimates that she has lost $750 in income and has spent $1,200 so far on vehicle rental fees.
6Ontario Regulation 631/98 under the HTA sets out in s. 10 (1) what steps are to be taken in determining whether exceptional hardship results from the impoundment. A precondition to any consideration of financial loss or other harm is that no alternative to the impounded vehicle is available. In order to show that there is no alternative to the impounded vehicle, the owner “must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period. The appellant here was able to find an alternative vehicle, the rental car. The appellant testified that the cost of the rental vehicle is a hardship for her. However, she did not suggest that the hardship would be substantial and lasting to her financial circumstances. On the ground of exceptional hardship, the appeal must fail.
b. Was the vehicle stolen at the time it was detained in order to be impounded?
7The appellant stated that she was aware that her son’s licence was under suspension. When he was charged with the offence that led to the suspension of his licence, she told him never to drive her vehicle at any time because she needs it for her job. Her son, who is now 36, agreed that he would never drive her vehicle.
8The appellant stated that her son moved into her home about 5 months ago. She testified that she tried to ensure that her son did not know where her car keys are kept. She kept them either in her purse, or in her pocket. She keeps her purse with her at all times.
9She testified that on September 27, 2019, she drove home from her visits at midday because she had a 90 - minute break until her next appointment. She was tired and wanted to sleep. Her son was in his bedroom when she arrived home. She did not see him or speak with him. She put the car keys in her purse and took her purse into her bedroom and placed it beside her on the bed. She closed her bedroom door and went to sleep with the alarm set to wake her, because she is a heavy sleeper. When the alarm woke her, she went into the kitchen to have some tea before heading back to work. At this point, the police appeared at her door and informed her that her vehicle had been impounded. She looked in her purse and discovered that her keys and her credit card were gone.
10She testified that her son must have come into her room while she was sleeping and taken her purse from beside her on the bed and rummaged through it to find the keys and her credit card. She testified that since this incident she has forbidden her son to come to her house. She does not know where he is or whether he is working. She stated that she did not think that he would steal from her.
11She was asked by the Registrar’s representative whether she had laid a charge against him. She said she has not, because she felt that he was in enough trouble already. But she feels like charging him for what he has done.
12On behalf of the Registrar, it was argued that the appellant, knowing that her son’s driver’s licence was under suspension, had a responsibility to ensure that he did not have access to the vehicle. I agree. But I do not agree that she was not careful enough. She testified that although she could not state absolutely that her son did not ever see her put her keys in her pocket or in her purse, she took care that he did not see where she put them. She testified that she did not always put them in the same place, but that she always had them with her. The keys were never left in plain sight. When her son took the keys, they were in her purse, which was right beside her, and she had closed her bedroom door. Her son’s actions in coming into her bedroom while she slept, going through her purse and taking her keys and credit card are the actions of a thief. The appellant’s son clearly meant to take these items without her consent and to deprive her of the use of the vehicle. The appellant had no idea where he had gone, for how long he had gone, nor whether he intended to come back. She needed the vehicle immediately to return to work, and he deprived her of its use, without her knowledge or consent.
13As I have touched on earlier, the Registrar’s position is that since the appellant did not lay a charge against her son, I should not find that the vehicle was stolen. I disagree. There is no requirement under the HTA that charges must be laid against the driver of the vehicle before a finding that the vehicle was stolen can be made. In my view the appellant’s decision not to get her son into more trouble is understandable.
Decision and Order.
14For these reasons, I find that the appellant has satisfied the onus upon her to establish on the balance of probabilities that the vehicle was stolen at the time it was impounded. I order the Registrar to release the vehicle to the appellant.
LICENCE APPEAL TRIBUNAL
____________________________
Patricia Conway, Member.
Released: November 14, 2019