Nazeela Sereshk v. Registrar of Motor Vehicles, 2019 CanLII 110102

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

Date: 2019-11-05

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:

Nazeela Sereshk

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Patricia McQuaid, Vice-Chair

Appearances:

For the Appellant: Self-represented

For the Respondent: Nora Challis, Agent

Heard by teleconference: October 29, 2019

REASONS FOR DECISION AND ORDER

Overview

1The appellant, Nazeela Sereshk, appeals the impoundment of her 2012 BMW BX3, (the “vehicle”). On September 22, 2019, OSJ, who is a suspended driver, was driving the vehicle when he was stopped by police. The vehicle subsequently was impounded for 45 days, to November 6, 2019.

2A case conference took place on October 21, 2019. Two issues were identified by the presiding member in the case conference Order: that the driver’s licence was not suspended at the time of the impoundment and that the appellant will suffer exceptional hardship from the impoundment.

3At the hearing, and upon review of the appellant’s notice of appeal, it became clear that the appellant was not asserting that the driver at the time of the impoundment was not suspended, but rather, that the driver was driving the vehicle without her consent. This evidence suggested the possible ground of appeal as set out in s. 50.2(3)(a) of the Highway Traffic Act (the “HTA”): that the motor vehicle was stolen at the time it was detained in order to be impounded.

4Ms. Challis objected to the Tribunal considering this as a ground of appeal as it had not been identified at the case conference. However, as there was evidence before me relating to ’stolen’ as a possible ground of appeal, it was incumbent upon me to weigh the evidence on that ground. I granted an adjournment to allow the Registrar to call evidence on the issue or alternatively, to provide written submissions on the issue. Ms. Challis elected to do the latter and the submissions were received on November 1, 2019. The appellant was given the opportunity to make reply submissions, by noon on November 4th. She did not make any further submissions.

5The Registrar argues that the appellant’s evidence does not support a finding that the vehicle was ‘stolen’ and has not made out her onus to show that there is exceptional hardship and therefore the impoundment should be confirmed.

6After considering all of the evidence and submissions provided, the Tribunal finds that the appellant has not established, on a balance of probabilities, that the vehicle was stolen at the time it was detained for impoundment nor that she has experienced exceptional hardship as a result of the impoundment. The Tribunal confirms the impoundment.

EVIDENCE AND ANALYSIS

Was the vehicle stolen at the time it was detained in order to be impounded?

7The appellant testified that on September 22nd, she lent her vehicle to her brother to drive to a family funeral in Toronto. This was the first time that she had allowed her brother to borrow her vehicle. She drove with her husband to the funeral in his vehicle. The appellant lives with her husband, children and father in Cambridge. Her brother lives in Hamilton. He does have a valid driver’s licence. The appellant and her husband returned home at approximately 5 p.m. Her brother had not yet returned with her vehicle. At approximately 7:30 p.m. she saw several police cars in her driveway. She went outside and spoke to a police officer. Her brother and uncle were standing in the driveway by her vehicle.

8The officer explained that there had been a minor accident on the highway involving her vehicle. The driver of her vehicle left the scene. Police then followed the vehicle to her house. When she questioned who was driving her vehicle, the officer confirmed that it was not her brother, but the individual who at that point was sitting in the back of the police cruiser, her cousin OSJ. The officer told her that OSJ is a suspended driver and was, as a result of the incident facing several charges and an administrative driver’s licence suspension as he was driving while impaired.

9The appellant was adamant both on her appeal documents and in her testimony that she did not give OSJ permission to drive her vehicle. Indeed, she had not had any contact with him for years. She stated that she did not give her brother permission to “lend out her vehicle”.

10The evidence is that the appellant allowed her brother, who does have a valid licence to drive her vehicle. However, there is no clear evidence of the circumstances that lead to her cousin driving the vehicle. I accept that the appellant is unlikely to have knowingly permitted her cousin, who she had not seen in years, to drive her vehicle, but there is also no evidence before me that she clearly articulated any restriction on the use of the vehicle when she gave the keys to her brother.

11The Registrar provided lengthy submissions on whether the vehicle was “stolen” as per s. 50.2(3)(A) of the HTA, citing extensive case law, much of which was not particularly relevant to this context. “Stolen” is not defined in the HTA; however, the case of Marshall v. Ontario (Registrar of Motor Vehicles) [2002] O.J. No.745, which was cited by the Registrar, has provided the Tribunal with guidance in similar cases. The Divisional Court stated that a vehicle is ‘stolen’ in this context when it is taken without the owner’s consent and when the person intends to deprive the owner of it, whether permanently or temporarily.

12The Tribunal’s jurisprudence has considered whether taking the vehicle without the owner’s express or implied consent means the vehicle was stolen. Much depends on the particular facts before the Tribunal and matters are further complicated when an owner gives the car to one person who in turn allows another to drive it, a turn of events not contemplated by the owner.

13Based on the information provided in the notice of appeal, it appears that OSJ got into the driver’s seat after the accident on the highway. On the facts before me, while OSJ may well have been driving the vehicle at the time it was detained without the appellant’s permission and knowledge, I cannot conclude that, as stated in Marshall, that he intended to deprive the appellant of her vehicle, even temporarily. Indeed, he drove the vehicle to her home, with police apparently following close behind.

14Therefore, on these facts, I find that the vehicle was not stolen in accordance with s. 50.2(3)(a) of the HTA.

Has the impoundment caused exceptional hardship?

15Under s. 50.2(3)(d) of the Highway Traffic Act (the “Act”), the appellant may appeal the impoundment of her vehicle on the basis that the impoundment will result in exceptional hardship. The onus is on the appellant to prove exceptional hardship.

16Section 10 of O. Reg. 631/98 (the Regulation) provides specific criteria that must be considered when determining the outcome of an appeal under this section.

17Under that Regulation, I must first consider whether there are reasonable alternatives available for the impounded vehicle.

18If there is no reasonable alternative to the impounded vehicle, then I may consider a threat to health or safety to a person as well as the following factors:

• financial or economic loss,

• loss of employment or employment opportunity, or

• loss of education or training.

19In order to meet the test of exceptional hardship, the above losses must:

• be immediate, significant and lasting,

• impact on a person ordinarily transported by the vehicle, and

• impact someone other than the suspended driver.

20The appellant testified that she just recently started her own business- opening a spa in Cambridge the first of October. The loss of the vehicle has meant that she has had to take taxis to get to the spa, after she drops her children at school. This is both inconvenient and an additional expense at a time when finances are stretched with the start of a new business. There is a bus service available in Cambridge, but it would involve taking several buses to get to her spa after dropping off her children. The children have not missed any school nor has she missed work, though she has been late on occasion which resulted in cancelled appointments.

21Her husband tries to help with transportation, but he too has his own business and is on call 24/7 as a tow truck driver, so his ability to help is limited. Her father lives with them, and has a vehicle, but works as an Uber driver from 4 a.m. to 8 p.m. daily so is not able to help her. A cousin has helped on occasion, particularly on weekends, to allow the appellant to get to the grocery store. There is no evidence of a threat to the health and safety of any person ordinarily transported by the vehicle and there is 911 service available in the community.

22Though inconvenient, the appellant has access to reasonable alternatives to the impounded vehicle. Only if there is no reasonable alternative can I consider factors such as financial or economic loss or loss of an employment opportunity. I appreciate that a significant concern for the appellant is the cost to get the vehicle out of the impoundment and she may need to turn to others for help, whether by way of a bank loan, pursuing money from OSJ or other family members such as her brother. There is no question that the loss of the vehicle for 45 days has had an impact on the appellant. However, the legislation is very prescriptive and the grounds on which the Tribunal can order the release of the vehicle are limited, which can, in some situations, result in harsh consequences for an appellant.

23I am sympathetic to the situation in which the appellant finds herself, but find that she has not satisfied the onus to establish, on a balance of probabilities, that the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the Act. Therefore, her appeal on this ground fails.

ORDER:

24After considering the evidence provided, pursuant to the Tribunal’s authority under s. 50.2(5) of the HTA, the Tribunal denies the appeal and confirms the impoundment.