P.L. v. Registrar of Motor Vehicles, 2019 CanLII 130356

RECONSIDERATION DECISION

Before: Jennifer Friedland, Member

Date: December 24, 2019

File: 11960 MVIA

Case Name: P.L. v. Registrar of Motor Vehicles, 2019 ONLAT HTA 11960 MVIA

Written Submissions by:

For the Appellant: Self-Represented, no written submissions provided

For the Respondent: Sanjay Kapur, agent

Overview

1The respondent, the Registrar of Motor Vehicles (the "registrar"), seeks a reconsideration of a decision made by the Tribunal in 11960 v. Registrar of Motor Vehicles dated April 26, 2019¹ in which the registrar was ordered to release an impounded vehicle on the basis that it was stolen at the time it was detained in order to be impounded.

2The registrar's request is brought under Rule 18.2 (b) of the Tribunal's Rules². The registrar submits that the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made. The registrar's submissions focus on the meaning of stolen under the criminal code and within the meaning of the Highway Traffic Act (the "HTA").³ It is the registrar's position that the Tribunal failed to properly interpret the meaning of "stolen" as used in section 50.2(3)(a) of the HTA.

3The remedy requested on this reconsideration is for the decision to be varied to find that the vehicle was not stolen and that the appeal be stayed for mootness.

4Written submissions were received from the registrar in support of its request for reconsideration. The appellant did not provide any submissions on the substantive issues raised by the registrar.

5I am the member who heard the appeal and wrote the decision that is now under consideration.

Issue

6The issue to be decided on this reconsideration is whether the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.

Result

7For the reasons that follow, the registrar's request for reconsideration is denied. I do not find that the decision contains an error of fact or law such that the Tribunal likely would have reached a different result had the error not been made.

Background

8The appellant's vehicle had been impounded pursuant to s. 55.1 of the HTA. Among other things, this section allows the police to detain and impound a vehicle if it is being driven by a person whose licence has been suspended for certain reasons.

9The grounds to appeal such an impoundment are limited. The appellant in this case appealed under s. 50.2(3)(a) of the HTA on the ground that the vehicle was stolen at the time it was detained in order to be impounded. He also appealed on s. 50.2(3)(d) on the ground that the impoundment would cause exceptional hardship. However, that latter ground was not considered in the impugned decision as the appellant was successful on the first ground.

10The facts found at the hearing are set out in the initial decision and can be summarized as follows: The appellant runs an insurance clean up company. He owns a fleet of vans. One of his vans was detained and then impounded after being driven by an employee of the appellant ("GS"), whose licence had been suspended for many years. The appellant testified that he conducted a licence check on each of his employees before hiring them as drivers. Because GS's licence was suspended he was not hired as a driver. Rather, he was a crew member who was only scheduled with licenced drivers. The appellant described GS as a "great" worker who had been with him for over a year. On the night in question, a Friday, GS stayed behind at the office after other employees had gone home and then he left with one of the appellant's vans. The keys to all of the appellant's vans hung on a wall. GS was pulled over at a gas station near the appellant's yard. He had the keys to the van on his key ring and told the officer that he was just getting gas for a job in the morning. The appellant fired GS for his actions. He did not seek to press charges. He testified that he understood that decision to be up to the police.

11At the hearing, the registrar asked me to find that the driver had "tacit consent" to drive the vehicle, based on the availability of the keys, the keys being on the driver's key ring, the hearsay statement of the driver as reported by the officer that he was just getting gas for a job in the morning and the fact that the appellant did not press charges.

12As set out in the impugned decision, I rejected the registrar's submissions and found that the van had been stolen, on a balance of probabilities, within the meaning of the HTA. I gave little weight to the hearsay statement of GS, who claimed to just be filling up for a job. I found the statement to be unreliable given that it was made by a man who had just been pulled over for driving without a licence in a van that he had no permission to be in. I also did not find the other aspects of the registrar's submissions persuasive. I distinguished the case before me from those where family members had access to keys and were found not to have stolen a vehicle; and I relied instead on the fact that this was an item taken from the workplace without permission. I found that it was immaterial that the driver knew where the keys were in this case, reasoning that in a workplace environment any number of items are available for the taking to employees who wish to act nefariously. With respect to the fact that charges were not laid, I was not persuaded that this meant the vehicle was not stolen. I referred to other cases before the Tribunal in which, in the context of a vehicle taken from the workplace, firing the employee, as this appellant did, was sufficient to convey the wrongfulness of the act.

The Registrar's Basis for Requesting Reconsideration

13The registrar submits that I erred in failing to properly interpret the meaning of "stolen" under s. 50.2(3)(a) of the HTA by allowing it too broad a definition. The registrar's main arguments can be summarized as follows:

14First, the registrar refers to the criminal law requirement of having to prove animus furandi – or an intent to steal. – for the vehicle to be considered stolen. The registrar provided a number of cases which spoke to this principle, including a 1916 civil case called Hirshman v. Beal⁴ in which a mechanic, authorized to take an owner's car for a test drive, also took it home for lunch and struck a child on the way back to work. The court found that although he had driven further than he had permission to drive, he lacked the intent to steal the car. The registrar submits that the impugned decision is very similar to Hirshman and submits that that in this case, too, the intent to steal was not proven.

15The registrar also compares the offence of theft to the "joyriding" provisions of the Criminal Code, which defines a separate offence in relation to the taking of automobiles. The registrar submits that the existence of a joyriding provision makes clear that not all situations in which a vehicle is driven without the owner's consent constitutes theft.

16The registrar also refers me to the various provisions under the HTA that reference an owner's liability for actions of a driver unless the owner can show the vehicle was "taken without consent." The registrar submits that had the legislature wanted to provide for an appeal of an impoundment on the grounds that an impounded vehicle had been "taken without consent" then it could have used that language. Instead, the grounds on which an impoundment can be appealed relate to the vehicle being "stolen". The registrar submits that this means that "stolen" must have a meaning that is narrower than "taking without consent".

17The registrar also notes how it can even be difficult to prove "take without consent." For example, in civil liability cases, when considering whether a vehicle was taken without consent so as to vitiate an owner's liability, the court will consider both explicit and implied consent. The registrar then points to cases where, for example, an owner's unexplained failure to report a vehicle as stolen in a timely fashion has been relevant to implied consent. The registrar also points to cases where the availability of car keys was found to imply consent. Since in the case under reconsideration, the owner did not press charges, and the driver knew where the keys were, the registrar contends that these factors undermine the finding of stolen.

18Among other cases, the registrar also refers me to Auto Zone & Rentals Inc. v. Registrar of Motor Vehicles.⁵ This was a reconsideration of an impoundment decision written by the Tribunal's Executive Chair, who found that it was an error in law to find that a vehicle driven contrary to a person's instructions amounted to being stolen within the meaning of the HTA. The registrar submits that I similarly erred by confusing taking the van against the owner's instructions with "stolen."

Law & Analysis

19A request for reconsideration will not be granted unless one or more of the criteria set out in Rule 18.2 are met. In this case, the ground relied on by the registrar is Rule 18.2 (b) that:

The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.

20At the outset of this analysis, it is worth noting that the purpose of a reconsideration is not to give an unsuccessful party a second opportunity to argue its case.

21Here, the registrar's submissions could easily have been raised at the hearing. The registrar is a sophisticated party that participates in multiple impoundment appeals before this Tribunal. It was well aware that one of the grounds of appeal was whether the vehicle was stolen at the time it was detained in order to be impounded. Yet rather than advancing the arguments it now makes at the hearing, it chose to advance the argument that the driver had "tacit consent" to drive the appellant's van. That argument was rejected for the reasons set out in the impugned decision.

22Now on this reconsideration, the registrar makes a series of arguments pertaining to the interpretation of the word "stolen."

23While the Tribunal does not condone raising new legal submissions on a reconsideration that could and should have been raised at the original hearing, I will nonetheless consider these submissions in relation to the facts of this case, and I note the following:

24First, this is not a criminal case where intent must be proven beyond a reasonable doubt. Rather, the appellant has only a civil burden to surmount. It is up to the appellant to prove on a balance of probabilities that the vehicle was stolen. I was satisfied on the basis of the evidence before me that he had done so in this case.

25I do acknowledge that there is a gap in my previous analysis between rejecting the registrar's submission that there was "tacit consent" and the conclusion that the vehicle was therefore stolen. I note however, that the definition of stolen was set out at the start of the analysis at paragraph 17 as found by the Divisional Court in Marshall v. Ontario (Registrar of Motor Vehicles)⁶. In that case, the Court stated that a vehicle is "stolen" within the meaning of the Act:

[W]hen it is taken without the owner's consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.

26While the analysis that followed might have been more explicit, I find that the original analysis does not disclose an error of fact or law, let alone one that would likely have led the Tribunal to reach a different result. The decision supports the finding that the vehicle was taken with the intent to deprive the owner of it, even if only temporarily as found in Marshall.

27To reiterate the essence of my findings in the original decision: the driver took a van from the workplace. He did not have permission to do so. And there was no evidence that he had done so in the past. He drove away in it and was fired because of it. This case is not like the 1916 case now relied on by the registrar. In Hirshman the driver had consent to drive the vehicle in the course of his work, as a mechanic tasked with taking the car for a test drive. He then drove it somewhat further than was necessary, taking it home for lunch and giving his family a ride on the way back to the garage. He hit a child on the return ride. The Court could not conclude that the driver had the intent to steal the vehicle in that context. The facts in this case are distinguishable.

28This case is also different than another case over which I presided, J.B. v. Registrar of Motor Vehicles,⁷ also now relied on by the registrar, in which I dismissed an appeal that was brought on the basis that the vehicle was stolen. In that case, the appellant's father had a suspended licence, but had been borrowing the appellant's truck to deliver wood. The appellant testified that her father did not have permission to drive her truck because of his suspended licence and that it was ostensibly usually driven by a person who was not available on the day in question. The owner surmised that her father must have found some other lift to the yard that day, taken the keys from her office drawer, and delivered the load of wood himself. She further testified that her father would likely have been on his way home with the truck given where he was pulled over, admitting that had he made it home, she would have seen the truck in their front yard. That point alone supported a finding that the appellant in J.B. knew her father might be driving the truck and belied any argument that the truck was stolen. Ultimately, I found that, as in Auto Zone, acting contrary to his daughter's instructions was not a sufficient basis to find that the vehicle was stolen in the circumstances of that case.

29In the impugned decision, however, there were other factors considered beyond the fact that the van was taken without permission or contrary to the owner's instructions, that led to the finding on a balance of probabilities that the vehicle was stolen. Topmost among those factors was that the vehicle was taken from the workplace after everyone else had left.

Conclusion

30Even applying the registrar's more fulsome legal submissions received on this reconsideration, I see no basis to set aside the original decision. Based on the vehicle having been taken from the workplace, late on a Friday after everyone had left, when the evidence was that he did not have permission to drive it, had not previously driven it, and was fired after taking it in that fashion, I remain satisfied that the vehicle was stolen within the meaning of the HTA. I am therefore not persuaded that the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made.

31Therefore, for the reasons noted above, the request for reconsideration is dismissed.

LICENCE APPEAL TRIBUNAL

_______________________

Jennifer Friedland, Member

Footnotes

1. 12019 CanLII 37552 (ON LAT)
2. 2The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure (October 2, 2017; amended February 7, 2019)
3. 3R.S.O. 1990, c. H. 8 (the "HTA")
4. 4[1916] O.J. No. 8 (SC-AD) ("Hirshman")
5. 52016 CanLII 88933 ("Auto Zone")
6. 6[2002] O.J. No. 745 (Div. Ct.) ("Marshall")
7. 7Indexed as 11918 v. Registrar of Motor Vehicles, 2019 CanLII 37538 (ON LAT) ("J.B.")