C.P. v. Registrar of Motor Vehicles, 2019 CanLII 29117

Court File and Parties

Date: 2019-02-15

File Number: 11813/MVIA

Appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to Section 55.1 of the Act

Between:

C.P. Appellant

and

Registrar of Motor Vehicles Respondent

Amended Decision and Order

Panel: Harriet Lewis, Member

Appearances:

For the Appellant: C.P., Appellant For the Respondent: Stella Velocci, Agent

HEARD by Teleconference on: January 31, 2019

Reasons for Decision and Order

Overview

1A teleconference hearing was held on January 31, 2019 to consider the appellant’s appeal of the 45 day impoundment of her 2016 Subaru Legacy. The vehicle, which is registered in Alberta, was impounded on January 3, 2019 and is eligible to be returned to the appellant on February 17, 2019, upon payment of the towing and impoundment charges.

Issues

2The issues to be determined are whether the vehicle had been stolen at the time of impoundment and whether the impoundment has resulted in exceptional hardship to the appellant.

Conclusion

3On the evidence before me at the hearing, I find that the vehicle was not stolen and that the impoundment has not resulted in exceptional hardship as defined in section 50.2(3)(d) of the Highway Traffic Act, R.S.O. c. H.8 1990, (“Act”).

Evidence

4At the time of the impoundment, the appellant, C.P. was returning with her partner D.C. to their home town in Ontario after a year-long stay in Calgary, Alberta.

5En route, C.P. and D.C. stopped at the northern Ontario home of a friend M.B. While staying there, D.C. took the keys for the vehicle from C.P.’s purse without her knowledge or permission and drove the vehicle on an errand for one of the friends with whom they were staying. D.C. was stopped for speeding and because his Ontario driver’s licence was suspended, the vehicle was impounded.

Law and Analysis

Issue 1: Was the vehicle stolen?

6Under s.50.2(3)(b) of the HTA, an owner may appeal the impoundment of a vehicle on the basis that the vehicle was stolen at the time it was impounded. The standard of proof that applies to establishing theft under this section is a civil standard, not a criminal one. Therefore the test is whether on the balance of probabilities the vehicle was stolen In this case, I find that the appellant has not met that test.

7C.P. and her witnesses, D.C. and M.B., testified that D.C. took the keys from C.P’s purse without C.P.’s knowledge or permission while C.P. was ill and asleep. D.C. confirmed that he did so, knowing that C.P. would not have given him permission to drive the car. She did not hide her purse nor her keys from D.C., nor did she subsequently report to the police that the vehicle had been stolen. Importantly, in her testimony, C.P. volunteered that she considered D.C. to be a co-owner of the vehicle by reason of his having co-signed the loan for its purchase, notwithstanding that he was not shown as an owner on the vehicle registration.

8Given this evidence, I cannot find that D.C. has stolen the vehicle. Therefore this ground of appeal must fail.

Issue 2: Has the impoundment resulted in exceptional hardship?

9Section 10(1) of Ontario Regulation 631/9 (“the Regulation”) requires that in determining whether exceptional hardship will result from an impoundment under s. 55.1 of the Act, I must consider “whether no alternative to the impounded motor vehicle is available”. The burden of proving exceptional hardship rests on the appellant, and the test set out in s.10(4) is strict:

“in order to show that no alternative to the impounded motor vehicle is available under subsection (1)…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 impoundment period.”

10The appellant was forthcoming and understandably emotional about the difficult year which preceded her return Ontario. She spoke of her debt load, physical injury in a recent car accident, the depletion of her savings, and D.C.’s having quit his job prior to their leaving Alberta. She has been offered a job with a cleaning service where she had worked prior to moving to Alberta, but that job requires a vehicle, and she is afraid she will lose it before her vehicle is released.

11Since returning, she and D.C. have been staying with D.C.’s mother, paying a modest amount for room and board. While there is no car available in that household, there is public transit nearby and C.P. has been able to rely on friends to drive her places from time to time. While C.P. spoke of requiring psychological therapy as part of her recovery from her car accident, she has not yet made arrangements for the counselling, and has not missed any medical appointments.

12At the hearing C.P. testified that she could not afford cabs or vehicle rental but confirmed that she had not taken any steps to explore the cost or availability of a rental vehicle. She did not testify to any attempts to explore the availability or cost of alternatives such as taxi or ride share services. She has not met the very strict test set by 10(4) to show that every reasonable option has been considered and enquired into that could eliminate or mitigate loss during the impound period. I therefore am precluded by 10(3) from considering any possible loss of her employment opportunity with the cleaning agency that may ultimately occur.

13Given that some arrangements for alternate forms of transportation have been made for day to day activities, I do not find that the impoundment has caused exceptional hardship in this case.

Order

14Pursuant to subsection 50.2(5) of the HTA, I deny the appeal and confirm the impoundment order.