S.M. v. Registrar of Motor Vehicles, 2019 CanLII 29121

Date: 2019-02-11

File Number: 11761/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(3) of the Act

Between:

S.M.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Zahra Dhanani

Appearances:

For the Appellant: S.M., Self-Represented

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference on: January 2, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1A teleconference hearing was held on January 2, 2019 to consider the appellant’s appeal of the 45 day impoundment of a 2007 Chevrolet Cobalt (the “vehicle”). The vehicle was impounded on November 18, 2018 and was to be released to the appellant on January 2, 2019.

2The appellant sold the vehicle to D.R. on November 8, 2018. D.R. paid cash for the purchase of the vehicle. The appellant gave D.R. the ownership documents so she could transfer ownership, and also a receipt for the purchase price.

3Before taking the plates off of the car, D.R. asked the appellant if she could just take the car with the plates to go to the bank. She wanted to buy the appellant’s winter tires but she needed to get more money from the bank. The appellant agreed and let her take the car with his plates.

4D.R. never returned the plates to the appellant. The appellant called D.R. and her husband on several occasions and was told that they would return the plates. The plates were not returned.

5D.R. was stopped by the police on November 18, 2018. The vehicle was impounded because D.R.’s driver’s licence had been suspended since 2006 for criminal code convictions. The appellant’s plates were still on the vehicle and the vehicle was still registered to the appellant.

ISSUE

6The issues to be determined are:

a. Was the appellant the owner of the vehicle that was impounded?

b. If he is or is not the owner, does the Tribunal have jurisdiction to hear this appeal?

c. If the Tribunal does has jurisdiction to hear this appeal:

i. Was the vehicle stolen at the time it was impounded?

ii. Did the impoundment result in exceptional hardship to the appellant?

CONCLUSION

7I find that the appellant is the owner of the vehicle. As such the Tribunal has jurisdiction to hear this appeal. I find that the vehicle was not stolen at the time that it was impounded and that the appellant does not meet the test for exceptional hardship. Accordingly, the appeal is denied.

ANALYSIS

8Section 55.1 of the Highway Traffic Act (the “Act”) provides that a motor vehicle may be detained and impounded. Section 50.2 of the Act provides that the owner of a detained or impounded motor vehicle has a right of appeal to the Tribunal. Section 50.2(2) specifies that “the owner and the Registrar are the parties” to an appeal to the Tribunal.

9Section 50.2(11) defines “owner” as follows:

(11) In this section,

“owner” means each person whose name appears on the certificate of registration for the vehicle but in subsection (4) “owner” means the person whose name appears on the plate portion of a permit in cases where the certificate of registration consists of a vehicle portion and a plate portion and different persons are named on each portion.

10The Tribunal’s authority to release the vehicle is limited to four specific grounds set out in subsection 50.2(3):

(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may order the Registrar to release the motor vehicle are,

(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;

(b) that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension;

(c) that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension; or

(d) that the impoundment will result in exceptional hardship.

11The appellant in this case appealed on the grounds that the impoundment of his vehicle has caused him exceptional hardship and that the licence plates were stolen and therefore the car was stolen.

Ownership of the Car

12As stated in section 50.2 (11) of the Act, “owner” is defined by whose name appears on the certificate of registration.

13It is unfortunate in these circumstances but at the time the vehicle was impounded it was still legally registered to the appellant and his licence plates were on the vehicle.

14There is no doubt that the appellant had transferred all of his legal interest in the vehicle to the buyer. He had done almost everything required of him, including signing the “Application for Transfer” section of the certificate of ownership, and D.R. had paid the price asked.

15The Tribunal notes that the statutory scheme places the onus for registering a transfer on the purchaser.

16The Registrar takes the position that the appellant remains liable for the actions of the purchaser until the purchaser completes the transfer or the seller takes steps to notify the Registrar of the transfer.

17The title of the car was never transferred by D.R. and therefore the appellant is still currently the title owner.

18I find that the appellant is still the “owner” of the car according to the definition under the Act.

Jurisdiction

19Accordingly, based on the definition of “owner” under the Act and the fact that the appellant is still registered as the legal owner of the vehicle, I find that the Tribunal does have jurisdiction to make a finding on this appeal.

Was the Vehicle Stolen?

20The meaning of “stolen” is not defined in the Act. The Tribunal has held that a vehicle is stolen if it is taken without the owner’s consent. That consent may be express or implied. There is also no requirement that criminal charges must be pursued before a vehicle can be considered stolen. The Divisional Court held in Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745.

21D.R. paid the agreed upon price for the car. She did not steal it.

22When the appellant sold the vehicle to D.R. he did not check her driver’s licence before allowing her to drive the vehicle with his plates on them. I found the appellant to be a credible witness and I believe that he acted in good faith, he believed D.R. and trusted she would come back. After several weeks of the appellant trying to get his plates back from D.R., and after he received the call that the car had been impounded, he reported the plates stolen with the police.

23This however does not preclude the fact that he was still registered as the legal owner of the car and was still responsible to make sure anyone driving his car with the plates on them was legally eligible to drive the car.

24The appellant argues that because his licence plates were stolen the vehicle was stolen. I find no basis for this argument and the appellant has failed to provide any legal basis for this argument. As such, I find the vehicle was not stolen.

Exceptional Hardship

25Section 10 of O.Reg 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment.

26The first requirement set out in s. 10(1) of the Regulation is that there is no alternative to the impounded vehicle. If I find that there is an alternative to the impounded vehicle, then I need not consider any other requirements as the vehicle owner will not have established the first requirement to show exceptional hardship.

27Subsection 10(4) of the Regulation states that in order to show that there is no alternative to the impounded vehicle, the owner:

[M]ust 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.

28Pursuant to s. 10(2)(b) of the Regulation, the Tribunal shall not consider whether the impoundment will result in financial or economic loss to any person:

In determining whether exceptional hardship will result from an impoundment under section 55.1 of the Act, the Tribunal shall not, subject to subsection (3), consider whether the impoundment will result in,

(a) financial or economic loss to any person.

29The appellant was selling this car because his daughter no longer needed it and she asked him to sell it for her. This was not his method of transportation – he had his own vehicle for his transportation needs at the time of impoundment.

30I am sympathetic to the unfortunate situation the appellant is in, however, the appellant’s evidence does not support a finding of exceptional hardship as he had his own vehicle for transportation needs.

ORDER

31Pursuant to s. 50.2(5) of the HTA, I deny the appeal and confirm the impoundment order.