B.M. v. Registrar of Motor Vehicles, 2019 CanLII 32269

Licence Appeal Tribunal

Date: 2019-03-05 File Number: 11865/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:

B.M. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Harriet Lewis, Member

Appearances: For the Appellant: B.M., Self-represented For the Respondent: Stephen Grootenboer

Heard by teleconference on: February 21, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1A teleconference hearing was held on February 21, 2019 to consider the appellant’s appeal of the 45 day impoundment of her 2005 Mazda Tribute. The vehicle was impounded on January 8, 2019 and was eligible to be returned to the appellant on February 22, 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

4B.M. and her husband are both retired and living on their pensions with little savings. Her claim with respect to exceptional hardship arises because of the cost she expects to incur to retrieve her impounded vehicle.

5At the time of the impoundment, the appellant, B.M. was on vacation and away from her home town. Her Mazda was parked in the driveway of her home, the keys stored in a key box near an unlocked door of her home.

6B.M.’s son J.K. lives in the same community. On January 8, 2019 J.K. entered B.M.’s home and without her knowledge or consent, took the keys and drove the Mazda, notwithstanding that his drivers licence is suspended. He was stopped by police and the vehicle was impounded.

7The Registrar provided evidence in the form of Notices of Impoundment and Release from 2012, 2014 and 2015, all pertaining to vehicles owned by B.M. and impounded because they were being driven by J.K. while his licence was suspended.

8B.M. explained that J.K. has Post Traumatic Stress Disorder (“PTSD”), having served two tours of duty in Afghanistan. He has recently been undergoing counselling and appeared to be improving, although his behaviour has led to his taking her car in the past without her permission. In her small community, doors to homes are not locked. Her home is left open and friends and relatives are permitted to enter at will. Although she has from time to time moved her vehicle keys to other locations to keep them away from J.K., on this occasion they were left in the box by the door. She did not think that J.K. was likely to take the vehicle, as he knew or should have known that he did not have her permission to do so or a valid drivers licence. She believed that his counselling and other treatment had made it unlikely his earlier behavior would be repeated.

9J.K. gave evidence on behalf of his mother. He expressed regret for putting B.M. in the position of having her vehicles repeatedly impounded due to his behaviour. He explained that because he suffers from PTSD, at certain times is unable to control his impulses which have lead him to repeatedly take his mother’s cars without her consent.

10B.M. is also the registered owner of a Ford pickup truck. She and her husband have had use of that vehicle throughout the impound period to carry on their daily activities.

LAW AND ANALYSIS

Issue 1: Was the vehicle stolen at the time it was impounded?

11Under s.50.2(3)(b) of the Act, an owner may appeal the impoundment of a vehicle on the basis that the vehicle was stolen at the time it was impounded. The Act does not define “stolen” and therefore I must determine whether it was stolen or not according to the testimony provided. 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 of showing that her vehicle was stolen.

12B.M. testified that the door to her home was not kept locked even though she and her husband were away on vacation. The keys were kept in an unlocked key box and the car was in the driveway, both providing easy access to J.K. and others. B.M. believed that J.K. would not again drive her vehicle while his licence was suspended, but she took no steps to prevent his doing so.

13Given this evidence, I cannot find that J.K. had stolen the vehicle. B.M. did not provide evidence to suggest she had specifically warned J.K. not to take the vehicle while she was away, notwithstanding his previous behavior. She left the door to the home open and the keys in a place that was known and easily accessible to J.K. B.M. knew that J.K. was not always able to control his behavior and that based on past incidents, had taken her car when he was in an uncontrolled state. Therefore I find that this ground of appeal must fail.

Evidence re: exceptional hardship:

14Section 50.2 of the Act sets out the grounds on which the owner of a motor vehicle may appeal its impoundment. Included in those grounds is 50.2(3)(d): “that the impoundment will result in exceptional hardship.”

15However, s. 50.2(4) provides that clause 3(d) “does not apply if there was a previous impoundment under section 55.1 with respect to any motor vehicle owned by the same owner”. Because J.K.’s driving of B.M.’s previous vehicles while his licence was suspended led to their impoundment, this ground is not available to B.M. and her claim of exceptional hardship must fail.

16Were that not the case, because B.M. is the registered owner of another vehicle, a Ford truck, which she has been able to use throughout the impound period, her evidence would not have been sufficient in any case, to support a claim of exceptional hardship as defined in the legislation.

ORDER

17Pursuant to subsection 50.2(5) of the Act, I deny the appeal and confirm the impoundment order.