P.L. v. Registrar of Motor Vehicles, 2019 CanLII 37552

Date: 2019-04-26

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 for driving while suspended

Between:

P.L.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

PANEL: Jennifer Friedland, Member

APPEARANCES:

For the Appellant: P.L., Appellant

For the Respondent: Sanjay Kapur, Agent

Heard by teleconference on: April 11, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellant appeals the impoundment of his 2017 GMC Savana Cargo Van (the “vehicle”) under s. 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “Act”). He seeks an order releasing the vehicle from impoundment.

2The hearing proceeded by way of a teleconference on April 11, 2019.

3For the reasons stated below, the vehicle is ordered to be released on the basis that it was stolen at the time that it was detained in order to be impounded.

ISSUES

4Section 50.2 of the HTA provides that the owner of an impounded vehicle may appeal the impoundment to the Tribunal. That section also sets out the only permissible grounds upon which an appeal can be based. The appellant’s appeal is based on the following grounds allowed under 50.2 (3):

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

d) that the impoundment will cause exceptional hardship.

THE FACTS

5The appellant owns and operates a restoration business which provides clean up services related to insurance claims, for example following a flood. The business has a main office in Toronto, a remote office near Barrie, Ontario, and an office in Ottawa. According to the appellant, his company brings in approximately $6 million in revenue each year. The appellant has about 80 employees and a fleet of approximately 30 vehicles.

6The person who was driving the impounded vehicle was GS, an employee of the Appellant, whose licence had been suspended since 2010 for refusal to provide a breath sample. GS’ licence remained suspended thereafter because he did not complete a remedial program.

7The appellant knew that GS did not have a valid driver’s licence. He testified that every employee was required to provide a driving abstract before being allowed to drive the company’s vehicles. In GS’s case, as he had no valid driver’s licence he was not a driver, nor was he insured to drive. Rather, the appellant always provided a licenced driver to drive for GS.

8The appellant described GS as one of his lead crew members who had been working for him for about a year. GS was described as having been a “great worker.” He was fired after taking the vehicle on the night in question.

9The appellant testified that the vehicle was taken from the Barrie location. The vehicle was a cargo van. It was detained and impounded on Friday March 15, 2019 around 8:45 pm.

10In an effort to understand what had happened that evening, the appellant spoke to a co-worker of GS’ who had been the driver on a job with GS that day. The co-worker told the appellant that she and GS had returned from a job at around 7pm. The co-worker then went home and GS remained behind at the Barrie office.

11The appellant explained that the office was open “24/7” because calls could come in at any time, requiring clean-up crews to be sent out. He testified that there were video surveillance cameras at the office, but he had not checked them. In terms of supervision, he explained that he stopped by that office about once a week, and that a supervisor was there daily. However, it was not uncommon for employees to use the office at “all hours” due to the nature of the business.

12He described that the keys to all of the vehicles at that location hung on a board in the office.

13When asked whether GS might have taken the vehicle in the past, the appellant acknowledged that he might have, but that he had no reason to suspect that was the case.

14GS was stopped by the police at a gas station near the office. The arresting officer, Constable Allport, was called as a witness for the respondent. Cst. Allport testified that when he stopped the vehicle, GS told him he was just filling up the van for a job scheduled for the following morning. Cst. Alcott noticed that the gas light was on in the van. He also observed that the key to the vehicle was on a ring that also carried GS’ personal keys.

15The appellant also spoke to Cst. Allport a few days following the impoundment. He wanted to know what GS had done to get himself pulled over and he wanted to know how he could get his vehicle out of the impoundment. He did not seek to press charges against GS for theft. When questioned about this by the respondent, the appellant explained that the police did not ask him about pressing charges and he assumed it was something that the police would decide. He did tell the police officer that GS did not have his consent to drive any of his vehicles and that he provided a licensed driver for any job that GS was on.

16Following the impoundment, the appellant rented a vehicle and also purchased a vehicle to replace the van that had been impounded.

ANALYSIS

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

17The word “stolen” is not defined in the Act.

18The Divisional Court, in the case of Marshall v. Ontario (Registrar of Motor Vehicles) [2002] O.J. No. 745, has provided the following definition of “stolen” in the impoundment context. In that case, the Court stated that a vehicle is “stolen” within the meaning of the Act

… when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.

19In impoundment cases, the burden is on the appellant to prove that the vehicle was stolen. The proof must be established on a balance of probabilities.

20In the present case, the respondent argues that GS had “tacit consent” to take the vehicle. He bases this conclusion on the following factors:

a) that the keys were available to GS

b) that GS told the police he was just filling up the tank for work the next day, which, in the respondent’s submission means that he was using the vehicle in the course of his employment;

c) that the key to the vehicle was on a key ring together with GS’s personal keys which the respondent submits is proof that GS regularly took the vehicle; and

d) that the owner did not seek to lay charges against GS for theft, nor did the police lay such a charge.

21The Tribunal does not agree that these factors amount to “tacit consent.”

22First, the evidence of the appellant was that GS did not have consent to drive any of the company vehicles, tacitly or otherwise. To the contrary, the evidence was that the appellant specifically provided a driver when GS and his crew were sent on a job. I found the appellant’s testimony in this regard to be consistent, forthright and credible.

23With respect to the keys being available, I am not persuaded that by storing the keys to the company vehicles on a wall in the office, the appellant was tacitly consenting to the vehicle being taken. In a workplace environment, any number of items are available for the taking to employees who wish to act nefariously. For example, computers, photocopiers, and office supplies are commonly available in most offices. However, the availability of such items hardly authorizes an employee to walk out with them. I find there to be little difference here in the context of taking a company vehicle without permission, despite knowing where the keys are kept.

24The respondent points to the case of D.D. v. Registrar of Motor Vehicles, 2018 ON LAT HTA MVIA 11255, at paragraph 16, where the Tribunal found that the owner had “…a responsibility to take proportionate steps to prevent her spouse, an unlicensed driver, from accessing her vehicle and taking it out on the road.” The Tribunal went on to reference, in particular, the owner failing to “take a significant or proportionally cautious a step in securing her keys.”

25I find that the context of the member’s comments in D.D. is distinguishable from the case at hand. In D.D., the unlicensed driver was the appellant’s husband who had a history of driving while disqualified. In the 2 years since the initial suspension, he had two subsequent convictions for driving while suspended, plus one drive disqualified conviction under the criminal code. His own car had already been impounded once in that time frame and his wife described him as facing a “rapid decline in his mental state … that has led to irrational decision-making on his part.” Against those facts, the member concluded that the owner “had long known about her spouse’s challenges with abiding by driving restrictions” and that this created “at least a reasonable expectation that D.D’s spouse may at some point take her vehicle.” It was “with that reasonable expectation” that the member imposed a duty to take “a proportionally cautious” step to secure the keys.

26This is not the case here. The appellant in the case before me had no prior issues with GS attempting to drive any of his vehicles nor any reasonable expectation that he would do so. In my view, the fact that GS did not have a valid driver’s licence did not increase the chances that he would take a company vehicle without consent; if anything, it decreased that possibility. GS’s driving record was put into evidence by the respondent and showed that GS initially lost his licence in 2010; however, unlike the driver in DD, he did not have any drive disqualified or drive suspended entries in the nine years since that time. Meanwhile, GS had worked for the appellant for approximately a year and was considered a “great worker.” The fact that he was fired by the appellant as soon as the appellant learned that he had taken one of his vehicles, is some indication of how unexpected and improper GS’ taking of the company vehicle was, from the appellant’s perspective.

27With respect to the respondent’s argument, that GS was driving in the course of his employment because he told the arresting officer that he was just getting gas for a morning job, I cannot agree that this amounts to “tacit consent” to take the vehicle. Even if it is true that GS was only getting gas for a morning job, the evidence of the appellant was that he did not have permission to do this. Moreover, the explanation that GS gave to the police is worth little weight. A culprit who has just been caught driving a vehicle he is not supposed to be driving, without a licence, is hardly going to admit those facts to a police officer.

28Similarly, I do not find the fact that the key to the van was on GS’s personal key ring to be probative of “tacit consent.” I do not find it unusual that a person would put a single key on a ring with his or her other keys when taking a vehicle. I cannot infer from this that the vehicle key was always on GS’ personal ring, as the respondent submits, and that GS was therefore regularly driving the vehicle with the tacit consent of the appellant. If an inference is available from the fact that the vehicle key was on GS’ personal key ring, it could just as easily be that GS was taking the vehicle, not just for gas that evening, but for the rest of the weekend, if not longer.

29With respect to the respondent’s submission that if the appellant thought the vehicle had been stolen then he would have pressed charges; this Tribunal has regularly held that a vehicle can be found to have been stolen within the meaning of the Act, without charges have been sought by the owner or laid by police. I am satisfied that by firing GS, the appellant sufficiently conveyed to the appellant the wrongfulness of the act (see in this regard Tandel Nationalease Ltd v. Registrar of Motor Vehicles, 2015 CanLII 89151 where the Tribunal similarly found the firing of the driver to be “sufficient” admonishment for the driver’s actions).

30Given all of the above, I find, on a balance of probabilities, that GS took the appellant’s vehicle without his consent or permission. In the context of this case, this taking amounts to GS having stolen the vehicle. The vehicle should therefore be released.

31Having made this determination, there is no need for me to consider the ground of exceptional hardship.

ORDER

32Pursuant to s. 50.2(5) of the Act, the appellant’s motor vehicle is ordered to be released.