V.R. v. Registrar of Motor Vehicles, 2019 CanLII 43906

Date: 2019-05-06

Appeal under section 50 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:

V.R.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION and ORDER

ADJUDICATOR: Katherine Livingstone, Member

APPEARANCES:

For the Applicant: Self-represented

For the Respondent: Mr. Sanjay Kapur

Heard by Teleconference on: March 18, 2019

OVERVIEW

1V.R. appeals the February 7, 2019, impoundment of her 2005 Honda Accord, that was licence plated (the vehicle). She kept the vehicle at her residence. She has a boyfriend, B.M. who was a suspended driver at the time of the incident in question.

2On the night of the impoundment V.R. went to sleep and was awaken in the early morning hours by police at her door saying her vehicle had been in an accident a short distance from her residence.

3When the police arrived at the accident sight there was no driver present. While the police were at the appellant’s door, B.M was seen coming towards the residence. After being spoken to by police he was arrested. V.R.’s vehicle was subsequently impounded.

4The appeal is on the basis that V.R.’s vehicle was stolen at the time it was involved in the accident and the impoundment has caused V.R. exceptional hardship.

5Additionally the Tribunal has also considered whether there is evidence that a suspended driver was operating the vehicle at the time of the accident, which led to it being impounded.

6After considering all of the evidence provided, the Tribunal orders the release of the vehicle.

ISSUES

7The issues to be determined are:

(a) Was V.R.’s vehicle stolen at the time it was driven by the suspended driver?

(b) Was there evidence a suspended driver had been driving the vehicle during the incident that led to the impoundment?

(c) Has the impoundment caused V.R. exceptional hardship?

EVIDENCE

i) Appellant

8The appellant gave evidence that she had been in a relationship with B.M. for some months leading up to the impoundment on February 7, 2019. He stayed at her house overnight several nights a week but maintained his own residence. He has been in custody since the time of his arrest on February 7, 2019.

9V.R. said B.M. did not have a key to her house however access to the house was easy due to a faulty back door window.

10V.R. said she was aware B.M.’s licence was suspended and often took the step of putting her keys in the safe so B.M. did not have access to them. She was quite adamant during her evidence she did not ever allow him to drive her car. On the night in question she believes she left the keys on top of a cabinet as B.M. was not staying overnight.

11The appellant advised she had seen B.M. earlier in the day but he had left in the late afternoon. She said she went to bed around 9:30 pm and was wakened about 3:00 am by police knocking on her door to tell her that her vehicle had crashed into a tree down the street. While she was talking to the police B.M. came walking into the complex where she lives.

12V.R. said she does not know if B.M. was driving her vehicle on the night of the accident. She said she still wants to be involved with him however that may change should she determine he was the driver on the night of the accident. Her vehicle was totalled in the accident and she will have to buy a new car. She said she can’t afford the impoundment fees.

13She was contacted by police the day after the accident and gave a statement to them. She says she told them the vehicle was taken without her consent but she did not want to report it stolen as she thought this would result in a court ordered condition being placed on B. M. prohibiting contact with her. She did not want such a condition as she still wants to be able to talk to him.

14With respect to the issue of hardship the appellant said she is a single mother with a 4 year old daughter. V.R. is attempting to upgrade her education so that she can attend college in the fall.

15The loss of her car means it now takes longer for her to take her child, to school, which in turn means the child has to get up earlier in the morning. This has led to major behavioural issues at school. Additionally, the appellant has been unable to go to her own classes as the lengthier period of time travelling on buses to take her child to school means she is missing her own classes. This has jeopardized her ability to upgrade in time to be able to enroll in college classes in September.

16She has had some support with respect to transportation issues from her mother, although her mother’s support is measured as their relationship is strained. The mother testified she is able to assist on occasion but not regularly as she is employed. She also corroborated VR’s description of her daughter’s increased behavioural issues at school.

ii) Respondent

17The respondent called Cst. Cargill to give evidence with respect to his involvement on the night of February 7, 2019. The officer was giving evidence without the benefit of notes however he said he had the opportunity to review his notes before giving his evidence.

18The officer indicated he had attended the scene of an accident and noticed heavy damage to the vehicle. He did not give any evidence about seeing anyone in the driver’s seat or indeed around the vehicle.

19He said he ran the vehicle information and determined the owner was V.R. so together with two other officers he attended at V.R.’s residence, arriving at approximately 2:40 am.

20The officer told the Tribunal that when they arrived at V.R.’s residence she appeared to have just woken. He said she seemed indifferent to the news of the accident however she did say “her boyfriend had left in the vehicle earlier that night”. The officer did not say if V.R. said who was driving the vehicle. While the officers were talking to her, B.M. entered the complex where he was approached by police and subsequently arrested. The officer did not explain the reason for B.M.’s arrest.

21Constable. Cargill said he “had reasonable grounds” to believe B.M. was the driver of V.R.’s vehicle given his injuries, odour of alcohol and “proximity to the collision”. He did not however elaborate on what that “proximity” was. The officer indicated he was constrained in the information he could provide at the hearing, about whether B.M. was operating the vehicle, as the matter was still before the criminal courts. To be clear, however, the Tribunal heard no evidence of whether B.M. was driving the vehicle at the time of the accident and there was no evidence of anyone seeing him drive the vehicle immediately prior to the accident.

22The officer agreed with V.R.’s position that had she reported the vehicle stolen, the police would have deemed this a domestic incident and requested a condition of non-communication between V.R. and B. M.

23During the cross examination of Constable. Cargill, the applicant took issue with the officer’s description of her lack of caring about what had happened. She also questioned the officer as to whether he remembered her saying her boyfriend had left in a car earlier with some friends. He disagreed with this suggestion but was unable to recall the specifics of the entire conversation the appellant had with all of the officers at the door. His recollection of the interaction with V.R. was sketchy at best.

24The documents tendered by the Registrar and admitted into the record of the respondent were:

I. A copy of the Notice to Registrar of Suspension and Impoundment for 45 days, dated February 7, 2019 and prepared by officer Cargill, who detained the impounded motor vehicle. Under the heading “Driver Information”, the name B.M. is inserted together with his driver’s licence number. The Notice also includes the name of the owner of the vehicle, V.R. and the reason for the impoundment, a criminal code related suspension with respect to B.M.

II. A copy of the Ministry of Transportation records indicating B.M. had been convicted of a Criminal Code offence and on January 28, 2010 his licence had been suspended for failing to complete the remedial program in relation to that criminal code offence. The suspension was still in place on February 7, 2019.

III. A copy of the Notice of Impoundment served on V.R.

IV. A second Notice to Registrar completed by an officer Bailey with respect to a concurrent impoundment of 7 days as a result of the alleged driver B.M. refusing to provide a breath sample.

LAW AND ANALYSIS

25The intent of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the HTA) is to promote public safety by preventing unlicenced drivers from operating motor vehicles. Pursuant to s. 55.1 of the HTA, a vehicle shall be detained and impounded where the licence of the person driving the vehicle is under suspension.

26The owner whose vehicle is impounded can appeal to this Tribunal to have the Registrar release the vehicle, on the basis of any of the grounds listed in s.50.2 (3) of the HTA. Three of those grounds are relevant to this hearing:

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

(b) that the driving licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not the subject of suspension

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

27Appellants have the onus to establish, on the balance of probabilities, that any of the grounds in s 50.2 have been met.

Was there evidence that the driver of the vehicle at the time it was impounded was not under suspension?

28As noted above the onus in the appeal is on the appellant. However the Tribunal must look at the evidence as a whole. In this unusual fact situation the Tribunal is not satisfied there is sufficient evidence to determine who the driver was and therefore the appellant is not in a position of having to establish on a balance of probabilities that the driver was not in fact suspended.

29The appellant testified she did not know who was driving her vehicle that night and in fact if she determined it to be B.M. she would end the relationship. There was some evidence from the officer that V.R. made a statement to the effect that B.M. had left in the vehicle earlier that night but again no indication of who was driving at the time of the accident. The officer did provide some observations of B.M. when he was arrested including an odour of alcohol and injuries however that is of little assistance as to who the driver was.

30The officer was not prepared to provide the Tribunal with all the information he had with respect to his belief that B.M. was the driver at the time of the incident that led to the impoundment. This was apparently because he had received instructions from a Crown Attorney that further information would interfere with the ongoing criminal matter. So, although there may be additional evidence pointing to who was actually driving the vehicle, the Tribunal did not hear it.

31In summary, as there is no clear evidence as to who was driving the vehicle at the time of the incident that led to the impoundment the appellant is not in a position of having to demonstrate that the driver was not suspended at the time of the impoundment.

32The Tribunal concludes that in the absence of satisfactory evidence of who was driving the vehicle at the time of the impoundment, the initial basis for the impoundment that is that the driver was suspended, is questionable.

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

33The HTA does not define what “stolen” means. In Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745, the Divisional Court held the Tribunal should not limit the meaning of “stolen” only to an intention to take the vehicle permanently. The Court stated:

In our opinion a vehicle is “stolen” in this context when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.

34The test for whether a vehicle is stolen is highly fact specific. There is no requirement that the car be reported stolen but this is one of the factors that can be considered in concluding that it was stolen. At the very least, the Tribunal must find that the appellant did not implicitly consent or reasonably expect the vehicle to be taken.

35In the present case, as indicated above there is no clear evidence of who the driver was. However the Tribunal finds the appellant has established, on a balance of probabilities that she did not consent to the vehicle being taken from her residence on the night of the accident. She was clear in her evidence that she relied on the use of her car for transport for her and her daughter. She testified she usually took steps when B.M. was staying over to put the keys in a safe as she knew he was a suspended driver. She was also adamant that she had not allowed B.M. to drive the car before. She acknowledged that keys were not in the safe that night as B.M. was not staying over.

36With respect to the position of the respondent that she did not file a stolen vehicle report, she testified that she completed a police statement the day after the accident in which she said the vehicle was taken without her consent but she did not want to file a stolen vehicle report as she still wanted contact with B.M. There was no evidence to the contrary.

37The Tribunal gives little weight to the evidence of the officer as he was not able to recall the entirety of the conversation the appellant had with the officers on the night of the accident Additionally he was constrained in the evidence he gave which in turn affected the weight to be given to his evidence.

38In all the circumstances, the Tribunal finds the appellant did not explicitly or implicitly consent to the taking of her vehicle and she has established on the balance of probabilities that the vehicle was stolen.

Will the impoundment result in exceptional hardship?

39As noted above the Tribunal Section 10 of Ontario Regulation 631/98 (the Regulation) provides the criteria to be considered when determining whether impoundment will result in exceptional hardship. Under the Regulation the Tribunal must consider whether there is a reasonable alternative mode of transportation available to the appellant, including public transportation or using another vehicle.

40Additionally section 10 of the Regulation also prescribes that only where there is no reasonable alternative can the Tribunal consider whether the impoundment will cause a health or safety concern or financial or economic loss that is immediate, significant and lasting. Inconvenience to any person is not exceptional hardship.

41The Tribunal acknowledges V.R.’s challenges with respect to getting her child to school and herself to class on time however finds the impoundment of the vehicle does not create exceptional hardship as contemplated by the statute. Additionally, the impounded vehicle was totalled in the accident and therefore release would not ease her present transportation difficulties.

42V.R. argues the most difficult hardship she experiences is not the impounding itself but rather in the cost she would have to pay to have the vehicle released, which is money that would go towards the purchase of a new car.

43However financial hardship or loss only forms part of the Tribunal’s consideration where the Tribunal finds there is no reasonable alternative mode of transportation. In this case the appellant has the option of public transportation and some reliance on her mother. Therefore some reasonable alternatives exist and therefore the Tribunal cannot consider V.R.’s financial difficulties as part of its analysis of exceptional hardship.

ORDER

44After considering all of the evidence the Tribunal orders the release of the vehicle.