Laverne Robinson v. Registrar of Motor Vehicles, 2019 CanLII 76853

Date: 2019-06-27

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle pursuant to section 55.1(3) of the Act.

Between:

Laverne Robinson

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Stephen Scharbach, Member

Appearances:

For the Appellant: Michael Seeley, Paralegal

For the Respondent: Nora Challis, Agent
Sonia De Santis, Agent

Place and Date of Hearing: Teleconference Hearing
June 18, 2019

REASONS FOR DECISION AND ORDER

Overview

1The appellant appeals the impoundment of her motor vehicle, a 2006 Jeep Grand Cherokee (“Jeep”).

2The Highway Traffic Act requires that a police officer impound a motor vehicle if it is being driven by a person in contravention of a driver’s licence condition that prohibits the driver from driving a vehicle not equipped with an ignition interlock device.

3The appellant’s Jeep was not equipped with an ignition interlock device. On May 20, 2019, it was impounded for 45 days when an Ontario Provincial Police constable discovered it being driven by Marquis Black, a driver whose licence was subject to that condition.

4The appellant appeals on the single ground that the vehicle was stolen at the time it was impounded.

ISSUE

5Should the Registrar be ordered to release the appellant’s vehicle on the ground that the vehicle was stolen at the time it was detained for impoundment?

DECISION

6The evidence does not support a conclusion that the appellant’s Jeep was stolen at the time it was detained and the impoundment is therefore confirmed.

THE LAW

7Under the Highway Traffic Act (“HTA”), a police officer “shall” impound a motor vehicle for 45 days if the officer is satisfied that it was being driven by a person,

“…in contravention of a condition…that prohibits him or her from driving a motor vehicle that is not equipped with an ignition interlock device¹

8The owner of an impounded vehicle may appeal the impoundment to this Tribunal². On appeal, the Tribunal may confirm the impoundment or order the Registrar to release the vehicle.³

9There are only four grounds on which an owner may appeal. One of those grounds is;

that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded⁴.

10The onus is on the appellant to establish, on a balance of probabilities, that the vehicle was stolen.

THE IMPOUNDMENT

11The evidence established that the appellant is the registered owner of the Jeep. The appellant’s husband is the primary user of that vehicle.

12The appellant primarily uses a different vehicle. According to the testimony of the appellant’s husband, both cars are registered in the appellant’s name in order to obtain a more favourable car insurance rate.

13On May 20, 2019, the appellant’s husband lent his primary vehicle, the Jeep, to Marquis Black, a recent acquaintance. The appellant’s husband did not tell the appellant about that beforehand and the appellant first learned that Marquis Black had been driving the Jeep after the Jeep was detained for impoundment.

14Marquis Black’s driver’s licence was subject to a condition that prohibited him from driving a vehicle not equipped with an ignition interlock device. That condition was imposed after Marquis Black had been convicted of a drinking and driving offence. According to the appellant and her husband, they were unaware that Marquis Black’s licence was subject to that condition and Marquis Black did not tell them about it.

15The Jeep was not equipped with an ignition interlock device. By driving the Jeep, Marquis Black was in contravention of the condition and the Jeep was subject to impoundment.

16On May 20, 2019, while Marquis Black was driving the Jeep on Highway 401, it apparently ran out of gas. An Ontario Provincial Police officer stopped to render assistance.

17When the officer became aware that Marquis Black was driving the Jeep in contravention of the condition, she impounded the vehicle for 45 days as required by section 55.1(1) of the HTA.

APPELLANT’S POSITION

18The appellant’s position is that the vehicle was stolen at the time it was impounded and the Tribunal should therefore order the Registrar to release it.

19The appellant argues that although the HTA and the relevant regulations do not define the term “stolen”, some guidance can be drawn from the Criminal Code of Canada which provides that:

“Steal” means to commit theft.⁵

“Everyone commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or the use of another person, anything … with intent,

(a) to deprive temporarily or absolutely, the owner of it, or a person who has a special property or interest in it…”⁶

20The appellant also points to Marshall v. Registrar of Motor Vehicles⁷, a Divisional Court case dealing with impoundment, in which the Court stated in an endorsement:

“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”

21The appellant argues that in the present case the Jeep was taken without her consent and with the intention to deprive her of it (although temporarily). The vehicle was therefore stolen at the time it was detained for impoundment.

WAS THE JEEP STOLEN?

22In my view, the Jeep was not stolen at the time it was detained for impoundment.

23The Jeep was driven by Marquis Black with the consent of the appellant’s husband, the regular and primary user the vehicle.

24While it is true that the appellant is the registered owner and she did not give specific consent to Marquis Black using the Jeep, she consented to her husband’s use of the vehicle and there was no evidence that she placed any restriction on that use.

25Based on the evidence presented, I conclude that Marquis Black did not steal the Jeep - he borrowed it from the appellant’s husband who, with the appellant’s consent, had unrestricted use of the vehicle.

26This case is significantly different in that respect from the two particularly relevant Tribunal cases to which I was referred.

27In 10499 v Registrar of Motor Vehicles⁸ the appellant operated a pool maintenance business and owned a vehicle used in connection with that business. His son, a suspended driver, worked in the business but was specifically forbidden to use the vehicle and steps were taken to restrict the son’s access to the keys. However, the police discovered the son driving the vehicle and it was impounded.

28The appellant successfully appealed on the basis that the vehicle was taken without the owner’s consent and was stolen. The Tribunal concluded that:

There is enough evidence about the suspended driver and the efforts of the vehicle owner … to prevent him from driving the vehicle to make a clear finding that this suspended driver took the vehicle without the consent of the owner or of the person to whom the owner entrusted the vehicle…The Tribunal therefore finds … that the vehicle was stolen…

29In 9315 v. Registrar of Motor Vehicles⁹, the appellant’s car was impounded when it was discovered being driven by the appellant’s son, a suspended driver. The appellant testified that he lent the car to his son’s girlfriend who was pregnant and required a reliable car. However, the son was specifically not allowed to use the car.

30The girlfriend testified that she made it clear to the son that he did not have permission to use the car and he was not allowed to use it. The son nevertheless drove the car without the knowledge of either the appellant or the girlfriend. The Tribunal concluded that the vehicle was taken without consent and was stolen at the time it was detained.

31In both cases the owners allowed someone else to use their vehicle but specifically prohibited a third person – in both cases a suspended son - from driving the vehicle. In both cases the suspended driver took the vehicle without the consent of either the owner or the person to whom the owner entrusted the vehicle. The Tribunal concluded in those circumstances that the vehicle was stolen.

32In this case, the appellant consented to her husband using the Jeep as his primary vehicle. Unlike the two cases above, there was no evidence or suggestion that she imposed any restriction about lending the car to others. The appellant’s husband was apparently free to lend the vehicle and he lent the Jeep to Marquis Black. Marquis Black drove the vehicle with the husband’s consent, and by extension with the consent of the appellant.

33In these circumstances, I cannot conclude that that the Jeep was stolen at the time it was impounded.

ORDER

34Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s motor vehicle.

Footnotes

1. 1HTA, s. 55.1(1) 2
2. 2HTA, s. 50.2(1)
3. 3HTA, s. 50.2(5)
4. 4HTA, s. 50.2(3)
5. 5Criminal Code, s. 2
6. 6Criminal Code, s. 322(1)(a)
7. 72001 CanLII 39007 (ON LAT)
8. 82016 CanLII 101782 (ON LAT)
9. 92015 CanLII 9439 (ON LAT)