Cheryl Campbell v. Registrar of Motor Vehicles, 2020 CanLII 27347

Date: 2020-02-24

File Number: 12533/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:

Cheryl Campbell

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Jacqueline Castel

Appearances:

For the Appellant: Cheryl Campbell, Self-represented

For the Respondent: Sanjay Kapur, Agent

Place and Date of Hearing: By Teleconference February 21, 2020

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A teleconference hearing was held on February 21, 2020 to consider the appellant’s appeal of the 45 day impoundment of her HYUN, TUC (the “vehicle”). The vehicle was impounded on January 2, 2020, because it was being driven by a person who is not a licensed driver. The driver also has a condition on his record that, in the event that he obtains a driver’s licence, he must only drive vehicles with an ignition interlock feature, and the appellant’s vehicle was not equipped with such a feature.

2The vehicle was released to the appellant when the 45 days elapsed and upon payment of the impoundment fees. The appellant is seeking reimbursement of the impoundment fees from the respondent.

ISSUES:

3The issues to be determined are: (1) whether the vehicle was stolen at the time of the impoundment; and (2) whether the impoundment resulted in exceptional hardship.

CONCLUSION:

5On the evidence before me at the hearing, I find that the vehicle was not stolen and the impoundment did not result in exceptional hardship within the meaning of s. 50.2(3)(a) and(d) of the Highway Traffic Act , R.S.O. 1990, c. H.8 (the “Act” or the “HTA”).

LAW AND ANALYSIS:

6The owner of a vehicle that has been impounded, pursuant to s. 55.1 of the HTA, may pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

7As noted above, the impoundment period ended prior to this hearing, and the appellant has already retrieved her vehicle. The practical issue remaining is whether she should be reimbursed by the respondent for the impoundment fees.

8There are limited grounds on which an owner may appeal an impoundment as set out in section 50.2(3) of the HTA. The appellant, in this case, appealed on the grounds of stolen and exceptional hardship.

Stolen

9Section 50.2(3)(a) of the Act provides that a vehicle impoundment may be appealed if the vehicle was “stolen” at the time of the impoundment.

10The term “stolen” is not defined under the Act. In the absence of a definition under the Act, the meaning of stolen under the Criminal Code (the “Code”) is instructive. Section 2 of the Code defines “steal” as “to commit theft”. Subsection 322(1) of the Code creates the offense of theft, which reads:

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

1. to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;”

11As such, in order for conduct to amount to theft, the perpetrator must intend to commit the act. In addition, the perpetrator must deal “fraudulently and without colour of right” with the subject matter, in this case the vehicle.

12The appellant testified that Kevin Chartier, the driver of the vehicle at the time of the impoundment, used to reside with her and has also worked for her in the past. Since August 2019, he has not lived with her, but visits a couple of times a week. She testified that he has used her vehicle, and another vehicle she previously owned, on several occasions when his licence was under suspension. On all such occasions, he returned the vehicle after using it for a short while for various purposes.

13The appellant testified that on the date of the impoundment, Mr. Chartier took the vehicle without her knowledge and permission. She stated that she left the keys to the vehicle by the front door and he “helped himself to them” while she was in the shower. The appellant stated that initially she did not want to file a report with the police, alleging that Mr. Chartier stole the vehicle, because he promised to contribute to the impoundment fees. When he failed to do so, she changed her mind about filing a police report. The appellant stated that she has not yet filed a report with the police. However, she indicated that she has left a number of messages with the police officer who ordered the vehicle to be impounded.

14Mr. Kapur, the agent representing the respondent, introduced a statement from OPP Constable Andrew Thomas, who ordered the vehicle to be impounded. According to this statement, Mr. Chartier told Constable Thomas that he was using the vehicle to run errands in town. Constable Thomas indicated in his statement that Mr. Chartier did not have any personal items in the vehicle. In addition, according Constable Thomas’ statement, when the tow truck arrived, Mr. Chartier asked to detach the keys to the appellant’s business from the key chain with the keys to the vehicle. Finally, Constable Thomas’ statement indicates that the appellant left three voice-mail messages for him indicating that she wishes to pursue “stolen vehicle” charges against Mr. Chartier to mitigate her financial obligations to the tow company.

15OPP Constable Evan Neville testified that he has observed Mr. Chartier driving vehicles belonging to the appellant on four or five occasions in the past while he was off duty. On at least one of the occasions, he observed Mr. Chartier using the appellant’s vehicle to pick up a child from a local elementary school.

16The appellant has not satisfied me that Mr. Cartier took her vehicle, on the date of the impoundment, without her express or implied consent. She acknowledged that he has used her vehicle on prior occasions with her permission (express or implied). She did not explain why his use of the vehicle, on the date of the impoundment, was any different from these prior occasions.

17Even if I accept that Mr. Chartier did not have the appellant’s permission to use the vehicle, on the date of the impoundment, the definition of stolen, for the purpose of section 50.2(3)(a) of the Act, is more narrow than “taken without the owner’s consent”, whether express or implied. The words “taken without consent” are used in other sections of the Act, such as section 207. If it had been the legislative intent for section 50.2(3)(a) to be satisfied, when a vehicle is taken without consent or permission, this language would have been specifically used. The legislature, in using the word stolen, intended for the test to be higher and more stringent than merely “taken without the owner’s consent”.

18There was no evidence that Mr. Chartier intended to deprive (temporarily or permanently) the vehicle from the appellant. There was also no evidence that he

“fraudulently or without colour of right” took the vehicle. The appellant admitted that on the date of the impoundment, she allowed Mr. Chartier into her home and left him unsupervised, while she was in the shower. She also left the keys in their usual spot, on a hook at the front door, which would have been easily accessible to him. Further, as noted above, she has allowed him to use her vehicle in the past.

19For the above reasons, the evidence does not support a finding that Mr. Chartier stole the vehicle, within the meaning of section 50.2(3)(a) when it was impounded.

Exceptional Hardship

20Section 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. In order to establish exceptional hardship, the first requirement set out in 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. I find that the appellant has not met this first requirement.

21The appellant testified that she works as a commercial cleaner in Blue Mountain. She gave evidence that she rented a vehicle for one week during the period of impoundment. She also stated that she borrowed her son’s vehicle, which is registered in her name, to get to and from work. When her son was not able to lend her his vehicle, she took taxis or asked employees to drive her. She also testified that she worked for 19 days without a day off so she could afford to pay the impoundment fees.

22There is no doubt that the appellant was inconvenienced because of the impoundment. However, the evidence does not support exceptional hardship because the appellant had alternative modes of transportation available. For this reason, I do not need to consider the other provisions of s. 10 of the regulation.

ORDER:

23Pursuant to subsection 50.2(5) of the HTA, I deny the appeal and confirm the impoundment order.