Debora Willsher v. Registrar of Motor Vehicles, 2020 CanLII 27367

Date: 2020-03-12

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

Between:

Debora Willsher

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR:

Patricia McQuaid, Vice-Chair

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Stella Velocci, Agent

Heard by teleconference:

March 10, 2020

OVERVIEW

1A teleconference hearing was held on March 10, 2020 to consider Debora Willsher’s (the “appellant”) appeal of the impoundment of her 2015 Volkswagon Tiguan (the “vehicle”) on February 5, 2020 for 45 days. The impoundment period ends on March 21, 2020.

2The appellant has appealed on the grounds that the vehicle was stolen at the time it was detained to be impounded and that the impoundment will result in exceptional hardship. She requests that the vehicle be released.

ISSUES

3The issues to be determined are:

(a) Was the appellant’s vehicle stolen at the time it was detained in order to be impounded?

(b) Will the impoundment result in exceptional hardship?

CONCLUSION

4After considering the evidence and submissions provided, I find that the appellant’s evidence supports a finding that the vehicle was stolen at the time it was impounded. Having made that finding, I do not need to decide the issue of exceptional hardship. I therefore order the release of the vehicle

EVIDENCE and ANALYSIS

5As noted in paragraph 4, I need not decide the issue of exceptional hardship, given my finding with respect to the issue of ‘stolen’. However, I do note, for the record, the appellant’s evidence regarding her personal circumstances. The appellant is a retired registered nurse. Her husband is terminally ill with liver cancer and is receiving palliative care. The appellant does own a 2007 van as well as the impounded vehicle and while not as reliable, she is able to drive it locally, in Simcoe, to attend to their needs, but is reluctant to drive it on the highway. Her husband has had two doctors’ appointments since the impoundment which required them to drive to Hamilton. The appellant’s sister in law has driven them to these appointments. Therefore, the appellant does have a reasonable alternative to the impounded vehicle.

Was the vehicle stolen at the time it was detained in order to be impounded -s. 50.2(3)(a)

6The intent of the legislation is to promote public safety by preventing unlicensed drivers from operating motor vehicles. The meaning of “stolen” is not defined in the Act. A vehicle may be stolen if it is taken without the owner’s consent. That consent may be express or implied.

7The Divisional Court held in Marshall v Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745 that the Tribunal should not limit the meaning of “stolen” only to an intention to take the vehicle permanently. The Court stated that the word “stolen” could also apply to an intention to take the vehicle temporarily. The Court reviewed the circumstances of that case and 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.”

8Recent Tribunal jurisprudence (see Downard v. Registrar of Motor Vehicles, 2020 ONLAT 12496 - unreported) suggests that looking at the meaning of stolen under the Criminal Code (the “Code”) is instructive. The Code defines ‘steal’ as to ‘to commit theft’ which requires an intention to take the thing (in this case, the vehicle) fraudulently and without colour of right , temporarily or absolutely.

9When analyzing this issue, much depends on the particular facts before the Tribunal. Here the driver of the vehicle at the time of the impoundment was the appellant’s 28 year old daughter who lives in their basement. The appellant stated that on the night of the impoundment the daughter came upstairs and said she was going outside for a cigarette. The appellant had no idea that her daughter had removed the car keys from her purse and taken the vehicle. At the hearing, on cross examination, she stated that had she known she would have called the police immediately.

10The appellant only discovered that the vehicle was missing when her daughter returned to the house, crying, telling her that the car had been impounded. The Notice of Impoundment indicates that the vehicle was impounded at 11:30 p.m. The appellant stated that she then called the police and asked why they did not charge her daughter to which the officer responded that he could not imagine that she would want to have her daughter charged.

11The appellant stated that since this incident, she now locks the car keys in a safe. The fact that the car keys were in the appellant’s purse and therefore accessible to the daughter on February 5^th might well suggest implied consent or acquiescence for the use of the vehicle, but a close examination of the facts leads me to conclude, on a balance of probabilities, otherwise.

12The appellant described being ‘gobsmacked’ by her daughter’s actions that night. She thought they were “long past all of that”. The daughter’s driver’s record, submitted into evidence by the Registrar shows that the daughter’s driver’s licence was first suspended in July 2013 for driving with a blood alcohol content in excess of .08 contrary to the Code. Her licence was suspended until July 2014 and the Court ordered that she complete a remedial program. The licence suspension remained in place after July 2014 because she failed to complete the remedial program. In December 2014 she was convicted for driving while disqualified (offence date of August 2013) and her licence was suspended until December 2016. However, Ms. Velocci advised that the licence remains suspended because the remedial program has not been completed.

13The driver’s record ends with the December 2014 conviction. The appellant stated that incident was the last time that her daughter had taken her vehicle. It is this evidence together with the driver’s record which lends considerable credence to the appellant’s reasonably held belief that this kind of behavior, and risk, was a thing of the past. These facts are very different from situations where a vehicle owner leaves car keys accessible to a suspended driver who has on recent occasions taken them to drive the vehicle; here, the appellant stated that the last time her daughter took the vehicle was in 2014, over five years ago. The appellant’s response to police and her subsequent action in locking away the keys as well as the daughter’s statement to her mother that she was going outside for a cigarette and her tearful return to the house also support the conclusion that the vehicle was stolen: it was taken without the appellant’s consent and the daughter intended to take the vehicle, if temporarily, when she was aware that she had no right to do so.

14This appeal presented a difficult set of facts. I commend the Registrar’s agent for her professionalism at the hearing.

ORDER

15For the reasons set out above, The Tribunal finds that the appellant has met the onus to establish on a balance of probabilities that the vehicle was stolen at the time it was detained for impoundment.

16Therefore, pursuant to subsection 50.2(5) of the HTA, I order the Registrar to release the motor vehicle.