File Number: 12496/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:
Sandra Downard
Appellant
And
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Jacqueline Castel
Appearances:
For the Appellant: Sandra Downard, Self-represented
For the Respondent: Sanjay Kapur, Agent
Place and Date of Hearing: By Teleconference January 24, 2020
REASONS FOR DECISION AND ORDER
OVERVIEW:
1A teleconference hearing was held on January 24, 2020 to consider the appellant’s appeal of the 45 day impoundment of her 2014 KIA, OLX (the “vehicle”). The vehicle was impounded on December 8, 2019, because it was being driven by a person whose driver’s licence was under a Criminal Code suspension. The vehicle was released to the appellant on January 22, 2020, when the 45 days elapsed, and she paid the impoundment fees. The appellant is seeking reimbursement of the impoundment fees from the respondent.
ISSUES:
2The 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:
3On 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:
4The 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.
5As 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.
6There 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
7Section 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.
8The 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,
- 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;”
9As 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.
10The appellant testified that the driver of the vehicle, at the time of the impoundment, was her spouse. She explained that on the date of the impoundment, she was at home doing Christmas baking. Her spouse told her he was going to a sports bar located approximately 10 minutes from their residence, when he took the vehicle. She stated that her assumption, at the time, was that he was going to walk to the neighbourhood bar.
11According to the appellant’s evidence, her spouse took the keys to the vehicle from her purse without her knowledge or permission. She acknowledged that she does not hide her purse or the keys to the vehicle, nor does she keep them in a locked drawer or cabinet. The appellant also admitted that her spouse has taken her car keys on other occasions, while his licence was under suspension, including two prior occasions that also resulted in her vehicle being impounded. In addition, she stated that he has taken her bank card from her purse and used it without her permission.
12The appellant indicated that her spouse did not tell her the vehicle was impounded until she returned from work the following evening. She stated that she did not notice the vehicle was missing when she went to work the next morning or when she returned home from work in the evening. She explained that she normally leaves the vehicle parked on the street and does not typically use it to get to and from work.
13The appellant stated that she did not file a report with the police because the driver was her spouse, not a stranger, and her priority was to maintain “a solid family base” for her autistic daughter. In response to a question on cross-examination, the appellant acknowledged that the best way of describing what happened was that her spouse “took the vehicle without her knowledge or permission”.
14The 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”.
15The appellant, in this case, has not established, on a balance of probabilities, that her spouse “stole” the vehicle, within the meaning of section 50.2(3)(a), when it was impounded. There was no evidence to suggest that driver, at the time of the impoundment, intended to deprive (temporarily or permanently) the vehicle from the appellant. Instead, the evidence was that he took the vehicle to go to a neighbourhood sports bar while the appellant was busy doing something else and did not need the vehicle. In fact, the appellant did not even notice that the vehicle was missing until her spouse told her about the impoundment the following evening when she returned home from work.
16There was also no evidence that the appellant’s spouse “fraudulently or without colour of right” took the vehicle. Based on the evidence, the appellant made it relatively easy for her spouse to take the keys to the vehicle, admitting that they were accessible to him and not kept in a locked drawer or cabinet. She further acknowledged that this was not an isolated occurrence and that he has taken her car keys, as well as other items in her purse, on prior occasions, without her permission. In fact, the appellant acknowledged that this is the third time her vehicle has been impounded because of her spouse’s actions.
17For the above reasons, the evidence does not support a finding that the appellant’s spouse stole her vehicle when it was impounded.
Exceptional Hardship
18Section 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.
19The appellant testified that she works in construction management and takes public transportation to her office in Toronto. During the period of impoundment, she occasionally had to attend job sites outside of Toronto. Normally she would drive to these locations using her vehicle. Instead, while her vehicle was impounded, she sometimes used public transportation to attend these sites. However, she needed to rearrange certain meetings, as it took her much longer to reach these off-site locations using public transportation. On other occasions, where public transportation was not an available or convenient option, she rented a vehicle. She also used a rental vehicle to visit with family over the Christmas holidays. The appellant stated that she did not have to miss work during the period of impoundment.
20The appellant also testified that she has an autistic daughter for whom routine is very important. During the period of impoundment, it was necessary to rearrange or cancel some of her daughter’s extracurricular activities such as swimming and martial arts. It was also necessary to use public transportation to attend two medical appointments. The appellant indicated that her daughter’s schooling was not impacted by the impoundment as she always walks to and from school. The appellant also testified that she and her spouse did their best to “shield” their daughter from the circumstances surrounding and the affects of the impoundment. She indicated that her daughter ultimately proved to be resilient in the face of scheduling adjustments during the period of impoundment.
21The appellant stated that she used her line of credit to pay the impoundment fees. She also gave evidence that her spouse has obtained some painting and construction jobs in the neighbourhood to assist in paying off the line of credit.
22There is no doubt that the appellant and her daughter have been inconvenienced because of the impoundment. However, the evidence does not support exceptional hardship because the appellant had alternative modes of transportation available to her, in particular, public transit and a rental car. 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.
LICENCE APPEAL TRIBUNAL
___________________________
Jacqueline Castel, Member
Released: January 29, 2019