Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2020-01-30

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 for driving while suspended

Between:

Stacey Bourque Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

Panel: Joanne E. Foot, Member

Appearances:

For the Appellant: Self-Represented

For the Respondent: Nora Challis, Agent

Place and date of hearing:

By Teleconference

December 9, 2019

REASONS FOR DECISION

A. Overview

1A teleconference hearing was held on December 9, 2019 to consider the appellant’s appeal of the 45-day impoundment of her 2014 Honda (the “vehicle”). The vehicle was impounded on November 6, 2019 and is due to be released on December 21, 2019.

B. ISSUE

2The issues to be determined are whether:

a. the vehicle was stolen at the time it was impounded; and

b. the impoundment results in exceptional hardship to the appellant.

C. CONCLUSION

3On the evidence before me at the hearing, I find that under s. 50.2(3)(a) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) the vehicle was stolen.

D. LAW AND ANALYSIS

4The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Act may, pursuant to s. 50.2, appeal the impoundment only on the grounds set out in s. 50.2(3) of the Act. In this case, the appellant relies on paragraph (a), that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded, and paragraph (d), that the impoundment of the vehicle is causing excessive hardship.

5If I find that either of the grounds of appeal have been satisfied, I may, pursuant to s. 50.2(5) of the Act, order the Registrar to release the motor vehicle. The appellant bears the burden of proving that she falls within one of the grounds of appeal set out in s. 50.2(3) of the Act.

6The facts of the impoundment are not in dispute. At the time of the impoundment, the vehicle was being driven by Mr. Adam Ryan, the live-in boyfriend of the appellant. The appellant indicated that she was asleep when Mr. Ryan took the vehicle, that she was aware that Mr. Ryan’s driver’s licence had been suspended following conviction for a drinking and driving offence, that Mr. Ryan had never driven the vehicle in the past and that she had not consented to his driving the vehicle on this occasion. The appellant was awoken by a police officer at her door informing her that the vehicle had been impounded.

Stolen

7The meaning of stolen is not defined in the Act. 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.

8The determination of whether a car has been stolen is highly dependent upon the facts of the situation. There is no requirement that the car be reported stolen, or even that the denial of permission be explicit, but these are factors that may support a conclusion of stolen. At the very least, the Tribunal must find that the appellant did not implicitly consent or reasonably expect to have the vehicle taken, and takes into consideration whether the appellant took reasonable steps to ensure that this would not happen.

9The appellant testified that Mr. Ryan had never driven the vehicle before, that she had never discussed with him that he was not to drive the vehicle and that, to her knowledge, he had never taken the vehicle without her consent on any other occasion. When questioned by the respondent, the appellant testified that Mr. Ryan took the car keys from her purse in her room.

10I accept the appellant’s testimony that the vehicle was taken without her knowledge and that she did not consent, implicitly or expressly, to Mr. Ryan driving the vehicle. The appellant was told that Mr. Ryan had taken the car to go to buy a snack, showing intent to deprive the appellant of the vehicle on a temporary basis as contemplated by the Marshall case above. The appellant testified that it was her habit to leave the keys to the car in her purse and that Mr. Ryan typically had access to her purse. Given that Mr. Ryan had not made past requests to drive the vehicle or made past attempts to take the keys from the appellant’s purse for the purpose of driving the vehicle, I find that the appellant acted reasonably in not taking further steps to ensure that the Mr. Ryan would be unable to access the keys to the vehicle.

11As a result, I find that the vehicle was stolen within the meaning of s. 50.2(3)(a) of the Act.

Exceptional Hardship

12Having found the vehicle to be stolen, there is no need to consider the ground of exceptional hardship within s. 50.2(3)(d) of the Act.

E. ORDER

13For the reasons set out above, pursuant to subsection 50.2(5) of the Act, I order the Registrar to release the appellant’s motor vehicle from impoundment.