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
Tribunal File Number: 12498/MVIA
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:
Ana DeCarvalho
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Avril A. Farlam, Vice-Chair
Appearances:
For the Appellant: Ana DeCarvalho, Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: January 16, 2020
REASONS FOR DECISION AND ORDER
A. Overview
1A teleconference hearing was held on January 16, 2020 to consider the appellant’s appeal of the impoundment of her 2016 Hyundai (the “vehicle”) on December 7, 2019 for 45 days.
2The appellant submits that the vehicle was stolen by her friend at the time it was detained to be impounded. She also submits that the impoundment will result in exceptional hardship because she needs the vehicle for transportation for herself and her son, and the payment of the impound fees to obtain the vehicle at the end of the impoundment period will cause her financial hardship.
B. 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?
C. CONCLUSION:
4I find that the appellant’s evidence fails to support a finding that the vehicle was stolen at the time of impoundment, or that the impoundment results in exceptional hardship.
D. LAW AND ANALYSIS:
5The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.
6An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on ground (a), that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded and (d), that the impoundment will result in exceptional hardship.
Was the appellant’s vehicle stolen at the time it was impounded?
7I find the appellant’s vehicle was not stolen at the time it was impounded because she gave her implied consent by leaving her vehicle at her home, permitting her friend to stay in her home when the appellant went to work and leaving a spare key to the vehicle hanging by the front door. The burden is on the appellant to prove that her vehicle was stolen on a balance of probabilities. The appellant has not proven that her vehicle was stolen by her friend on a balance of probabilities.
8The meaning of stolen is not defined in the HTA. A vehicle is stolen if it is taken without the owner’s consent. That consent may be express or implied.
9The respondent relies on Auto Zone & Rentals Inc. v. Registrar of Motor Vehicles, 2016 ONLAT 10149, a decision by Linda P. Lamoureux, Executive Chair at paragraph 16:
“I also find that the Tribunal erred in finding that “stolen” within the meaning of s. 50.2 (3) (a) of the HTA amounts to use of property contrary to the owner’s instructions: such a definition broadens the meaning of “stolen” beyond the ordinary meaning of the term and what the language of the legislation can reasonably support. This was a significant error of law.”
10I accept that “stolen” in s. 50.2(3)(a) of the HTA does not mean use of the vehicle contrary to the appellant’s instructions.
11The appellant testified that the driver of the vehicle at the time of impoundment was a friend that she had known for about a month. She had allowed him to stay in her home the weekend before the impoundment and on a few weeknights. On the evening before the impoundment, the appellant allowed him to stay in her home overnight and she left him in the home when she went to work at 6:30 a.m. on December 7, 2019. She took her keys to the vehicle with her but left a spare key to the vehicle hanging by the front door as was her habit. Although she testified that they never discussed it, she thought her friend had a valid driving licence because he usually drove his vehicle to her home. However, on this occasion she had picked him up and brought him to her home because his vehicle had broken down.
12The appellant said that the vehicle was taken without her permission but she admitted that she did not report the vehicle as stolen to the police or use that term in her communication with the police or in her Notice of Appeal. The appellant testified that she didn’t use the term stolen in her Notice of Appeal because it is a harsh word and admitted that it was partly her fault for leaving the key there.
13Constable Hardcastle, the impounding police officer, testified that he saw the appellant’s vehicle idling in front of closed businesses on the morning of December 7, 2019. When he asked the driver what he was doing, the driver said he was waiting for a tire shop to open so he could buy tires for the vehicle. When Constable Hardcastle checked the driver’s driver’s licence and found it was suspended, he impounded the vehicle and the appellant was contacted at her work and advised of the impoundment. He confirmed that the appellant did not report the vehicle as stolen to him and did not use the term stolen or even tell him that the vehicle was driven without her consent. The appellant did not challenge the police officer’s testimony by asking him any questions at the hearing.
14I find that the appellant’s vehicle was not stolen. She did not report it as stolen, use that term in communications with the police or in her Notice of Appeal. Further, if her friend’s intention was to get tires for her vehicle, this is an effort to improve the vehicle which is not consistent with stealing the vehicle. Also the actions of the appellant amount to implied consent because she left her friend at her home, left her vehicle at her home and left the friend with access to a key to her vehicle when she went to work. As such, I find the vehicle was not stolen.
Will the impoundment result in exceptional hardship?
15I find that the impoundment will not result in exceptional hardship because the appellant has alternatives to the impounded vehicle.
16Section 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, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:
…the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.
17If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must consider whether the impoundment will result in:
(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or
(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.
18Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
19I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.
20The appellant testified that she is the single mother of an eight year old child and that she needs the vehicle to pick her child up after school except on the weekends when he is with his father. Her child takes a school bus in the morning to get to school but because he attends an after-school program, she has to pick him up in the afternoon. Since the impoundment, the appellant testified that both she and her son have taken a public bus which is more expensive than driving her vehicle. The appellant said she has also car pooled to her work on Saturdays until about a week before the hearing. The appellant testified that she is still employed full-time at her pre-impoundment work and did not lose her full-time employment. Although the appellant spoke of the inconvenience of taking the bus, this is not a factor which the Tribunal can take into consideration.
21Because the appellant has public bus transit available to her as alternatives to the impounded vehicle, I am unable to consider the appellant’s submissions related to financial or economic loss. The appellant’s preference to drive her own vehicle as opposed to taking the bus is a matter of convenience which I am not permitted to consider in determining whether there is exceptional hardship.
22I find that the appellant has an alternative to the impounded vehicle. Therefore, I find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.
ORDER:
23Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.
Licence Appeal Tribunal
Avril A. Farlam, Vice-Chair
Released: January 29, 2020