File Number: 12620/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:
Edward Lukasiewicz
Appellant
And
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Jacqueline Castel, Member
APPEARANCES:
For the Appellant: Edward Lukasiewicz, Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: March 31, 2020
REASONS FOR DECISION AND ORDER
OVERVIEW:
1A teleconference hearing was held on March 31, 2020 to consider the appellant’s appeal of the 45 day impoundment of his 2006 Chevrolet, LTZ (the “vehicle”). The vehicle was impounded on November 28, 2019 because it was being driven by a person whose licence was under suspension. The vehicle was eligible for release on January 12, 2020 but remains in the impound facility.
2The appellant is requesting that the Tribunal make a finding that the impoundment should be set aside and order the Registrar of Motor Vehicles (the “Registrar”) to release the vehicle and pay the impound fees for the 45 day period. The appellant has reached an agreement with the impound facility whereby it will waive the fees for the days the vehicle was in the facility in excess of the 45 day period.
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:
4On 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:
5Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the Act, the officer is required to detain and impound the vehicle. Section 55.1 sets out the scope of the authority and the duration of the period of impoundment. If there has been no previous impoundment in the last two years, the impound period is 45 days.
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.
7There 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 that the vehicle was stolen at the time of the impoundment and that the impoundment resulted in exceptional hardship.
STOLEN
8Section 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.
9The term “stolen” is not defined under the Act. In Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745, the Divisional Court held that 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.
10In the absence of a definition of stolen 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;”
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 he was in Mexico on an extended holiday when the vehicle was impounded on November 28, 2019. He stated that he was in Mexico from August 22, 2019 to February 18, 2020 and only learned of the impoundment upon his return from Mexico.
13The appellant explained that he had arranged with a friend, Ville Ounapuu (“VO”), to store the vehicle at VO’s property while he was in Mexico. He testified that he left the vehicle, including the keys to the vehicle, with VO a few days before his departure for Mexico, with instructions to “turn over” the engine periodically, but not to drive the vehicle. He also stated that he cancelled his automobile insurance after dropping the vehicle off at VO’s property. According to the appellant’s testimony, he told VO that he would be cancelling the insurance on the vehicle. The appellant asserted that he was not aware that VO’s licence was under suspension until he reviewed his Extended Driver Record Search for Criminal Code Convictions, produced as part of the respondent’s disclosure a few days prior to this hearing.
14The appellant testified that a charge has been laid against VO for driving the vehicle without his consent, and the matter is proceeding to Court on May 12, 2020.
15On the evidence, I am satisfied that VO did not have the appellant’s permission to drive his vehicle while he was out of the country, including on the date of the impoundment. However, the definition of stolen, for the purpose of section 50.2(3)(a) of the Act, is more narrow than to use or drive a vehicle contrary to the owner’s instructions or without the owner’s express or implied permission. The perpetrator must intend to deprive the owner of the vehicle, whether permanently or temporarily. VO could not have intended to deprive the appellant of the vehicle temporarily since the appellant was out of the country and did not need the vehicle while he was in Mexico. There was no evidence that VO intended to deprive the appellant of the vehicle permanently.
16There was also no evidence that VO “fraudulently” or “without colour of right” took the vehicle. The appellant left the vehicle on VO’s property, and entrusted him with the keys to the vehicle, while he was out of the country. The appellant took a risk in leaving his vehicle with someone without doing any due diligence into his background. The Extended Driver Record Search for Criminal Convictions reveals that VO has had a number of driver’s licence suspensions, including one for driving a vehicle without insurance.
17For the above reasons, the evidence does not support a finding that the vehicle was stolen, within the meaning of section 50.2(3)(a) of the Act, when it was impounded.
Exceptional Hardship
18Section 50.2(3)(d) of the Act provides that a vehicle impoundment may be appealed where “the impoundment will result in exceptional hardship.”
19The appellant testified that he started a new job as business manager of a used car dealership on March 9, 2020. He stated that his hardship stems from the fact that he must use public transportation to get to and from work, and given the COVID-19 pandemic, this puts him at greater risk of contracting the virus. He also stated that he has underlying health issues which put him at a greater risk of developing complications if he contracts the virus. He also stated that he cannot afford to take taxis or rent a vehicle.
20In order for the defense of exceptional hardship to stand, among other things, the hardship must occur during the period of impoundment under s. 55.1 of the Act, in this case the 45 day impoundment from November 28, 2019 to January 12, 2020. The appellant acknowledged, in response to a question from the respondent’s representative, that he was in Mexico and had no need for his vehicle during the 45 day period of impoundment. The appellant only started to be inconvenienced on his return from Mexico, in particular when he began a new job on March 9, 2020 and needed to use public transportation to get to and from his place of employment. By March 9, 2020, the 45 day period of impoundment had elapsed.
21The evidence does not support exceptional hardship during the 45 day period of impoundment.
ORDER:
22Pursuant to subsection 50.2(5) of the HTA, I deny the appeal and confirm the impoundment order.
LICENCE APPEAL TRIBUNAL
___________________________
Jacqueline Castel
Member
Released: April 06, 2020