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: 2020-05-04

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:

Wide Area Network Communications Corp. Appellant

• and -

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Stephen Scharbach, Member

Appearances: For the Appellant: Kevin Brauti, Officer & Director For the Respondent: Stella Vellocci, Agent

Place and date of hearing: Teleconference Hearing on April 23, 2020

Overview

1Wide Area Network Communications Corp. ("Appellant"), appeals a decision of the Registrar of Motor Vehicles ("Registrar") to impound one of its service vehicles, a Ford SRW, on March 25, 2020 for 45 days after it was discovered being driven by one of the Appellant's employees whose driver's licence was under suspension.

2The Appellant appeals on two grounds:

• the motor vehicle was stolen at the time it was impounded,
• the Appellant exercised due diligence in attempting to determine that the driver's licence of the employee who drove the vehicle when it was detained was not then under suspension.

ISSUE

3Should the Tribunal order the Registrar to release the Appellant's vehicle either because the vehicle was stolen at the time it was impounded or the Appellant exercised due diligence in attempting to determine that the licence of the driver was not then under suspension?

DECISION

4The impoundment is confirmed – the vehicle was not stolen at the time it was detained and the Appellant did not exercise due diligence in attempting to determine that the driver's licence was not under suspension.

THE LAW

5Under section 55.1(1) of the Highway Traffic Act ("Act"), a police officer is required to impound a motor vehicle if the officer is satisfied that it was being driven by a person whose driver's licence is under suspension.

6The owner may appeal the impoundment to this Tribunal and, after holding a hearing, the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle.

7Section 50.2(3) of the Act specifies that there are only four permissible grounds on which an impoundment can be appealed. The Appellant relies upon two of those grounds – that the vehicle was stolen at the time it was detained and the Appellant exercised due diligence in attempting to determine that the driver's licence of the employee who drove the vehicle when it was detained was not then under suspension.

FACTS

8The Appellant is in the business of servicing telecommunications equipment necessary for the transmission of cell phone service. Its service is normally provided by 4 person crews who travel to required locations in company owned service vehicles.

9According to Kevin Brauti, owner of the Appellant, each crew collectively decides who will drive the vehicle after considering the location of the crew members' residence and where they can be conveniently picked up and dropped off.

10Once the driver is determined, that driver will be placed on the Appellant's insurance policy. Only employees registered with the insurance company are allowed to drive service vehicles.

11In this case MB, one of the Appellant's employees, was the foreman of a crew but not its designated driver. MB was hired by the Appellant in July 2019. A few months later in October 2019, MB's driver's licence was suspended for one year as a result of an impaired driving offence. The Appellant was unaware of the suspension.

12On March 25, 2020 MB was caught driving the Appellant's service vehicle to a work site and the vehicle was impounded. Mr. Brauti testified that MB had, without the Appellant's knowledge or authorisation, taken the vehicle home the day before in order to clean and organise it. His plan was to drive the vehicle the next morning to the home of the crew member who ordinarily drove. However, an unscheduled service call came in, the regular driver was unavailable, and MB took it upon himself to drive the vehicle to the work site.

WAS THE VEHICLE STOLEN WHEN IT WAS DETAINED?

13The Appellant argues that MB took the vehicle without the consent or authorisation of the Appellant and in that sense, it was "stolen" at the time it was detained.

14I do not agree. The Act and the relevant regulations do not define the term "stolen". However, some guidance can be drawn from the Criminal Code of Canada which provides that:

"Steal" means to commit theft.¹

"Everyone commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or the use of another person, anything … with intent,

(a) to deprive temporarily or absolutely, the owner of it, or a person who has a special property or interest in it…"²

15In my opinion, a vehicle is "stolen" when it is taken without the owner's consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.

16While it is true that MB was not specifically authorised by the Appellant to drive the vehicle and apparently violated the Appellant's internal policy by doing so, the facts indicate that MB drove the vehicle to attend a service call on behalf of the Appellant. He was not using the vehicle for his own purpose and thereby depriving the Appellant of it, he was using it to attend to the Appellant's business.

17I conclude that MB did not convert the vehicle to his own use with an intent to deprive to the Appellant of the vehicle and therefore it was not stolen at the time it was detained.

18This conclusion is supported by the fact that the Appellant did not attempt to pursue theft charges against the Appellant and instead counselled him for unauthorised use of the vehicle and breach of company policy.

DUE DILIGENCE

19Section 50.2 of the Act provides that one ground upon which an owner may appeal an impoundment is that:

"the owner of the motor vehicle exercised due diligence in attempting to determine that the driver's licence of the driver of the motor vehicle at the time it was detained …was not then under suspension."

20The Appellant points out that when it hired MB in July 2019, MB completed an "Employee Information Sheet" in which MB supplied the Appellant with his personal data including his name, address, driver's licence number, contact information, and emergency contact information. The Appellant also provided a photo of his (then) valid driver's licence. The Appellant argues that it thereby exercised due diligence in attempting to determine that MB had a licence that was not under suspension.

21In my view, this ground of appeal must fail. Mr. Brauti testified that every employee is asked to complete the Information Sheet at the time they are hired - whether they function as a driver or not. The Appellant asks for the information primarily for administrative purposes and not to verify the current validity of driver's licences.

22The evidence indicated that the Appellant does not verify the validity of employee driver's licences upon hiring, or on a periodic basis afterwards, although Mr. Brauti thought that the vehicle insurer does so when it is notified that an employee is designated as a driver.

23According to the Registrar's agent, anyone can check the validity of a driver's licence on the Ministry of Transportation website at no charge. There is no evidence that the Appellant ever checked the website or took any other steps to determine whether MB's driver's licence was suspended.

24That is not surprising given that MB was not authorised to drive the vehicle. Nevertheless, in the present circumstances there is no basis to support the conclusion that the Appellant exercised due diligence in attempting to determine whether MB's licence was not under suspension at the time it was impounded.

25The impoundment of the Appellant's motor vehicle is confirmed. However, the Appellant is not left entirely without a remedy. Section 55.1(27) of the Act gives the owner of an impounded vehicle the right to recover losses (which may include the cost of the impoundment itself) from the person whose suspended driving resulted in the impoundment. That section states:

The owner of a motor vehicle that is impounded under this section may bring an action against the driver of the motor vehicle at the time the motor vehicle was detained under this section to recover any cost or other losses incurred by the owner in connection with the impoundment.

ORDER

26Pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the appellant's motor vehicle.

Footnotes

1. 1Criminal Code, s. 2
2. 2Criminal Code, s. 322(1)(a)