Appeal Under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c.H.8 from an impoundment of a motor vehicle pursuant to section 55.1 of the Act for driving while suspended
Between:
Robert Dallas
Appellant
and
Registrar of Motor Vehicles
Respondent
Decision and Order
ADJUDICATOR:
Katherine Livingstone, Member
APPEARANCES:
For the Appellant:
Robert Dallas
For the Respondent:
Sanjay Kapur, Agent
Hearing Date:
By teleconference on April 14, 2020
Overview
1The appellant, Robert Dallas, appeals the 45-day impoundment of his motor vehicle on two grounds: the vehicle was taken by his stepson, Tyler Burden, without his permission and therefore stolen, and on the basis of exceptional hardship.
2The vehicle was impounded on January 29, 2020, because it was driven by his stepson, Tyler Burden, whose licence was under suspension. The impoundment period ended on March 14, 2020. The appellant has retrieved his vehicle after paying approximately $2700.00 in impoundment fees.
3The appellant filed, by fax, a Notice of Appeal on February 7, 2020. However, it was not received on that date due to technical issues at the Tribunal. The appellant re-filed his Notice of Appeal on March 4, 2020. At the case conference the Registrar’s agent, Mr. Kapur, confirmed the Registrar was satisfied the appellant filed the appeal within the prescribed appeal period.
4The hearing proceeded by teleconference on April 14, 2020.
Issues
5The issues to be determined are whether the appellant has established that the vehicle was stolen within definition of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”), or that the impoundment resulted in exceptional hardship.
Result
6I find in the circumstances before me the appellant’s vehicle was stolen within the meaning of section 50.2 (3) (a) of the HTA. Having found it was stolen at the time of impoundment, it is not necessary for me to consider the ground of exceptional hardship.
Evidence
7The appellant, his wife and stepson testified at the hearing for the appellant. The respondent called the police officer who impounded the vehicle. The respondent also filed documentation outlining the basis for the impoundment.
8The appellant did not take issue with the fact his step-son’s licence was suspended at the time he was stopped by the police.
9The appellant testified he co-owns the vehicle with his wife, although his wife did not have a driver’s licence and never drove. He is the only one insured to drive the vehicle.
10His stepson, Tyler Burden, is 30 years old and lives with him, his wife and other family members.
11The appellant said he knew, prior to January 29, 2020, his stepson’s licence was suspended and he had told him explicitly in the past that he was not to drive the vehicle. Aside from the date of the impoundment, the appellant was not aware of any other occasions when his stepson drove the car.
12The appellant testified that on January 29, 2020, he was asleep in his bedroom and did not know his stepson had taken the car. The appellant said he contacted the police on January 30, 2020, the day after the impoundment, to inquire about reporting the car stolen. After a couple of days, an officer came to the house but did not take a report as his supervisor told him not to.
13The appellant’s wife testified she was working when her son called to say he had been stopped by police. She said she spoke with the officer but did not tell him the car was stolen as “it was upsetting to say your son stole something”.
14The appellant’s stepson, Mr. Burden, testified he had taken the car without permission while the appellant was sleeping. Mr. Burden said he wanted the appellant to drive him to pick up his methadone, but he could not wake him up. Mr. Burden took the keys hanging by the front door and left in the car. He was stopped for speeding and the car was impounded.
15Mr. Burden said he and the appellant had spoken previously about Mr. Burden driving the car and the appellant told him he could not drive the car while he was a suspended driver. Mr. Burden testified he took the car out of anger and that he had never taken it before. His plan was to get his methadone and return home and “act like nothing happened”.
16The police officer confirmed he pulled Mr. Burden over for speeding and after confirming his licence was suspended, arranged to have the car towed. He said the stepson said he was out getting snacks. The officer said he spoke to the appellant’s wife on the phone before the car was towed and she never mentioned the car was stolen or taken without permission. He said Mr. Burden did tell him he took the car while the appellant was sleeping.
Law and Analysis
17The intent of the HTA is to promote public safety by preventing unlicenced drivers from operating motor vehicles. Pursuant to s. 55.1 of the HTA, a vehicle shall be detained and impounded where the licence of the person driving the vehicle is under suspension.
18The owner of a vehicle that has been impounded may appeal the impoundment pursuant to s.50.2 of the HTA and request that the Tribunal order the Registrar release the vehicle. In this case the vehicle has already been released. However, if I find one or more of the grounds of appeal have been met, as a practical matter, the respondent would be required to reimburse the appellant for the impound fees for the 45 day period of impoundment.
19The possible grounds for appeal are set out in s.50.2(3) of the HTA. The appellant relies upon the following two grounds:
(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;
(b) that the impoundment will result in exceptional hardship.
20The appellant has onus to establish, on the balance of probabilities, that one of these grounds has been met.
21The HTA does not define the term “stolen”.
22In the Criminal Code of Canada, “to steal” is defined as “to commit theft”. The offence of theft is then described in s. 322 as:
322(1) Every one 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
(a) 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:
23In Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745, the Divisional Court held the Tribunal, in the impoundment context, 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.
24The test for whether a vehicle is stolen is highly fact specific. There is no requirement the car be reported stolen to the police, but this is one of the factors that can be considered in concluding that it was stolen. At the very least, the Tribunal must find that the appellant did not implicitly consent or reasonably expect the vehicle to be taken.
25In the case before me I am satisfied the appellant did not give Mr. Burden consent to drive the car. The appellant’s testimony was straight forward and credible with respect to his prior discussions with Mr. Burden about not driving the car. The appellant presented as a “force to be reckoned” with and I have no doubt he was possessive of his vehicle and who drove it.
26I also accept the appellant’s testimony that he was asleep when the car was taken. This evidence is buttressed by the police officer who said Mr. Burden told him he took the car while the appellant was asleep.
27Additionally, the appellant did make efforts to report the vehicle stolen in the days after the impoundment. However his efforts, for whatever reasons, were thwarted by the police.
28The respondent pointed to the appellant’s wife’s refusal to tell the officer the vehicle was stolen as evidence it was not stolen within the meaning of the HTA. However, I found her evidence in this regard quite candid and accept her embarrassment prevented her from telling the officer.
29The respondent urged me to find the facts of this case do not support a finding the car was stolen within the definition of the HTA. He said the evidence at its highest indicated the car was taken without permission. He pointed to the Notice of Appeal where the appellant said the car was taken without permission.
30While it is true that the Notice of Appeal refers to Mr. Burden taking the car without permission rather than using the word “stolen”, I note the appellant referenced section 50.2(3) (a) when he used the phrase “taken without permission”. Thus, I am satisfied the appellant’s Notice of Appeal asserts that the car was stolen.
31The respondent also argued that in all likelihood this is not the first time Mr. Burden has taken the car. He said Mr. Burden was not stealing the car, he was just out to get snacks and then return home. I find that this assertion is speculative as there was simply no evidence before me that Mr. Burden had driven the car before.
32The respondent referred to several decisions of the Tribunal where an appeal based on the vehicle being stolen has not been successful. Specifically, the respondent relied on Auto Zone& Rentals Inc. v Registrar of Motor Vehicles, 2016 ONLAT 10149, Sandra Downard v. Registrar of Motor Vehicles, 2020 ONLAT MVIA 12496, Cheryl Campbell v. Registrar of Motor Vehicles, 2020 ONLAT 12533 MVIA and Edward Lukasiewicz v. Registrar of Motor Vehicles, 2020 ONLAT MVIA12620.
33Having reviewed these cases I find they differ from the factual underpinnings of the case before me. In two of the cases there was evidence the appellant had been aware of the suspended driver using the vehicle before and had not taken steps to ensure the keys were kept from the suspended driver. In another case the appellant had given the keys to the suspended driver before the appellant left the country and asked him to occasionally to “turn over” the engine periodically but not to drive the car. The fourth case involved a rental car company and the facts differed significantly from the ones at hand.
34After a review of all of the evidence I am satisfied Mr. Burden intended to temporarily deprive the appellant of the use of his vehicle and that his actions fall within s. 50.2 (3) (a) of the HTA. I find the appellant has demonstrated on the balance of probabilities his vehicle was stolen.
Order
35Pursuant to subsection 50.2 (5) of the Highway Traffic Act, the Appeal is granted and the respondent is ordered to release the appellant’s motor vehicle.
LICENCE APPEAL TRIBUNAL
_______________________
Katherine Livingstone, Member
Released: May 25, 2020