Date: 2020-07-21

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:

Ulyana Krupynk

Appellant

• and -

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Stephen Scharbach, Member

APPEARANCES:

For the Appellant: Roman Krupynk, Representative

For the Respondent: Stella Velocci, Agent

Heard by Teleconference: July 7, 2020

Overview

1Ms. Ulyana Krupynk (“appellant”) appeals the impoundment of her 2020 Mazda 3 (“vehicle”). It was impounded on May 31, 2020 for 45 days when it was discovered being driven by P.D., a family friend, in violation of a condition on his driver’s licence that prohibited him from driving a vehicle not equipped with an ignition interlock device.

2The appellant appeals the impoundment on the following grounds:

i) the vehicle was stolen at the time it was impounded,

ii) the appellant exercised due diligence in attempting to determine that P.D.’s driver’s licence was not subject to the ignition interlock device condition.

iii) the impoundment will result in exceptional hardship.

DECISION

3The Registrar is ordered to release the appellant’s vehicle on the basis of exceptional hardship.

4With respect to the other two grounds for appeal, the facts presented were insufficient to establish that the vehicle was stolen or that the appellant exercised due diligence.

THE LAW

5Under the Highway Traffic Act, R.S.O. 1990, c. H.8, (“Act”), a police officer “shall” impound a motor vehicle for 45 days if the officer is satisfied that it was being driven in contravention of a driver’s licence condition prohibiting the driver from operating a motor vehicle unless it is equipped with an ignition interlock device.

6The owner of an impounded vehicle may appeal the impoundment to this Tribunal, and on an appeal, the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle.

7The Act allows only five grounds on which an owner may appeal, and they include the three grounds which the appellant relies on in this case. The onus is on the appellant to establish the grounds for appeal on a balance of probabilities.

8With respect to the ground of exceptional hardship, section 10 of Ontario Regulation 631/98 (the “Regulation”) provides that in determining whether an impoundment will result in exceptional hardship, the Tribunal must consider whether an alternative to the impounded vehicle is available. If no alternative is available, the Tribunal is required to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle.

9In order to show that no alternative to the impounded vehicle is available, the Regulation states that the owner must demonstrate that every other reasonable option has been considered, including using another vehicle or making arrangements to do without the vehicle during the impound period.

THE IMPOUNDMENT

10The appellant lives in Belle River, a small community in southwestern Ontario, about 300 km from Toronto. She and her husband and two children, aged 8 and 10, moved there from Toronto within the past year.

11The appellant’s husband, Roman Krupynk, still works in Toronto 4-5 days per week and returns to Belle River 2-3 days per week. He travels to and from Toronto in his vehicle.

12The impounded vehicle is the appellant’s vehicle and is the primary means of transportation for her and her children, especially when Mr. Krupynk is in Toronto.

13According to the appellant, during the evening of May 30, 2020, P.D., a family friend, asked the appellant’s permission to borrow her vehicle to drive to a nearby store. She asked P.D. to show her his driver’s licence to confirm he had a valid licence. According to the appellant, she viewed P.D.’s licence, noted it was apparently valid, and did not notice any indication on the licence itself that it was subject to any condition.

14The appellant testified that she gave P.D. her permission to use her vehicle to go to the store but for unspecified reasons he did not use the vehicle at that time.

15At 5:30 a.m. the next morning, police discovered P.D. driving the appellant’s vehicle about a kilometer from her home.

16According to the appellant, P.D. took the vehicle while she was asleep and without her knowledge or permission. She states that while she consented to him using her vehicle during the evening of May 30, 2020 to go to the store, she did not consent to him using it in the early morning of May 31, 2020. The appellant testified that the keys to the vehicle were kept in a chest of drawers in the hallway of the house, and P.D. must have taken them from that location without the appellant’s permission.

ANALYSIS

(a) Was the Vehicle Stolen?

17The onus is on the appellant to provide clear and credible evidence that support her claim that P.D. stole her vehicle in the early morning of May 31, 2020. In this case that onus has not been met and I am unable to conclude that the vehicle was stolen.

18The Act and the relevant regulations do not define the term “stolen”. However, 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

19Based on that, it is my view that a vehicle is “stolen” when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, either permanently or temporarily.

20In this case, the appellant testified that she gave P.D. permission to use her vehicle during the evening of May 30 to go a store and P.D. was caught driving the vehicle at 5:30 a.m. the next morning. These circumstances raise the distinct possibility that P.D. had, or was under the impression that he had, the appellant’s consent to use the vehicle.

21The appellant’s claim that the vehicle was stolen would have been more convincing if P.D. had testified or provided a written statement confirming he took the vehicle without the appellant’s consent. P.D. did not testify and no explanation for his absence was provided.

22I note that in the one Tribunal impoundment case referred to me by the appellant where the Tribunal found the vehicle was stolen, in addition to the owner’s testimony, the suspended driver testified that he took the vehicle without permission while the owner was sleeping. That was also partially confirmed by the police officer who said that the driver told the officer that he took the car while the owner was sleeping.

23In this case the circumstances raise the real possibility that the driver may have had the appellant’s consent. Without confirmation from P.D., or some explanation as to why his evidence was unavailable, the evidence presented is insufficient for me to conclude on a balance of probabilities that the vehicle was stolen.

(b) Due Diligence

24The appellant argues that she exercised due diligence in attempting to determine that P.D.’s licence was valid and not subject to a condition requiring an ignition interlock device. Based on the evidence presented, I cannot conclude that the appellant exercised due diligence.

25Again, the onus is on the appellant to establish on clear, credible evidence that she took all reasonably expected steps to confirm that P.D.’s licence was valid and not subject to a condition prohibiting him from driving her car. The appellant testified that she asked P.D. to show her his licence before giving him permission to use her vehicle. The licence appeared to be valid and she did not note any conditions indicated on the face of the licence itself.

26According to the Registrar’s representative, the condition is displayed on the face of the driver’s licence. Unfortunately, neither party provided a copy of P.D.’s actual driver’s licence which would have cleared up this issue.

27However, P.D.’s MTO driving record was placed into evidence. It clearly indicates that P.D.’s licence is subject to a condition, in place since July 2015, requiring an ignition interlock device. Although the appellant states that she didn’t note any condition on P.D.’s licence, the MTO driving record raises the possibility that the condition was displayed on the licence but not noticed by the appellant.

28In these circumstances, I cannot conclude that the appellant has established on clear credible evidence that she checked P.D.’s licence and it did not display the condition. In other words, the appellant has not established on a balance of probabilities that she exercised due diligence.

(c) Exceptional Hardship

29I conclude that the appellant has met the onus of establishing that the impoundment will result in exceptional hardship.

30According to the Regulation, in determining whether the impoundment will result in exceptional hardship, the Tribunal “shall consider” whether there is any alternative to the impounded vehicle and, if no alternative is available, whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle.

31In order to show that no alternative is available, the appellant must demonstrate that every reasonable alternative has been inquired into and considered that could eliminate or adequately mitigate any threat including using another vehicle and making arrangements to do without a vehicle during the impound period.

32In this case the appellant only has access to one vehicle – the impounded vehicle – 4-5 days per week. The impounded vehicle is the primary means of transportation for the appellant and her two small children. The appellant moved from Toronto to Belle River during the past year and her friends and family are all in Toronto. According to the appellant, there is no-one nearby that she can rely upon to provide her with regular transportation and she requires a vehicle for getting groceries and household essentials, doctor’s appointments, and the children’s recreational activities.

33The small community in which she lives does not have public transportation. It is possible to use a taxi service to access nearby grocery stores and Windsor, Ontario (35-40 minutes away). However, according to the appellant taxis are prohibitively expensive. According to Notices of Assessment filed, the appellant’s and her husband’s net family income for 2019 was less than $47,000.

34The most significant consideration is the fact that the appellant’s dentist and her children’s orthodontist are in Mississauga and the current pandemic effectively prevents her from attending appointments without a private vehicle. The appellant has tried to find local professionals but, according to the appellant, none are taking new patients due to the pandemic.

35As a result, in order to get treatment for herself and her children, she must travel to Toronto. Her husband cannot drive her to and from Toronto because he is working in Toronto during the week on a variable schedule. Trains and buses are still operating between Windsor and Toronto but, understandably, the appellant does not feel safe travelling during the pandemic on public transportation with her two small children for several hours each way.

36The appellant produced evidence indicating that the impoundment has resulted in a threat to her health and safety. In a letter dated July 3, 2020, Dr S., the appellant’s dentist in Etobicoke, Ontario, stated that she was contacted by the appellant on June 3, 2020 about a filling that had fallen out. The dentist confirmed via visual inspection over the phone that the filling needed to be replaced as soon as possible and offered the appellant an emergency appointment on June 8, 2020. According to the dentist, the appellant could not attend that appointment due to difficulties in arranging transportation and, because of the time that has elapsed without treatment, the tooth will have to be surgically removed.

37I conclude that because of the unusual circumstances caused by the pandemic, the appellant has no reasonable transportation alternative that would allow her to attend her dentist in Etobicoke or her children’s orthodontist in Mississauga. I accept the appellant’s evidence that local professionals are not currently available.

38The evidence establishes on a balance of probabilities that the impoundment has resulted in a threat to the appellant’s health and safety. I therefore conclude that the impoundment will result in exceptional hardship to the appellant and that the impoundment should be set aside on that basis.

ORDER

39Pursuant to s.50.2(5) of the Highway Traffic Act, I order the Registrar to release the appellant’s vehicle.

Footnotes

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