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: 2020-08-14

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:

Opal M. Sterling Appellant

And

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Stephen Scharbach, Member

Appearances: For the Appellant: Farouk Jubrattan, Paralegal For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: June 11, 2020

Overview

1Ms. Opal M. Sterling (“appellant”) appeals the impoundment of her 2017 Acura (“vehicle”).

2The vehicle was impounded on April 23, 2020 for 45 days when police discovered it being driven by the appellant’s son-in-law, whose driver’s licence was under suspension resulting from a Criminal Code conviction.

3The appellant appealed on the basis that the impoundment will result in exceptional hardship. The Tribunal also considered whether the vehicle was stolen at the time it was impounded.

DECISION

4The impoundment is confirmed. The available facts were insufficient to prove that the vehicle was stolen, or that the impoundment will result in exceptional hardship within the meaning of the Highway Traffic Act (“Act”) and Ontario Regulation 631/98 (“Regulation”).

PRELIMINARY MATTER

5The hearing commenced on June 11, 2020. After reviewing the evidence and applicable law, I directed that the hearing be reconvened to give the parties an opportunity to call additional evidence and/or make submissions solely with respect to the issue of whether the vehicle was stolen at the time it was impounded. That decision, and the reasons for it, are set out in my Interim Order released on June 23, 2020.

6The hearing was reconvened by teleconference on August 5, 2020. Both parties were provided with notice of the time, date and call-in details of the hearing.

7The appellant did not attend, and no communication was received from the appellant or her representative about their intentions. The Notice of Continuing Hearing that was sent to the parties states, “If you do not attend the hearing, the Tribunal may make a decision in your absence and you will not be entitled to any further notice in the proceeding.”

8The hearing proceeded in the appellant’s absence and the Registrar’s representative provided additional submissions concerning whether the vehicle was stolen.

THE LAW

9Under the Act, a police officer “shall” impound a motor vehicle for 45 days if the officer is satisfied that it was being driven by a person whose licence is under suspension, including suspensions resulting from Criminal Code convictions.

10The owner of an impounded vehicle may appeal the impoundment to this Tribunal. After holding a hearing, the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle.

11The Act allows only a few limited grounds on which an owner may appeal, and the onus is on the appellant to establish one or more of those grounds.

12Two of those permissible grounds are:

• “that the motor vehicle …was stolen at the time it was …impounded”
• “that the impoundment will result in exceptional hardship.”¹

13Section 10 of 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 and, 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.

14The Regulation also prohibits the Tribunal from considering financial loss in determining whether an impoundment will result in exceptional hardship unless “…the owner demonstrates that … no alternative to the impounded vehicle is available …”

15In 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.

APPELLANT’S CIRCUMSTANCES

16The appellant lives in Mississauga, Ontario and is employed at a distribution center.

17According to the appellant, on April 23, 2020 she was awakened at 3:00 a.m. by a phone call from F.O., her son-in-law, who told her that he had taken her vehicle and it had been impounded. She learned the next day that the vehicle was impounded for 45 days after it was discovered by police being driven by F.O whose licence was suspended. According to the appellant, F.O. had never used, taken, or asked to borrow her car in the past, and she was unaware that his licence was under suspension.

18The appellant’s vehicle was released 45 days later on June 8, 2020. The appellant does not own another vehicle and needed a vehicle to get to work. She had to rent a replacement vehicle at a cost of approximately $1,000. In addition, the impound facility charged her $6,800 in fees before it would release her vehicle. In total, the impoundment has caused her a financial loss of about $7,800. According to the appellant, there is little chance that she will recover that loss from F.O.

19The appellant states that her financial loss has been aggravated by the present Covid-19 pandemic. Her work hours have been reduced and her income decreased. She is presently supporting her daughter and her grand daughter who both reside with her. Her daughter recently completed her education but has been unable to find employment due to the pandemic. The appellant pays all household expenses including rent, groceries, utilities and car payments.

20The appellant testified that her savings paid for about half of the impoundment cost and she had to borrow the rest. Paying off the borrowed amount will be prolonged and difficult due to her reduced income and her need to support her daughter and granddaughter. According to the appellant, the $7800 impoundment cost imposed on her has caused exceptional hardship especially in these circumstances where the car was impounded through no fault of her own.

EXCEPTIONAL HARDSHIP

21I conclude that the impoundment will not result in exceptional hardship within the meaning of the Act and Regulation.

22I have no doubt that the appellant has suffered a significant financial loss as a result of the impoundment, and I agree with the appellant that the impoundment cost of $6800 appears to be excessive. I also acknowledge that she has been made to bear the cost of the impoundment even though the vehicle was impounded after being driven by a suspended driver without her knowledge or consent. Although the Act provides that the appellant may recover her losses from the driver by suing him, the appellant does not regard that as viable since the driver is her son-in law.

23However, in determining whether exceptional hardship will result from an impoundment, the Regulation specifically prohibits the Tribunal from considering financial loss unless “…the owner demonstrates that…no alternative to the impounded vehicle is available.”

24In this case an alternative to the impounded vehicle is available - the appellant has been able to rent a replacement vehicle. Although the cost of the rental in addition to the cost of the impoundment itself, is difficult for the appellant to bear, the appellant has been able to secure an alternative vehicle.

25Given the Regulation, I am precluded from considering the appellant’s financial loss in determining whether the impoundment has resulted in exceptional hardship.

WAS THE VEHICLE STOLEN?

26I conclude that the appellant’s vehicle was not stolen within the meaning of the Act and Regulation.

27The evidence is that F.O. took the appellant’s vehicle while the appellant was asleep without her knowledge or permission.

28The Act provides that an owner may appeal an impoundment on the basis that the was “stolen”. That term is not defined in the Act or Regulation. However, it seems clear that the legislature intended it to mean something different than “taken without consent”. There are at least two provisions in the Act which apply in circumstances where the vehicle was taken “without the owner’s consent” ². I conclude that if the legislature intended to allow an impoundment to be appealed on the basis that the vehicle was taken without the owner’s consent it would have used words to that effect.

29Instead, it used the term “stolen”. Guidance on the meaning of that term can be drawn from the Criminal Code of Canada which provides that:

“Steal” means to commit theft.³

“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…”⁴

30The Criminal Code definition of “stolen” appears to have been adopted by the Divisional Court which stated in an impoundment case:

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.⁵

31I conclude that in order to establish tat the vehicle was stolen, the appellant must demonstrate that the vehicle was taken without consent by a person who intended to deprive the owner of the vehicle, either temporarily or permanently.

32While it is true that F.O. took the vehicle without the appellant’s consent, the facts indicate that he did not intend to deprive the appellant of the vehicle. According to an affidavit sworn by F.O.:

“…on April 24, 2020 I was at my girlfriend’s house…At this time I needed to run an important errand. I made the poor decision of taking my mother in law’s car thinking I will run a quick errand and be back soon, and everything would be ok.

I have never asked to borrow her car before. I knew she would have no issues loaning me the vehicle. However, I also knew if she found out that I did not have a valid driver’s licence she would not have let me taken the vehicle. Nonetheless, I took my chances and made a very poor decision…”

33I conclude that F.O. fraudulently and without color of right took the appellant’s vehicle - he took the vehicle without asking permission knowing that the appellant would not consent if she was aware that his licence was suspended. However, the evidence indicates that he did not intend to deprive the appellant of her vehicle. He intended to run a quick errand and return the vehicle before the appellant was aware that it was gone. While the vehicle was certainly taken without the appellant’s consent, it was not “stolen” within the meaning of the Act and Regulation.

ORDER

34For the reasons set out above, pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the Appellant’s motor vehicle.

LICENCE APPEAL TRIBUNAL

Stephen Scharbach, Member

Footnotes

1. 1The Act, s. 50.2(3).
2. 2The Act, s. 192(2) and s. 207
3. 3Criminal Code, s. 2
4. 4Criminal Code, s. 322(1)(a)
5. 5Marshall v. Ontario (Registrar of Motor Vehicles) [2002] O.J. No 745.