Licence Appeal Tribunal
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:
Angela Tsangaris Appellant
and
Registrar of Motor Vehicles Respondent
DECISION & ORDER
ADJUDICATOR: Jennifer Friedland, Member
APPEARANCES:
For the Appellant: Self Represented For the Respondent: Stella Velocci, Agent
Held by Teleconference: August 6, 2020
REASONS FOR DECISION
Background
1The appellant’s motor vehicle was impounded on June 14, 2020 for 45 days under s. 55.1 of the Highway Traffic Act (the “Act”). This provision allows a police officer to detain and then impound a motor vehicle in certain circumstances, including if the person driving the vehicle at the time has a suspended driver’s licence for a Criminal Code-related reason.
2In this case, the vehicle was being driven by the appellant’s partner, JH, whose driver’s licence had initially been suspended in 1999 for dangerous driving and was subsequently suspended for life following multiple convictions over the intervening years for driving while disqualified.
3Section 50.2 (3) of the Act sets out the only available grounds upon which an owner can appeal a vehicle impoundment of the type in this case.
4The appellant appealed on the following grounds:
50.2(3) (c) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;
50.2(3) (d) that the impoundment will result in exceptional hardship.
Result
5For the reasons given below, the impoundment is confirmed.
6The exceptional hardship ground is not available to an owner who has previously had a vehicle impounded under s. 55.1 of the Act.
7Regarding the ground of stolen, the facts of this case do not support a finding that the vehicle was stolen.
Preliminary issue – exceptional hardship ground not available
8The right to appeal an impoundment on the ground of exceptional hardship is set out at. s. 50.2(3) (d) of the Act. It is not an absolute right. Rather, it is qualified by s. 50.2 (4) which states that “clause (3) (d) does not apply if there was a previous impoundment under section 55.1 with respect to any motor vehicle then owned by the same owner.”
9The Registrar has provided evidence showing the appellant has previously had a vehicle impounded under s. 55.1 after being driven by this same suspended driver. In fact, this has happened on two prior occasions. The appellant admits the fact of the prior impoundments.
10Given the previous impoundments under s. 55.1 of a vehicle owned by the appellant at the time and the clear wording of s. 50.2(4), the appellant is not entitled to appeal on the ground of exceptional hardship. The appellant was informed of this fact during the hearing and the appeal proceeded only on the issue of stolen.
Facts on the Issue of Stolen
11The appellant and the driver, JH, have been in a relationship on and off for many years and have children together. The appellant explained that she knew JH’s licence was suspended and that he did not have permission to drive her vehicle. As well, to her knowledge, JH had not made any attempt to drive her vehicle for a number of years.
12On the day in question, the appellant had loaned her vehicle to an acquaintance of theirs to take JH and their children fishing. Her truck was towing a fishing boat.
13The appellant’s information about how JH came to be driving her vehicle was pieced together by what she had been told by JH himself. According to JH, they were at the marina and had not yet put the boat in the water. Meanwhile, the children were acting up and throwing wood in the lake. This apparently caused the owner of the marina to tell JH to move along and get the boat in the water. JH thus jumped in the cab and maneuvered it into position to launch the boat. How this came to the attention of the police was not explained. Suffice to say, the details of the impoundment confirm that the vehicle was detained at the marina.
14The appellant admits that she cannot say JH had any intention of stealing her vehicle. The most she can say is that he drove it without permission.
Law & Analysis
15The word “stolen” is not defined in the Act.In the Criminal Code of Canada, “to steal” is defined as “to commit theft.” The offence of theft is then described at s. 322 as follows:
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;
16The Divisional Court, in the case of Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745, has provided the following definition of “stolen” in the impoundment context. In that case, the Court stated that a vehicle is “stolen” within the meaning of the Act:
[W]hen it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.
17In impoundment cases, the burden is on the appellant to prove that the vehicle was stolen. The proof must be established on a balance of probabilities. This is less than the criminal burden of proof beyond a reasonable doubt.
18In this case the appellant admits that she did not think JH had any intention of stealing her vehicle or doing anything more than maneuvering it into position to launch the boat. The most the appellant can say is that when he took the wheel for this purpose, he did not have permission to do so. While lack of permission can sometimes be a factor contributing to a finding of stolen, it is not sufficient on its own to ground such a finding. In this case there are no other factors that suggest that the vehicle was stolen by JH at the time it was detained in order to be impounded. Rather, it seems quite plain that JH was only in the vehicle for the purpose of helping to launch the boat.
19Given the above, I have no basis to find that the vehicle was stolen. The impoundment will therefore be confirmed.
ORDER
20Pursuant to s. 50.2 (5) of the Act, the impoundment is confirmed.
Licence Appeal Tribunal
Jennifer Friedland, Member
Released: August 26, 2020