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
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
RECONSIDERATION DECISION
Adjudicator: Stephen Scharbach, Member
Date: September 16, 2020
Written Submissions by: For the Appellant: Marcela Ahumada, Counsel For the Registrar: Patrick Moore, Counsel
A. Introduction
1Wide Area Communications Corp. (“appellant”) has requested a reconsideration of the Tribunal’s decision released on May 4, 2020 (“Tribunal Decision”), dismissing its appeal under s.50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) regarding the impoundment of one of its service vehicles.
2Rule 18 of the Tribunal’s Common Rules of Practice and Procedure (“Rules”)1 sets out the criteria for granting a reconsideration request.
3The appellant relies on Rule 18.2(b) which states that the Tribunal may reconsider a previous decision where, “The Tribunal made a significant error or law or fact such that the Tribunal would likely have reached a different decision had the error not been made”.
4According to the appellant, reconsideration is appropriate in this case because the decision contains the following two significant legal errors:
i. The Tribunal erred in concluding that the vehicle was “not stolen” at the time it was impounded; and,
ii. The Tribunal misapplied the due diligence standard contained in s. 50.2(3)(c) of the Highway Traffic Act (“Act”).
5For the reasons set out below, the appellant’s request for reconsideration is dismissed.
B. Analysis
(i) Finding of Not Stolen
6The appellant argues that the Tribunal made two errors of law in concluding that the vehicle was not stolen.
7Firstly, the Tribunal erred by requiring that two elements must be proven to support a finding that the vehicle was stolen:
i. it must be taken without the owner’s consent, and
ii. the driver must intend to deprive the owner of it, either permanently or temporarily.
8The Tribunal concluded that in this case the vehicle was not stolen because the second element - an intention to deprive the owner - was not proven. The appellant argues that the Tribunal erred by not interpreting the term “stolen” from the “viewpoint of the owner”. According to the appellant, when viewed from that perspective, the determining factor should be whether the owner consented to the driver’s use of the vehicle. According to the appellant, an intention to deprive the owner of it “…is not determinative in these circumstances.”
9Secondly, the appellant argues that the Tribunal erred by considering the fact that the appellant did not pursue theft charges against the driver as supporting the conclusion that the vehicle was not stolen.
10With respect to the first issue, I conclude that the Tribunal made no error of law. The Tribunal applied the correct legal test to determine whether the vehicle was stolen and correctly required that both factual elements - lack of consent and intention to deprive the owner - must be present to support a finding of stolen.
11The term “stolen” is not defined in the Act, however, it seems clear that the legislature intended it to mean something more than simply “taken without consent”. There are at least two provisions in the Act which apply in circumstances where a vehicle is taken “without the owner’s consent”2. I conclude that if the legislature intended to allow for an appeal simply on the basis that the vehicle was taken without the owner’s consent, it would have used words to that effect.
12Instead, the legislature used the term “stolen”. As the Tribunal noted in its decision, guidance on the meaning of that term meaning 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
13The Criminal Code definition of “stolen” appears to have been adopted by the Divisional Court in its interpretation of s. 50.2(3)(a) of the Act. 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.5
14In this case the Tribunal applied the correct test - an owner appealing an impoundment on the ground that the vehicle was stolen must demonstrate that the vehicle was taken without the owner’s consent and by a person who intended to deprive the owner of the vehicle, either temporarily or permanently.
15Based on the evidence, the Tribunal concluded that the first element was present, but the second element was not. In other words, the evidence did not establish that the driver took the vehicle with the intention to deprive the appellant of it, either permanently or temporarily. He was driving the vehicle to attend a service call on behalf of the appellant. He was not driving the vehicle for his own purpose and thereby depriving the appellant of it, he was using the vehicle to attend to the appellant’s business. The Tribunal made no legal or factual error in that regard.
16With respect to the second issue, I conclude that the Tribunal committed no error by considering the appellant’s decision not to pursue theft charges against the driver as supporting the conclusion that the vehicle was not stolen.
17The appellant points to a Tribunal decision6 which concluded that a finding of “stolen” under s. 50.2(3)(a) does not require that the owner pursue theft charges against the driver.
18I agree with that. However, in this case the Tribunal did not decide that pursuing charges was required to find the vehicle was stolen. The Tribunal concluded that the vehicle was not stolen because evidence of the driver’s intention to deprive the appellant of the vehicle was missing and noted that conclusion was supported by the fact that the appellant did not attempt to pursue theft charges and instead counselled the employee for unauthorised use of the vehicle and breach of company policy.
19The Tribunal essentially noted that the appellant appears to have treated the incident as a violation of company policy and not as an incident of theft and that supported the Tribunal’s conclusion that although the vehicle was taken in breach of company policy, it was not stolen. In my view, the Tribunal made no error of law in that regard.
(ii) Due Diligence
20The appellant also relied on a second ground for appeal pursuant to s. 50.2(3)(c):
that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver…at the time it was …impounded was not then under suspension...
21The Tribunal concluded that the there was no factual basis to support this ground of appeal.
22In its reconsideration request, the appellant argues that the Tribunal erred in law “by misapplying the due diligence standard in s. 50.2(3)(c)”. According to the appellant:
In the impoundment context, s. 50.2(3)(c) requires the Appellant to show:
(a) That they took all reasonable steps to prevent an individual without a valid licence from driving the car, and,
(b) That at the time of the impoundment they had an honest and reasonable belief that their car was driven by someone with a valid licence.
23According to the appellant, under that test the appellant established that it exercised due diligence under s. 50.2(3)(c) – it had a system in place to ensure that only employees with a valid licence drove its vehicles and when the vehicle was impounded the appellant was under the impression it was being driven by another employee who was validly licenced.
24I conclude that the Tribunal made no error or law in its interpretation or application of s. 50.2(3)(c) in this case. The appellant’s suggested interpretation of s. 50.2(3)(c) appears to ignore its limited scope. The wording of s. 50.2(3)(c) is specific. To succeed, the appellant needed to prove on a balance of probabilities that it took all reasonable and prudent steps in attempting to determine that the driver of the vehicle at the time of impoundment held a valid driver’s licence.
25This ground appears to typically apply in situations where the owner consents to a driver’s use of the vehicle and reflects a responsibility on the owner to take reasonable steps to ensure that the driver holds a valid driver’s licence. Section 50.2(3)(c) appears to have little or no application in the unique circumstances such as this where the vehicle is taken without the owner’s specific consent and the crucial issue is really whether the vehicle was stolen.
26Although the applicability of this ground of appeal is questionable, the appellant argued at the hearing that it exercised due diligence in attempting to determine that the driver was validly licenced by obtaining a photo of the driver’s licence when he was hired about seven months earlier. However, the Tribunal found that:
i. Although the driver provided a photo of his licence when hired, that was provided by every employee upon hiring for administrative purposes and not to verify licence validity
ii. The appellant did not check whether the driver’s licence was valid, either when he was hired or on a periodic basis afterwards.
27The Tribunal concluded that the appellant failed to establish a factual basis for grounds for appeal under s. 50.2(3)(c) of the Act - it failed to prove that it took all reasonable and prudent steps to attempt to determine that the driver of the impounded vehicle held a valid driver’s licence.
28I conclude that the Tribunal made no error of law in its interpretation or application of s. 50.2(3)(c) in this case.
C. Order
29The appellant’s request for reconsideration is dismissed.
LICENCE APPEAL TRIBUNAL
Stephen Scharbach, Member
Released: September 18th, 2020
Footnotes
- Common Rules of Practice & Procedure, Licence Appeal Tribunal, Animal Care Review Board, Fire Safety Commission, October 2, 2017
- The Act, s. 192(2) and s. 207
- Criminal Code, s. 2
- Criminal Code, s. 322(1)(a)
- Marshall v. Ontario (Registrar of Motor Vehicles) [2002] O.J. No 745.
- 9828 v. Registrar of Motor Vehicles 2015 CanLII 72209 (ON LAT)