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: 2021-01-29

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a Decision of the Registrar of Motor Vehicles Pursuant to Section 48.3(2) of that Act – to Appeal a 90-day impoundment

Between:

Carrie Gonneau

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Luisa Ritacca, Member

Appearances:

For the Appellant: Carrie Gonneau, Self-Represented

For the Respondent: Sanjay Kapur, Representative

Place and Date(s) of Hearing: Teleconference, December 22, 2020

REASONS FOR DECISION AND ORDER

A. OVERVIEW:

1A teleconference hearing was held on December 22, 2020, to consider the appellant’s appeal of a 90-day impoundment of her 2009 Nissan ROG (the “vehicle”) pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “Act”) .

2The vehicle was impounded on November 30th, 2020. At the time of the impoundment, the appellant’s vehicle was being driven by Steven Lizotte, a former partner, who was living in the appellant’s home at the time. Mr. Lizotte does not have a valid driver’s license, as his has been suspended from 2011.

3The appellant appeals on the basis that the vehicle had been stolen at the time it was detained in order to be impounded.

4As this was the second impoundment of a vehicle owned by the appellant, the ground for appeal of “exceptional hardship” was not available to the appellant.

B. ISSUE and CONCLUSION:

5The only issue before the Tribunal is whether the vehicle was stolen at the time it was detained for the impounded.

6Having carefully reviewed the evidence provided during the hearing, I find the appellant has not established that the vehicle was stolen at the time it was detained in order to be impounded. As such, I confirm the impoundment of the appellant’s vehicle.

C. LAW and ANALYSIS:

7The owner of a vehicle impounded under s. 55.1 of the Act may, pursuant to s. 50.2, appeal the impoundment based on one of four grounds set out in s. 50.2 (3) of the Act.

8In the present case, the appellant relies on the ground as set out in subsection (3)(1), namely that the vehicle was stolen at the time if was detained for the impoundment.

9The onus is on the appellant to demonstrate that the vehicle was “stolen”.

10The term “stolen” is not defined in the Act, as such the meaning of stolen under the Criminal Code (the “Code”) is helpful. Section 2 of the Code defines “steal” as to “commit theft”. Subsection 322(1) of the Code creates the offences of theft, 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 of 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

11In Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745, the Divisional Court in the context of an impoundment appeal confirmed that “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.”

12As such, in order for the appellant to establish that the vehicle was “stolen” at the time of the impoundment, she must demonstrate that the vehicle was taken without her consent by a person who intended to deprive her of the vehicle either permanently or temporarily.

13The appellant testified that Mr. Lizotte had been living with her and her children for some time prior to the night he took the vehicle. While they were no longer in a relationship, she allowed him to stay in her home so that he could have a relationship with their children. The appellant said that Mr. Lizotte could be violent and unpredictable, but she nonetheless allowed him to live in her home.

14The appellant explained that she took every step possible to ensure that Mr. Lizotte did not take her vehicle. On November 20th, just ten days prior to the impoundment, the appellant had called the police to ask to have Mr. Lizotte removed, as he was attempted to take her vehicle. While the evidence was not clear on this point, the appellant allowed Mr. Lizotte to return to the home shortly thereafter.

15The appellant acknowledged that this was not the first time a vehicle of hers had been impounded. She confirmed that in September 2019, Mr. Lizotte had once again taken her vehicle without her permission. At that time, the respondent agreed to return the vehicle to the appellant ahead of the expiry of the 45-day period.

16The night of the impoundment, the appellant testified that she had taken a sleeping pill around 10:00 p.m. and was in bed. She said that she kept her car keys under her pillow and that she did not hear Mr. Lizotte take them or take the car later that night. Mr. Lizotte was stopped by the police at approximately 2:30 a.m., at which time he was charged with a number of criminal offences, including weapons charges. The appellant stated that she received a telephone call at the time of Mr. Lizotte’s arrest by Constable Prout, who advised her that the vehicle would be impounded. The appellant explained that she was barely awake and did not fully process what Constable Prout was telling her. She insisted that had she known that Mr. Lizotte had taken the car, she would have reported it stolen.

17The appellant conceded that she did not follow-up with Constable Prout with respect to making a report as to a stolen vehicle until sometime on December 3rd or 4th. She explained that she was unable to follow-up earlier because Mr. Lizotte was still in her home and she was frightened to do anything to upset or contradict him. There was no evidence before me as to whether or not Mr. Lizotte has been charged in connection having taken the vehicle.

18The appellant further conceded that when she initially filed her appeal of the impoundment, she did so on the basis of “undue hardship”. In her Notice of Appeal, she represented to the Tribunal that she had been in the vehicle with Mr. Lizotte and not that it had been stolen from her. The appellant explained that she misrepresented the facts in her Notice of Appeal at the direction of Mr. Lizotte. She explained that he wanted her to lie so as to minimize the trouble he was in. The appellant said she was afraid not to do as Mr. Lizotte directed as he could be violent.

19The documents filed by the respondent show that the appellant only raised the “stolen” ground of appeal after she was advised by the Registrar and Tribunal’s office that the ground of “exceptional hardship” was not available to her since this was her second impoundment in less than 2-years (s. 50.2(4) makes it clear that the “exceptional hardship” appeal ground is not available if the vehicle in question has previously been impounded under s. 55.1). The appellant explained that this was simply a coincidence and that she raised the issue of the vehicle being stolen as soon as she felt safe from Mr. Lizotte. She explained that by early December, he was no longer in her home and she felt as though she could tell the Tribunal the truth about the vehicle.

20The appellant’s explanation for the misleading Notice of Appeal was difficult to reconcile with her other evidence that she had immediately wanted to report the vehicle stolen and that she thought in fact that charges had been laid against Mr. Lizotte in that regard. Further, while I understand that the appellant said she felt afraid of Mr. Lizotte at the time, there was also evidence before me that she had called the police on November 20th to have him removed. Unfortunately, she did not do so again after the impoundment. Finally, I note that the appellant has an email and access to a computer. I find it hard to accept that she could not communicate her real reasons for appeal (i.e. the vehicle was stolen) to the Tribunal at some point in Mr. Lizotte’s absence. She testified that while he lived in her home, he stayed in a room downstairs and she had a bedroom on the upper floor.

21I have serious concerns regarding the appellant’s change of position. It appears she intended to appeal on the basis of “exceptional hardship” with no reference or suggestion that the vehicle had been stolen. This includes both on the night the police notified her of the impoundment, and also in her initial appeal package to the Tribunal. She was prepared to mislead the Tribunal about her presence in the vehicle. She only decided to raise the issue of the vehicle being “stolen” after it was made clear to her that the ground of “exceptional hardship” was not available. This willingness to mislead the Tribunal calls into serious question the reliability of her evidence.

22That said, even if I was prepared to accept the appellant’s evidence with respect to the night of the impoundment, at its highest, the evidence suggests that the vehicle was taken without the appellant’s permission. Given the time of night, I accept that the appellant was likely asleep and I also accept, given their history, that the appellant did not want Mr. Lizotte to use her vehicle. That said, there was no evidence before me that Mr. Lizotte intended to deprive the vehicle from the appellant, either on a temporary or permanent basis. Mr. Lizotte filed a letter in support of the appellant’s position. He acknowledged having taken the vehicle without the appellant’s permission, but he does not say what he intended to do or whether he intended to “deprive” her of the vehicle. The appellant was allegedly asleep at the time the vehicle was taken. She cannot now say that she was “deprived” of its use, at least at that time. There was no evidence to suggest that the vehicle would not have been returned.

23In sum, the evidence presented does not support a finding that Mr. Lizotte stole the vehicle, within the meaning of section 50.2(3)(a) when it was detained for impoundment. I agree with past Tribunal jurisprudence that an owner does not need to report their vehicle as being stolen in order for this Tribunal to find that it was.³ However, I also agree that whether an owner reports it as being stolen can be probative. This is the second impoundment resulting from Mr. Lizotte driving the appellant’s vehicle. The evidence establishes that when the appellant was first notified of the impoundment, she did not claim that it was stolen. Moreover, the appellant did not follow up with the police about the issue. In fact, she didn’t raise the issue with the Tribunal until she was notified that the exceptional hardship ground of appeal was not available to her.

24In the course of the hearing, I heard evidence as to the appellant’s health and financial struggles. There is no doubt that her involvement with Mr. Lizotte and the impoundment of her vehicle has put a strain on the appellant. Unfortunately, I am bound by law to consider the applicable grounds of appeal available to the appellant, without reference to her particular personal circumstances.

D. ORDER:

25For the reasons set out above, pursuant to s. 50.2(5) of the Act, I deny the appeal and confirm the impoundment order.

Footnotes

1. 1Criminal Code, s. 2
2. 2Criminal Code, s. 322(1)(a)
3. 3See, for example: Gomes v. Registrar of Motor Vehicles, 2020 CanLII 95848 at para. 24.