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:
Keil Ramnath
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Stephen Scharbach, Member
APPEARANCES:
For the Appellant: Keil Ramnath, Self-Represented
For the Respondent: Stephen Grootenboer, Agent
Heard by Teleconference: November 18, 2021
Overview
1Mr. Keil Ramnath (“appellant”) appeals the impoundment of his 2017 Hyundai Elantra (“vehicle”).
2The vehicle was impounded on October 22, 2021 when it was discovered by police being driven by GH, a friend of the appellant.
3GH’s driver’s licence was under suspension due to an earlier drinking and driving offence and when the police discovered him driving the appellant’s vehicle, it was impounded for 45 days as required under the Highway Traffic Act (“Act”).
4The appellant appeals the impoundment on two grounds:
(a) The vehicle was stolen at the time it was impounded.
(b) The impoundment will result in exceptional hardship
5For the reasons set out below, I conclude that the vehicle was stolen at the time it was impounded and that the impoundment will result in exceptional hardship as that term is defined in the Act and Regulation.
6I have therefore ordered the Registrar to release the appellant’s vehicle.
The Law
7Under 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 driver’s licence is under suspension because of (among other things), a Criminal Code conviction for certain drinking and driving offences.
8The owner of the impounded vehicle may appeal the impoundment to this Tribunal, and the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle.
9The Act allows only five grounds on which an owner may appeal, and they include the two grounds the appellant relies on in this case:
- that the impoundment will result in exceptional hardship,
- that the motor vehicle was stolen at the time it was impounded
10The onus is on the appellant to establish the facts that support those grounds of appeal on a balance of probabilities.
11Ontario Regulation 631/98 (the “Regulation”) sets out the factors that the Tribunal must consider in determining whether an impoundment will result in exceptional hardship.
12Section 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.
- 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.
- the Tribunal shall not consider inconvenience to any person
- financial loss and loss of employment opportunities may be considered if the owner demonstrates that:
- there is no available alternative to the impounded vehicle
- the loss will be immediate, significant, and lasting
- the impact of the loss will be on someone ordinarily transported by the vehicle
- the impact of the loss will be on someone other than the suspended driver.
13In order to show that no alternative to the impounded vehicle is available, the Regulation requires the owner to 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
14With respect to whether the vehicle was stolen at the time it was impounded, the appellant testified that on October 21, 2021, he and GH drove in the appellant’s vehicle to the home of friends. The appellant consumed alcohol and decided not to drive home and instead sleep on the back seat of his vehicle.
15He told GH that he would not be driving and advised him to get a taxi or an UBER. The appellant fell asleep in the back of his vehicle. According to the appellant, while he was asleep, GH took the car keys from his pocket and drove the vehicle. The appellant woke up when the vehicle was stopped by police and impounded. According to the appellant, GH stole his vehicle. He did not give GH permission to drive it and GH took the vehicle keys from the appellant while he was asleep.
16With respect to whether the impoundment will result in exceptional hardship, the appellant testified that the impoundment will result in financial loss and likely loss of his employment.
17The appellant lives in Brampton and works as an apprentice pipefitter and welder. The impounded vehicle is his only vehicle and he needs it to get to work sites which are all over the GTA. The appellant stated that as an apprentice he has little flexibility and is expected to work when and where assigned. If he misses too many days at work, his employer will likely terminate his employment.
18As a result of the impoundment, the appellant cannot readily get to work sites and that jeopardises his continued employment and his income. Since the impoundment, the appellant has missed a couple of days of work. On some occasions, he has been able to get rides from friends, work colleagues and the GO bus. He has considered using UBER but finds it cost prohibitive on his apprentice salary.
19With respect to financial loss, the appellant states that as an apprentice his salary is low, and he presently lives from paycheck to paycheck. He cannot afford to pay the impoundment fees to get his vehicle released. The vehicle is financed and if he cannot make his car payments, he will lose the vehicle which will make finding new employment difficult.
Analysis
(a) Was the Vehicle Stolen?
20I conclude that the appellant has satisfied the onus of establishing on a balance of probabilities that the vehicle was stolen at the time it was impounded.
21The Act and the relevant regulations do not define the term “stolen”. However, some 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
22In Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745 (“Marshall”), the Divisional Court stated the following on the meaning of stolen in the context of a vehicle impound appeal:
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.
23According to that definition, a vehicle is “stolen” when it is taken without the owner’s consent and when the person taking the vehicle intends to deprive the owner of it, whether permanently or temporarily.
24With respect to consent, I accept the appellant’s evidence that GH took the vehicle without consent. The appellant gave GH a ride to his friends’ home but when the appellant had too much to drink, he told GH that he would not be driving, and that GH should take a taxi or UBER. He did not give GH permission to drive his vehicle. While he was asleep, GH surreptitiously took the keys out of his pocket and drove the vehicle until it was impounded. In these circumstances, I conclude that GH took the appellant’s vehicle without the appellant’s consent.
25With respect to an intention to deprive the appellant of the vehicle, I note that the appellant was incapable of driving and asleep on the back seat. By taking the car keys from the pocket of the sleeping appellant and operating the vehicle without the appellant’s knowledge or consent, GH appropriated the appellant’s vehicle for his own purposes. By using the vehicle in these circumstances and in this way, GH deprived the appellant of the vehicle, at least temporarily. I therefore conclude that the vehicle was “stolen” at the time it was impounded.
26It is important for this analysis to keep in mind the intent or purpose of the impoundment provisions in the Act and Regulation. Their purpose is to discourage suspended drivers from driving, and to discourage vehicle owners from permitting suspended drivers to drive their vehicles. It does that by effectively imposing a penalty on the vehicle owner if their vehicle is found to be driven by a suspended driver - a 45-day impoundment together with the significant associated costs.
27The Act essentially requires that owners exercise due diligence in attempting to determine that the driver’s licence of anyone driving their vehicle is not suspended. However, an owner cannot be expected to exercise due diligence when the vehicle is taken without their knowledge or permission. That is why one of the few available grounds upon which an impoundment can be appealed is when the vehicle is stolen. In that situation, the owner simply has no opportunity to ensure that the driver holds a valid licence.
Exceptional Hardship
28In my view, the appellant has also met the onus of establishing that the impoundment will result in exceptional hardship as that term is used in the Act and Regulation.
29The Regulation requires that I firstly 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 and safety of any person ordinarily transported by the motor vehicle
30In this case, I accept the appellant’s evidence that he has considered every other reasonable alternative to the impounded vehicle and there are no viable transportation options for the purposes of getting to his work sites each day.
31The appellant’s only vehicle is the impounded vehicle. I accept that public transportation to and from Brampton to work sites around the GTA is not realistic option. So far, the appellant had been able to attend work on most days by getting rides from friends, work colleagues and public transportation where available. According to the appellant up until recently, he was able to get rides from a work colleague who was working at the same job site. However, the appellant is no longer working at that site.
32The Regulation requires that I also take into consideration whether the impoundment will result in a threat to the health and safety any person ordinarily transported by the vehicle. That is not the case here – there is no evidence, such as missed doctor’s appointments or other medical emergencies, that would establish such a conclusion.
33However, that is only one factor that I must consider in determining whether the impoundment will result in exceptional hardship. In this case, there are other important factors – loss of employment /employment opportunities and financial hardship.
34Taking those factors into account I conclude that the continued impoundment will result in exceptional hardship. The impoundment severely limits the appellant’s ability to get to his work sites. If he cannot get to work, he will not get paid and his continued employment is at risk. The appellant is a father of three children and lives from paycheck to paycheck. I consider that any significant reduction of income or loss of employment will likely have an immediate, significant and lasting impact on the appellant and his family.
Summary
35I conclude that the appellant has satisfied his onus of establishing on a balance of probabilities that the impounded vehicle was stolen at the time it was impounded and that the impoundment will result in exceptional hardship as that term is defined in the Act and Regulation.
Order
36Pursuant to s.50.2(5) of the Highway Traffic Act, I order the Registrar to release the appellant’s vehicle.
Licence Appeal Tribunal
Stephen Scharbach, Member
Released: November 26, 2021
Footnotes
- Criminal Code, s. 2
- Criminal Code, s. 322(1)(a)