Nikki-Lee Venair v. Registrar of Motor Vehicles, 2021 CanLII 18926

Date: 2021-02-25

File Number: 13111/MVIA

Appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to Section 55.1(3) of the Act

Between:

Nikki-Lee Venair

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Jacqueline Castel

Appearances:

For the Appellant: Nikki-Lee Venair, Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: February 24, 2021

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A teleconference hearing was held on February 24, 2021 to consider the appellant’s appeal of the 90-day impoundment of her 2013 Chevrolet, 2TR (the “vehicle”). The vehicle was impounded under s. 55.1 of the Highway Traffic Act R.S.O. 1990, c. H.8 (the “HTA” or the “Act”) on December 22, 2020 because it was being driven by her ex-boyfriend, whose licence is under suspension.

2The appellant is requesting that the Tribunal make a finding that the impoundment should be set aside and order the Registrar of Motor Vehicles (the “Registrar”) to release the vehicle and pay the impound fees.

3Initially, the appellant appealed the impoundment on the ground of exceptional hardship. However, when she learned that the regulations do not allow an appeal on that basis, where the owner of the vehicle has previously had a vehicle impounded under s. 55.1 of the HTA, she amended her Notice of Appeal so that the appeal would be on the ground that the vehicle was stolen at the time of the impoundment.

ISSUE:

4The issue to be determined is whether the vehicle was stolen at the time of the impoundment.

CONCLUSION:

5On the evidence before me at the hearing, I find that the vehicle was not stolen within the meaning) of the HTA.

LAW AND ANALYSIS:

6Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the Act, the officer is required to detain and impound the vehicle. Section 55.1 sets out the scope of the authority and the duration of the period of impoundment. If there has been one previous impoundment in the last two years, as is the case here, the impound period is 90 days. Having two impoundments within two years also means that the appellant cannot rely on the exceptional hardship ground she initially advanced.

7The owner of a vehicle that has been impounded, pursuant to s. 55.1 of the HTA, may pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

8There are limited grounds on which an owner may appeal an impoundment as set out in section 50.2(3) of the HTA. The appellant, in this case, appealed on the ground that the vehicle was stolen at the time of the impoundment.

Stolen

9Section 50.2(3)(a) of the Act provides that a vehicle impoundment may be appealed if the vehicle was “stolen” at the time of the impoundment.

10The term “stolen” is not defined under the Act. In Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745, the Divisional Court held that the Tribunal should not limit the meaning of “stolen” only to an intention to take the vehicle permanently. 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.

11In the absence of a definition of stolen under the Act, the meaning of stolen under the Criminal Code (the “Code”) is instructive. Section 2 of the Code defines “steal” as “to commit theft”. Subsection 322(1) of the Code creates the offense of theft, which reads:

“Everyone 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,

1. 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;”

12The appellant testified that the driver of her vehicle, Louis Elm, was her boyfriend and lived with her at the time of the impoundment. She stated that he was abusive towards her at times during their relationship, and when he demanded the car keys on the date of the impoundment, she was afraid to say “no”. She indicated that she feared for her personal safety. The appellant admitted that when she handed over the keys, she followed him and got into the passenger side of the vehicle. She stated that based on her prior experience with Mr. Elm, if she did not accompany him, her vehicle might go missing for several days. The appellant testified that she did not disclose to the police that Mr. Elm forced her to hand over the keys or that she believed he was intending to steal the vehicle. In response to a question, the appellant stated that on the date of the impoundment, Mr. Elm wanted the vehicle so that he could go to Burger King to get something to eat. She stated that he told her he was starving because he had not eaten all day.

13The respondent called Police Constable (“P.C.”) Stephen Farrand, of the London Police Service, as a witness. P.C. Farrand stated the Mr. Elm is currently serving several lifetime driving prohibitions but continues to drive all the same. According to P.C. Farrand’s testimony, there have been at least four prior occasions where Mr. Elm has been caught driving the appellant’s vehicle. P.C. Farrand testified that when he detained Mr. Elm, on the date of the impoundment, the appellant told him that she was on her way to a work party and that Mr. Elm had been doing a good job staying out of trouble and abstaining from drugs. The appellant acknowledged making these statements to P.C. Farrand but clarified that the work party she planned on attending was virtual. P.C. Farrand indicated that the appellant did not appear to be under any type of duress and that she and Mr. Elm exchanged “I love you” remarks before Mr. Elm entered the police vehicle. The appellant admitted to exchanging such remarks with Mr. Elm.

14I accept the appellant’s evidence that Mr. Elm has been abusive towards her over the course of their relationship. However, the evidence does not support a finding that Mr. Elm stole or was intending to steal her vehicle on the night of the impoundment, within the meaning of section 50.2(3)(a) of the Act. The appellant and Mr. Elm resided together; the appellant was present in the passenger seat of the vehicle when they were detained; based on the appellant’s evidence, Mr. Elm wanted the vehicle so he could get something to eat, and the location of the detention was a local Burger King. Under these circumstances, the appellant’s position that Mr. Elm intended to deprive her of the vehicle (permanently or temporarily) is not substantiated.

ORDER:

15Pursuant to subsection 50.2(5) of the HTA, I deny the appeal and confirm the impoundment order.