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
Between:
Darlene Farkas
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Theodore Crljenica, Member
Appearances:
For the Appellant: Darlene Farkas, Self Represented
For the Respondent: Sonia DeSantis, Agent
Heard by Teleconference: February 3, 2021
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appeal of Darlene Farkas (the “appellant”) from the 45-day impoundment of her motor vehicle, filed pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), was heard on February 3, 2021 via teleconference1.
2The appellant’s motor vehicle was impounded on December 19, 2020 because the operator was driving with a suspended licence (the “suspended driver”).
3For the reasons set out below, the appeal is dismissed and the impoundment is confirmed.
ISSUE ON THE APPEAL
4The issue to be determined on this appeal is whether the appellant’s vehicle was stolen by the suspended driver.
FACTS
5The suspended driver is the appellant’s son. At the time of the relevant events he lived with the appellant.
6On two previous occasions, in 2014 and 2016, the suspended driver was found to be driving without a driver’s licence and on both occasions the vehicle he was driving was impounded. In 2014 he was the owner of the vehicle but by 2016 he had transferred ownership to the appellant and she was the owner of the vehicle at the time of the 2016 impoundment.
7The impounded vehicle that is the subject matter of the current appeal is owned by the appellant but is not the same vehicle that was impounded in 2014 and 2016.
8The appellant’s son lives with the appellant. After the 2016 impoundment the appellant kept her vehicle keys hidden so that her son would not drive it. When he needed to go somewhere, he asked his sister or the appellant for a ride.
9In 2019 after the appellant purchased the vehicle that is the subject matter of this appeal, she felt she could trust her son to not take the vehicle and she began to leave the keys on a hook in the kitchen. She believed that he would not drive this vehicle because unlike the vehicle that was impounded in 2016, he has never owned this one, along with the fact that in the intervening four years he had not attempted to take the appellant’s vehicle.
10On the day of the impoundment the appellant and her son were both at home. While the appellant was napping during the afternoon her son took the keys and used the vehicle to go shopping. According to the appellant he did not want to wake her up to drive him as she had been working a lot of hours and needed to catch up on sleep. After the suspended driver completed his shopping and was on his way home he was stopped by the police and the vehicle was impounded.
THE LAW
11Section 50.2(3) of the Act sets out the grounds on which the Tribunal may order the Registrar to release an impounded motor vehicle. The appellant’s only ground of appeal is pursuant to subsection (a):
(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;
12The onus is on the appellant to establish on the balance of probabilities that his or her vehicle was stolen.
13The term “stolen” is not defined under the Act. As the Act uses a word that has criminal connotations this Tribunal has often looked to the Criminal Code, R.S.C. 1985, c. C-46, where “steal” is defined as “to commit theft”. The offense of theft is set out in subsection 322(1) of the Criminal Code and includes the following:
322(1) 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,
- 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;”
14In Marshall v Ontario (Registrar of Motor Vehicles), [2002] OJ No 745, on appeal of a decision of this Tribunal, the Divisional Court ruled that for a vehicle to be stolen for the purpose of section 50.2 of the Act the person who took it must have intended to deprive the owner of it, whether permanently or temporarily. There have been many appeals in which this Tribunal has followed this ruling: see for example, Auto Zone & Rental v. Registrar of Motor Vehicles, 2016 CanLII 88933 (ONLAT) and Sterling v. Registrar of Motor Vehicles, 2020 CanLII 72479 (ONLAT), in which the Tribunal stated:
28The Act provides that an owner may appeal an impoundment on the basis that the [vehicle] was “stolen”. That term is not defined in the Act or Regulation. However, it seems clear that the legislature intended it to mean something different than “taken without consent”. There are at least two provisions in the Act which apply in circumstances where the vehicle was taken “without the owner’s consent”. I conclude that if the legislature intended to allow an impoundment to be appealed on the basis that the vehicle was taken without the owner’s consent it would have used words to that effect.
15Thus, for a vehicle to have been stolen to fall within section 50.2(3)(a) more is required than the suspended driver taking the vehicle without the owner’s consent. The intent of the suspended driver when he or she took the vehicle is an important factor in determining if the vehicle was stolen or merely taken without consent.
16In the appeal before me there was no evidence from the suspended driver that might, if believed, provide a direct answer to the question of why he took the vehicle. As such I am left with the evidence of the appellant that the suspended driver took the vehicle to go shopping without waking the appellant. He was stopped by the police on his way home. Based on this, it can be inferred that he likely intended to return home with the vehicle before the appellant woke up.
17Applying the law to these facts it is my determination that the suspended driver did not take the appellant’s vehicle fraudulently, but he did take it without colour of right. Turning to the question of whether he intended to temporarily or permanently deprive the appellant of the vehicle, although it can be said that the appellant was deprived of the vehicle because it was not sitting in her driveway while she napped, what matters is the suspended driver’s intent. It is my determination that the suspended driver did not intend to temporarily or permanently deprive the appellant of the vehicle. He took it to go shopping and expected to return the vehicle without the appellant knowing he took it. At most, this evidence supports a finding that the suspended driver took the vehicle without the appellant’s permission.
18Therefore, I find that the appellant’s vehicle was not “stolen” when it was taken by the suspended driver.
ORDER
19For the reasons set out above the appeal is dismissed and the impoundment is confirmed.
LICENCE APPEAL TRIBUNAL
Theodore Crljenica,
Vice-Chair
Released: February 19, 2021