Date: 2021-07-02

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:

Cheri Lynn Jackson

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION & ORDER

ADJUDICATOR: Jennifer Friedland, Member

APPEARANCES:

For the Appellant: Self Represented

For the Respondent: Steve Grootenboer, Agent

Held by Teleconference: June 11, 2021

REASONS FOR DECISION

A. Overview

1The appellant appeals the impoundment of her 2014 Ford Escape. It was impounded on May 7, 2021 for 90 days under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “Act”). This provision allows a police officer to detain and then impound a motor vehicle in certain circumstances, including if the person driving the vehicle at the time has a suspended driver’s licence for a Criminal Code-related reason.

2The driver in this case was the appellant’s ex-boyfriend TZ. His licence had been suspended following an impaired driving conviction. He was joint owner of the vehicle in question.

3The impoundment was for 90 days because this was the second impoundment of a vehicle owned by the appellant within a prescribed period of two years.¹

B. Issue

4The appellant initially appealed the impoundment pursuant to s. 50.2(3)(c) of the Act on the grounds that the vehicle was stolen at the time it was detained in order to be impounded; and pursuant to s. 50.2(3)(d) on the grounds that the impoundment would result in exceptional hardship. However, pursuant to s. 50.2(4) of the Act, the exceptional hardship ground of appeal is not available to an owner who has previously had a vehicle impounded under s. 55.1 of the Act, as is the case here. Therefore the hearing proceeded only on the issue of stolen.

C. Result

5Following the hearing, I orally informed the parties that the impoundment would be confirmed with reasons to follow. These are my reasons.

D. Facts

6The appellant had been in an on and off relationship with TZ for many years. Approximately five years ago they purchased a car together. The appellant explained that although TZ was a suspended driver at the time, he became a joint owner in order to obtain the financing that the couple required for the vehicle. She explained that TZ had a separate set of keys but that he was not supposed to be driving the vehicle.

7In October 2020, TZ was caught driving the same vehicle with a suspended licence and the car was impounded for 45 days at that time as a result.

8The appellant testified that she broke up with TZ in or around November of 2020, shortly after the first impoundment. She said she kept the car because he was not allowed to be driving it anyway. She candidly admitted that she expected a “big fight” over who would get the car in the end. The appellant confirmed that they have no separation agreement about the car or any other property jointly acquired during the relationship.

9The appellant testified that during the relationship TZ made the payments on the car and she paid the rent. She explained that after the break-up, TZ continued to make the payments for the car from his bank account but that she transferred him the funds to do so.

10TZ kept the second set of keys when the couple broke up. The appellant acknowledged she did not at any time try to get them from him, though she wishes she had.

11On the occasion of this second impoundment, TZ took the car from the parking lot of the appellant’s workplace, which is a medical transport centre. The appellant is an ambulance driver. On May 7, 2021, she returned from a shift driving the ambulance to discover that TZ had taken the car from the centre’s parking lot. The appellant testified that she had had no contact with TZ for a number of months and that she had no expectation that he would take the vehicle.

12The appellant testified that TZ told her afterward that he had taken the car for a job interview but she did not believe him. The appellant believes he took the car between 11:00 a.m. and 11:30 a.m. that day. He was pulled over shortly after noon.

13The appellant submits that the act of TZ coming to her workplace and taking the vehicle from the parking lot without her permission constitutes stealing. She was distressed and shocked that he had done this.

14The appellant’s employer wrote a letter that was admitted in evidence, and which corroborated the appellant’s description of how and when the vehicle was taken.

E. Law & Analysis

15There are limited grounds to appeal a s. 55.1 impoundment. One of these is if the vehicle was stolen at the time it was detained in order to be impounded.

16The Divisional Court, in the case of Marshall v. Ontario (Registrar of Motor Vehicles) [2002] O.J. No. 745, has provided the following definition of “stolen” in the impoundment context. In that case, the Court stated that a vehicle is “stolen” within the meaning of the Act

… when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.

17The burden is on the appellant to prove, on a balance of probabilities that the vehicle was stolen. This means I must be satisfied that it is more likely than not that the car was stolen. It is a lower standard than in the criminal context, which requires proof beyond a reasonable doubt.

18In this case, there is an additional factor to consider, which is that the car was jointly owned between the appellant and TZ.

19Section 328 of the Criminal Code establishes that a person may be convicted of theft notwithstanding that the thing alleged to have been stolen was stolen

(a) by the owner of it from a person who has a special property or interest in it;

(b) by a person who has a special property or interest in it from the owner of it;

(c) by a lessee of it from his reversioner;

(d) by one of several joint owners, tenants in common or partners of or in it from the other persons who have an interest in it; or

(e) by the representatives of an organization from the organization.

20However, while the fact of co-ownership is not a bar to finding that the vehicle was stolen, it may nonetheless be a relevant factor in determining context.

21In the context of this case, I find the fact of joint ownership sufficient to persuade me that the vehicle was not stolen at the time it was detained in order to be impounded.

22While the circumstances in which the vehicle was taken could support a finding of theft in other contexts, I am unable to conclude that it amounts to such in this case. From the evidence before me, TZ was equally entitled to be in possession of the vehicle as was the appellant. They had no agreement to the contrary. The appellant knew that TZ considered the car to be his as much as hers and he had retained one set of the keys. While she testified that she was now making the car payments, there is no evidence to suggest that she had bought out TZ’s interest in the car. To the contrary, she was expecting to still have a “big fight” over it. These factors combine to persuade me that TZ’s taking of the car does not amount to theft. It may have been sneaky of him to take the car in this fashion, and the appellant may not have been expecting it, but that does not mean that it was stolen within the meaning of the Act in this case.

23In my view it is important not to confuse the unlawfulness of TZ driving with a suspended licence with the lawfulness of his possession of the vehicle. While there may be circumstances where taking jointly owned property can be theft, in this case the evidence satisfies me that TZ was entitled to take the vehicle, as it was ½ his and they did not have an agreement to the contrary. I find therefore that the vehicle was not stolen at the time it was detained in order to be impounded.

ORDER

24Pursuant to s. 50.2 (5) of the Act, the impoundment is confirmed.

Licence Appeal Tribunal

Jennifer Friedland,

Member

Footnotes

1. 1HTA, s. 55.1 (3), and Ontario Regulation 631/98 s. 1