Mikayla Grant v. Registrar of Motor Vehicles, 2021 CanLII 62551

Licence Appeal Tribunal

Date: 2021-07-14

Appeal Under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c.H.8 from an impoundment of a motor vehicle pursuant to section 55.1 of the Act for driving while suspended

Between:

Mikayla Grant

Appellant

and

Registrar of Motor Vehicles

Respondent

Decision and Order

Adjudicator: Patricia McQuaid, Member

APPEARANCES:

For the Appellant: Sontauna Rapsch, Paralegal

For the Respondent: Steve Grootenboer, Agent

Heard by teleconference: July 6, 2021

OVERVIEW

1Mikayla Grant (the "appellant"), appeals the impoundment of her vehicle, a 2010 Lexus. On June 1, 2021, E.S., a suspended driver, was driving the vehicle when he was stopped by police. The vehicle subsequently was impounded for 45 days, to July 16, 2021.

2The owner of an impounded vehicle may appeal the impoundment pursuant to s.50.2 of the Highway Traffic Act (the "HTA") and request the Tribunal order the Registrar to release the vehicle. In her Notice of Appeal, the appellant cited, as her ground of appeal, s.50.2(3)(d): that the impoundment will result in exceptional hardship. At the hearing, her evidence focussed on that issue. However, in her evidence, the issue of "stolen" (s. 50.2(3)) was also raised and the respondent had the opportunity to cross examine the appellant on that issue and provide submissions relating to it.

RESULT

3After considering all of the evidence and submissions provided, the Tribunal finds that the appellant has established, on a balance of probabilities, that the vehicle was stolen at the time it was detained for impoundment. The Tribunal orders that the vehicle be released.

EVIDENCE AND ANALYSIS

Issue: Section 50.2(3) of the HTA: Was the vehicle stolen at the time it was detained in order to be impounded?

4The appellant testified that E.S., her former boyfriend, was at her home for the evening and they had an argument about ending their relationship, after which she told him to leave. He did leave, taking her vehicle without her knowledge. The Notice to Registrar of the impoundment, submitted in evidence by the Registrar at the hearing, indicates that the vehicle was impounded at approximately 12:30 a.m. on June 1, 2021. E.S. called her in the afternoon, telling her that he had been arrested and her car had been impounded. Her car keys were in her purse and she assumes he was aware that she kept them there, but she did not think that he would take her vehicle without her permission.

5The appellant stated that she knew E.S.'s licence was suspended. He had never driven her car before. The appellant testified that she was not aware that her car was missing until E.S. called her, and therefore had not reported it to police as having been stolen.

6"Stolen" is not defined in the HTA; however, the case of Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No.745, has provided the Tribunal with guidance in similar cases. The Divisional Court stated that a vehicle is 'stolen' in this context when it is taken without the owner's consent and when the person intends to deprive the owner of it, whether permanently or temporarily.

7The Tribunal's jurisprudence has considered whether taking the vehicle without the owner's express or implied consent means the vehicle was stolen. The Registrar submits that there is no evidence to support a finding, on the balance of probabilities, that E.S. intended to deprive the appellant of her vehicle.

8The appellant's evidence was that in the heat of the argument between the appellant and E.S., during which she told him to leave, he took her vehicle. She had no reason, based on past experience, to think that he might. While it appears that he was able to access to her keys, knowing where the keys are kept does not equate to acquiescence to the taking, particularly where, as here, there is no history of the driver having done so before.

9When an appellant asserts that the vehicle was 'stolen', the Tribunal will look closely at the particular facts particularly where there is a close personal relationship between the owner and driver as there was here. Based on the appellant's evidence, this was not a continuing relationship. She has reached out to E.S. to assist with the cost of the impoundment and he has refused. She did not report the vehicle as stolen nor is it incumbent upon her to do so. The Tribunal has held in the past that while reporting the vehicle as stolen may be strong evidence in favour of a finding of stolen, it is not condition precedent. The appellant's explanation, which I accept and which was not challenged in cross examination, was that E.S. took the vehicle without her consent, and she was not aware that the vehicle was missing until E.S. called her the next day saying that he had been arrested and the vehicle was impounded.

10I find that E.S. took the vehicle without the appellant's permission following a heated argument during which she demanded that he leave her home. I am satisfied on a balance of probabilities that in the circumstances of this case, E.S. intended to deprive the appellant of the vehicle. The fact that he called the appellant the next day, to tell her where her vehicle was – in an impoundment facility – does not mean there was any less intention to deprive her of the vehicle, even if temporarily, when it was taken. I do not think the evidence supports a finding that the E.S. had the appellant's implied consent to take the vehicle, or that she otherwise acquiesced.

11Therefore, on these facts, I find that the vehicle was stolen within the meaning of s. 50.2(3)(a) of the HTA.

12Having made this determination, I need not consider the ground of exceptional hardship.

ORDER

13After considering the evidence provided, pursuant to the Tribunal's authority under s. 50.2(5) of the HTA, the Tribunal orders that the appellant's motor vehicle be released.