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:
Joey Baird
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Colin Osterberg, Member
APPEARANCES:
For the Appellant: Joey Baird, Self-represented
For the Respondent: Sonia De Santis, Agent
Heard by Teleconference: August 10, 2021
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant, Joey Baird (the “appellant”), appeals the impoundment of his motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “HTA”). The appellant’s motor vehicle was impounded on June 30, 2021. At the time of the impoundment, the driver, Jason Johnston (“Johnston”), was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.
2The appellant appeals on the ground that the vehicle was stolen at the time it was detained in order to be impounded.
3For the reasons set out below, the appeal is successful, and the Tribunal orders the Registrar to release the vehicle.
ISSUE TO BE DETERMINED
4The issue to be determined in this appeal is whether the vehicle was stolen at the time it was detained in order to be impounded and so should be ordered to be released in accordance with section 50.2(3)(a) of the HTA.
EVIDENCE AND ANALYSIS
5The respondent presented evidence which establishes that:
a) the appellant is the registered owner of the impounded vehicle, a 2016 Dodge Caravan.
b) on June 30, 2021, the police discovered the impounded vehicle being driven by Johnston.
c) Johnston’s licence was under suspension at the time it was detained for the purpose of impoundment. It had been suspended multiple times starting in 1997 for various offences. Johnston’s driving record indicates that his licence expired on February 18, 2005. Since then, Johnston has had multiple driving offences.
6The evidence at the hearing was that the appellant’s vehicle was in the care and control of his ex-wife, Charity Eversfield, at the time it was taken. Ms. Eversfield is the beneficial owner of the vehicle and she has had possession of the vehicle for the last 3 years. The vehicle registration had not been transferred to Ms. Eversfield by the time of the impoundment.
7According to Ms. Eversfield, Johnston had asked her to help him move using the impounded vehicle and she agreed to do so. She had known Johnston since she was a child and he is the appellant’s cousin. Ms. Eversfield knew that Johnston has a troubled past and that his licence had been suspended for many years. Ms. Eversfield knew that Johnston has a long criminal record as well, and that he had just recently been released from prison before the day she helped him move.
8After moving Johnston’s belongings to his new apartment in Newmarket, and while Ms. Eversfield was helping him unpack in the apartment, she received a phone call from the police advising her that Johnston had just been arrested while driving her vehicle and that the vehicle had been impounded. Until then, she did not know that Johnston had left the apartment or that he had taken her vehicle. Ms. Eversfield had left her keys in her purse, which was left in the kitchen while she was in another room unpacking.
9According to Ms. Eversfield, Johnston did not ask to use the vehicle and, if he had asked, she would never have allowed him to drive the vehicle. Ms. Eversfield says she had no idea what Johnston intended to do with the vehicle or when he intended to return it. The appellant testified that Johnston told him that he took the vehicle to go to the store to buy cigarettes and that he intended to return to the apartment after doing that.
10According to the appellant, the police asked him whether he wished to pursue criminal charges and he declined to do that. The appellant explained this by saying that, although he is not close with Johnston, he is family and so did not want to get him in that kind of trouble. In addition, the appellant says that Johnston is a large, scary person and that he believes Johnston to be mentally unstable. The appellant stated that Johnston has a long criminal record with a history of violence and the appellant did not want to do anything that might cause Johnston to become violent.
11I found both the appellant and Ms. Eversfield to be credible witnesses. The Registrar did not suggest that the events were not as they described.
Was the vehicle stolen?
12In Marshall v. Ontario (Registrar of Motor Vehicles)1 (“Marshall”), the Divisional Court states as follows:
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.
13This definition creates a two-part test which the appellant must prove in order to establish that the vehicle was stolen:
- Was the vehicle taken without the owner’s consent; and
- Did the perpetrator intend to deprive the owner of it either permanently or temporarily?
14The Registrar argues that the vehicle was not stolen at the time it was detained for the purpose of impoundment. The Registrar says that there is no evidence that Johnston intended to deprive Ms. Eversfield of the vehicle either permanently or temporarily and that he simply borrowed the vehicle to run an errand and intended to return it to Ms. Eversfield before she knew it was missing. The Registrar argues that the appellant has therefore failed to prove the second element in the test set out in Marshall: that Johnston intended to deprive the owner of the vehicle either permanently or temporarily.
15The Marshall decision was a brief endorsement in which the Divisional Court found that a vehicle had been “stolen” for the purposes of s. 50.2(3)(a) of the HTA where the driver took the keys from the purse of a person to whom the owner had entrusted the vehicle, and where the driver intended to return the vehicle after he had run some errands and before anyone knew he had taken the vehicle. The Divisional Court stated that the Tribunal’s finding that the vehicle was not stolen on those circumstances was patently unreasonable.
16I do not accept the Registrar’s position that Johnston did not intend to deprive the owner of the vehicle. As the Divisional Court determined in Marshall, such circumstances amount to an intention to deprive the owner of the vehicle temporarily and amount to the vehicle having been “stolen” for the purposes of s. 50.2(3)(a) of the HTA.
17The facts in the present case are indistinguishable from Marshall and I find that Johnston took the vehicle without the owner’s consent and with the intent to deprive the owner of the vehicle either permanently or temporarily.
18I find that the appellant has proven on a balance of probabilities that the impounded vehicle was stolen at the time it was detained in order to be impounded.
ORDER
19For the reasons set out above, the Tribunal orders the Registrar to release the appellant’s vehicle.
LICENCE APPEAL TRIBUNAL
Colin Osterberg, Member
RELEASED: August 25, 2021