Ellen Wood v. Registrar of Motor Vehicles, 2021 CanLII 97085

Date: 2021-09-28

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:

Ellen Wood

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Colin Osterberg, Member

Appearances:

For the Appellant: Drew-Jordan Maharaj, Counsel

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: September 20, 2021

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellant, Ellen Wood (the "appellant"), appeals the impoundment of her motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the "Act"). The appellant's motor vehicle was impounded on August 15, 2021. At the time of the impoundment, the driver was driving the vehicle with a suspended driver's licence. A Notice of Impoundment was issued for a period of 45 days.

2The appellant appeals on the grounds that the vehicle was stolen at the time it was impounded, that she exercised due diligence in attempting to determine that the driver's licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension, and that the impoundment will cause exceptional hardship.

3For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.

ISSUES TO BE DETERMINED

4The first issue to be determined in this appeal is whether the vehicle was stolen at the time it was detained in order to be impounded in accordance with section 50.2(3)(a) of the Act.

5The second issue to be determined is whether the appellant exercised due diligence in accordance with section 50.2(3)(c) of the Act.

6The third issue to be determined is whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

EVIDENCE AND ANALYSIS

7The respondent presented evidence, which establishes that:

(1) the appellant is the registered owner of the impounded vehicle, a 2014 Honda Flex;

(2) on August 15, 2021, the police discovered the impounded vehicle being driven by Taylor Frenette ("Frenette");

(3) Frenette's licence expired on May 24, 2010. Despite that, Frenette continued to drive and he incurred several more driving infractions and suspensions. His licence was still expired and under suspension for Criminal Code-related offences when the vehicle was impounded on August 15, 2021.

8The appellant did not give evidence at the hearing. Her daughter, Aislinn Wood, testified that the impounded vehicle was not owned by her mother, the appellant, but by herself. Aislinn purchased the vehicle from her mother and pays all the costs associated with the operation of the vehicle. Although the vehicle remains registered in the appellant's name, Aislinn is the beneficial owner and primary driver of the impounded vehicle.

9Aislinn testified that, when she purchased the vehicle, her mother did not give her any instructions with respect to the use of the vehicle. Aislinn did not allege at the hearing that her mother instructed her that she was not to allow anyone else to operate the vehicle. Given that Aislinn was an owner of the vehicle, I find that Aislinn had authority to consent to the use of the vehicle by others. I also find it likely that, from Frenette's perspective, Aislinn was the actual owner of the vehicle, and there would have been no reason for him to believe that he would have needed anyone's permission, other than Aislinn's, to use the vehicle.

The Vehicle was not Stolen

10During the school year, Aislinn lives in Belleville where she attends college. She lives with her parents in Midland during the summer break. In the summer of 2021, Aislinn worked at the Fern Resort in Ramara.

11Frenette also worked at the Fern Resort in the summer of 2021. About two months before the impoundment, Aislinn and Frenette met and began a romantic relationship. Frenette regularly stayed overnight with Aislinn at her parents' house in Midland. He was regularly allowed by Aislinn to drive the impounded vehicle, both while Aislinn was with him and on his own. On a regular basis, Frenette would leave the house before Aislinn awakened, take the vehicle without asking, get food from McDonald's or elsewhere, and return with the food for him and Aislinn to have for breakfast.

12On the date that the vehicle was impounded, Aislinn awakened and drove to the hospital to pick up Frenette who had gone there for reasons unrelated to this appeal. They then went to the Fern Resort where they arrived at about 8:00 am. Aislinn had to work that day but Frenette did not. He asked Aislinn if he could take the vehicle to go to his father's house in Orillia to drop off something and she agreed. Aislinn found out when he returned that Frenette had driven the vehicle to Toronto to see his lawyer.

13Aislinn states that, when she found out Frenette had taken the vehicle to Toronto, she was angry and disappointed. She told Frenette that he could not lie to her and that, in the future, if he was going to take the car, he would have to ask first and tell her where he was going.

14The same evening, Aislinn and Frenette drove to Orillia where she was to play ball hockey at the Orillia Ball Hockey Association. Before the game started, Aislinn gave Frenette the keys to the vehicle so that he could sit in it if he got cold. While she played ball hockey, Taylor drove the vehicle to McDonald's and was returning to the ball hockey venue when he left the road, entered a ditch, and was unable to extricate the vehicle. The police were called and Frenette was arrested for impaired driving. The vehicle was impounded at that time.

15According to Constable MacKenzie Roy, who participated in the investigation of the accident, two McDonald's drink cups were found in or around the vehicle, as well as a bag of McDonald's food. Aislinn agreed that Frenette was probably bringing the food back for the two of them to eat together.

16While the police were at the scene of the accident, Aislinn arrived in a friend's vehicle and spoke briefly with the police. She told them that she was the owner of the vehicle and that Frenette was her boyfriend. Aislinn did not tell the police that the vehicle had been taken without her consent. According to Sergeant Joe Pileggi, the police officer in charge of the accident investigation, Aislinn was asked whether the vehicle had been stolen, and she denied that it had been and refused to provide a statement

17According to Aislinn, she is still in a relationship with Frenette and has not reported to the police that the vehicle was stolen. At the hearing, Aislinn testified that she does not consider the vehicle to have been stolen at the time it was impounded. Rather, she says that Frenette took the vehicle without her permission. When asked her view of the difference, she said that she would consider the vehicle to have been stolen if Frenette stole the keys from her or took the vehicle somewhere far away without her permission.

18The test for determining whether a vehicle has been stolen is set out by the Divisional Court in Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745 ("Marshall") which 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.

19The appellant argues that, by taking the vehicle after Aislinn had specifically told him that he was to ask permission from her before using the vehicle, the vehicle was stolen. For the following reasons, I find that the appellant has failed to prove that the vehicle was stolen for the purposes of s. 50.2(3)(a) of the Act.

20I do not accept Aislinn's evidence that she told Frenette that he was not to use the vehicle without her permission. In the past, Aislinn allowed Frenette to routinely use the vehicle with and without her permission. He regularly took the vehicle to get food in order to return and eat together with Aislinn. The morning of the impoundment, Aislinn allowed Frenette to take the car to Orillia. She was angry because he had taken it to Toronto instead. I do not accept that Aislinn made a blanket prohibition with respect to Frenette using the vehicle. At the ball hockey game, Aislinn gave Frenette the keys to the vehicle. Frenette, as he had done regularly in the past, went to McDonald's to get food and drinks for himself and Aislinn.

21It does not make sense that Frenette would have gone to McDonald's if he thought Aislinn had prohibited him driving anywhere. He knew that she would find out that he had taken the car almost immediately because some of the McDonald's food was for her. Aislinn did not allege that Frenette would typically disregard her instructions so brazenly, and I find that Aislinn's prohibition did not extend to using the vehicle to get them both food from a nearby McDonald's as was their regular routine.

22I find that, at the time the vehicle was detained in order to be impounded, it was in the possession of Frenette with the implied consent of Aislinn. This conclusion is supported by the fact that Aislinn never reported the vehicle stolen to police and at the hearing testified that she never considered the vehicle to have been stolen.

23While the appellant raised several arguments in support of the allegation that the vehicle was stolen for the purposes of the Act, all of those arguments are dependent on a finding that the vehicle was taken without the consent of Aislinn. I have found that this has not been proven and so do not have to deal with the appellant's other arguments.

24I find that the vehicle was not stolen at the time it was detained in order to be impounded.

Due Diligence

25Aislinn argues that neither she nor the appellant knew that Frenette's licence was suspended before the vehicle was impounded. Aislinn testified that, before the day the vehicle was impounded, she had seen Frenette drive on many occasions and he was a capable driver on those occasions. In addition, Frenette offered to drive the vehicle regularly before the day of the impoundment the vehicle. On this basis, Aislinn assumed that Frenette had a valid licence on the day of the impoundment.

26The evidence at the hearing was that Aislinn never specifically asked Frenette whether or not he had a valid licence and never asked to see, or was shown, a valid licence by Frenette.

27This ground of appeal requires the appellant to show that she took reasonable steps to determine that the suspended driver's licence was not suspended. In this context, due diligence required more than making assumptions of the facts. It required steps to be taken to confirm that the driver's licence was not suspended and that it was valid. Under this ground of appeal, due diligence typically, at a minimum, requires the owner to have asked to see a licence that is valid on its face, before permitting the driver to drive the car.

28Aislinn had no reasonable basis to believe that Frenette had a valid licence when she allowed him to drive the impounded vehicle, and the steps she took to determine whether Frenette had a valid licence were inadequate to satisfy the test for due diligence in the circumstances. The mere fact that Aislinn saw Frenette drive competently in the past is irrelevant to the status of his driver's licence.

29There was no evidence presented at the hearing that the appellant took any steps to determine whether Frenette had a valid licence at the time the vehicle was impounded. Although the Registrar took the position that it is the appellant's actions, as the registered owner, and not Aislinn's as beneficial owner, that are relevant in the determination of the issue of due diligence, I do not have to decide that issue since I have concluded that neither Aislinn nor the appellant exercised due diligence in any event.

30I find that it has not been proven that Aislinn or the appellant exercised due diligence in attempting to determine that Frenette's driver's licence was not under suspension when the vehicle was detained in order to be impounded.

Exceptional Hardship

31Section 10 of O. Reg. 631/98 under the Act (the "Regulation") sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.

32Subsection 10(1) requires the Tribunal to first consider whether an alternative to the impounded vehicle is available. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

[T]he owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.

33If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under s. 50.2(3)(d) of the Act will fail. Only where the owner has established that there is no alternative available is the Tribunal able to consider whether the impoundment will result in exceptional hardship.

34The evidence presented at the hearing shows that the appellant owns two vehicles in addition to the one that was impounded. Both of those vehicles would ordinarily have been available for Aislinn's use; however, according to Aislinn the appellant refused to allow Aislinn to use them because of the events surrounding the impoundment.

35There was no allegation made, and no evidence presented, that the appellant has suffered any hardship as the result of the impoundment.

36Had the vehicle not been impounded, Aislinn intended to continue working at Fern Resort until school started in September. She intended use the impounded vehicle to move to Belleville at that time to continue college.

37Aislinn was able to get to Belleville by having her parents drive her there.

38Aislinn alleges that, because she no longer had her own vehicle, she was unable to drive to work at the Fern Resort and so she quit that job. As noted, Aislinn says that her mother, the appellant, did not allow her to use any of the other vehicles in the household.

39I find that there was an alternative to the impounded vehicle available. Aislinn's parents drove her to school. The fact that the appellant chose not to allow Aislinn to use her other vehicles for work does not result in a finding that there was no alternative to the impounded vehicle. The appellant simply chose not to employ that alternative.

40No other hardship caused by the impoundment was alleged by the appellant or Aislinn.

41I find that the appellant has not proven that there are no alternatives to the impounded vehicle available and her appeal under s. 50.2(3)(d) of the Act must fail as a result. I therefore need not make determinations with respect to the remaining components of the exceptional hardship test. Although the impoundment may have resulted in inconvenience, the appellant has failed to prove exceptional hardship under the Act and her appeal must fail on this ground.

ORDER

42For the reasons set out above, the impoundment of the appellant's vehicle is confirmed.