John Pilger v. Registrar of Motor Vehicles, 2021 CanLII 97257

Date: 2021-10-01

Appeal Under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c.H.8 from an Impoundment pursuant to Section 55.1 of the Act for driving while under suspension

Between:

John Pilger

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION and ORDER

ADJUDICATOR:

Katherine Livingstone, Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Sanjay Kapur, Agent for the Registrar

Heard by teleconference:

August 25, 2021

Overview

1On May 12, 2021, the appellant’s vehicle was impounded for 45 days, pursuant to s.55.5(1) of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the HTA). This section allows a police officer to detain and impound a motor vehicle being driven by a person whose licence has been suspended for certain offences under the Criminal Code of Canada. The impoundment period ended on June 26, 2021. The same day the appellant arranged to have the vehicle retrieved from the impound.

2The appellant appeals the impoundment on the following grounds:

a. the vehicle was stolen at the time it was detained in order to be impounded

b. the impoundment will result in exceptional hardship.

Result

3I find in the circumstances before me the appellant’s vehicle was stolen within the meaning of section 50.2 (3) (a) of the HTA. Having found it was stolen at the time of impoundment, it is not necessary for me to consider the ground of exceptional hardship. The respondent is ordered to release the vehicle.

Law

4Pursuant to s. 55.1 of the HTA, a vehicle shall be detained and impounded where the licence of the person driving the vehicle is under suspension.

5The owner of a vehicle that has been impounded may appeal the impoundment pursuant to s.50.2 of the HTA and request that the Tribunal order the Registrar to release the vehicle. In this case the vehicle has already been released. However, if I find one or more of the grounds of appeal have been met, as a practical matter, the respondent would be required to reimburse the appellant for the impound fees for the 45-day period of impoundment.

6The possible grounds for appeal are set out in s.50.2(3) (a)-(d) of the HTA. In this case the appellant relies on two of these grounds; paragraph (a),the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded and paragraph (d), the impoundment will result in exceptional hardship

7The appellant bears the onus of establishing, on the balance of probabilities, one of these grounds.

Evidence

8The respondent presented documentary evidence which established:

a) the appellant is the registered owner of the impounded vehicle

b) on May 12, 2021 the vehicle was stopped while being driven by a person whose licence was suspended as a result of a Criminal Code conviction

c) the vehicle was impounded pursuant to s. 55.1 of the HTA

d) the vehicle was eligible for release on June 26, 2021

9The respondent called the police officer who detained the driver to give evidence at the hearing. He testified he stopped the vehicle about 3:40 a.m. for a document check. In conversation with the driver, Mr. Griffin, the officer asked for his licence and Mr. Griffin told him he didn’t have one. Mr. Griffin said he had permission to drive the vehicle. The officer recognized Mr. Griffin from previous encounters and proceeded to confirm he was a suspended driver. Mr. Griffin was then arrested for driving while prohibited and the vehicle was impounded.

10The officer said the appellant came to the police station the next morning and mentioned that his vehicle had been taken, however he did not wish to give a statement regarding the taking of the vehicle. It was only on July 6, 2021 that the appellant went to the station to report the vehicle stolen.

11The appellant testified that prior to May 12, 2021, he was renting a room where Mr Griffin also resided. He had known Mr. Griffin for 3-4 years, knew he did not have a licence and had never let him drive his vehicle.

12The appellant said he normally kept his keys in his pocket. He did not give Mr. Griffin permission to take his car.

13He found out the car had been impounded later in the morning of May 12. He moved out of the rental house shortly thereafter because of what happened.

14The appellant is semi retired and for income relies mostly on a pension, although he does do some work in stone sales and landscaping. During the time of the impoundment he lived with his daughter and relied on her and on taxis for transportation. He missed a scheduled specialist appointment, however was able to re-book it within 2 weeks. He missed out on some employment due to the lack of a vehicle. He said going without a vehicle during the time of the impoundment was “inconvenient”.

15I found the appellant to be straightforward and guileless when giving his evidence. He appeared somewhat naïve and I accept his evidence in its entirety.

16The appellant’s daughter, Lisa Pilger, also testified. It was clear from her evidence that when she found out about the impoundment, she believed her father had been taken advantage of. She took matters into her own hands and made inquiries about the incident that she felt would assist her father, including speaking to the investigating officer. She testified the officer said he didn’t believe the vehicle was stolen and even if Mr. Pilger gave a statement saying it was stolen it didn’t mean he would get his truck back.

17Ms. Pilger then contacted Mr. Griffin by phone and audio taped a conversation with him. The taped conversation was played during the hearing. It did not appear as if Mr. Griffin knew he was being recorded. Mr. Griffin admitted he had taken Mr. Pilger’s keys and vehicle without his knowledge or consent. He said he felt badly about what had happened and he was thinking about going into the police station to give a statement and “take another charge”. After the phone call Mr. Griffin sent a text saying he would not be going to the police.

18I found Ms. Pilger’s evidence convincing and corroborative of her father’s. I am satisfied Mr. Pilger did not consent either explicitly or implicitly to Mr. Griffin taking his vehicle.

Was the Vehicle Stolen?

19The appellant argued that has he had not given permission to Mr Griffin to take either his keys or his vehicle, the vehicle was stolen at the time it was stopped and thereafter impounded.

20The respondent’s agent, while acknowledging the vehicle was taken “without express consent” argued that I could find “implied consent “from the long association between the appellant and Mr. Griffin. He further argued Mr Griffin was not going to deprive the appellant permanently but only temporarily. He submitted that the case could be “parsed into two parts. One is the taking of the car and two is the intent to deprive the appellant of the car”. The key, he said, was the intention of the driver and pointed to the fact the driver was apparently headed in the direction of the rooming home where he and the appellant both resided, as evidence that the deprivation was only going to be temporary and therefore not within the meaning of stolen. I do not agree with these submissions.

21The HTA does not define the term “stolen”.

22In the Criminal Code of Canada, “to steal” is defined as “to commit theft”. The offence of theft is then described in s. 322 as:

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

(a) 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 [Emphasis added]

23In Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745, the Divisional Court held that the Tribunal should not limit the meaning of “stolen” in impound appeals to only to an intention to take the vehicle permanently. The Court stated the following:

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. (italics added)

24The factual underpinnings in the Marshall case are similar to the circumstances of this case. In Marshall, the car was impounded after an unlicenced driver took keys from a purse without permission and drove the car while the owner was asleep.¹

25The test for whether a vehicle is stolen is fact specific. There is no requirement the car be reported stolen to the police, although it is a factor that can strongly militate in favour of finding the vehicle to be stolen. In this case, although late in the process, Mr Pilger did report the vehicle stolen. I attribute the delay due to a lack of understanding and sophistication on his part with respect to the whole process.

26I find in the circumstances the appellant’s vehicle was stolen at the time it was stopped and thereafter impounded. I accept that the driver took the car without the owner’s permission and had an intent to deprive him of the vehicle at least temporarily.

27As a result of this finding, it is not necessary for me to consider whether the impoundment resulted in exceptional hardship.

Order

28For the reasons set out above, the appeal is granted and the respondent is ordered to release the appellant’s motor vehicle.

Footnotes

1. 12001 CanLII 39007 (ONLAT)