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:
Brian Busey
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISON AND ORDER
ADJUDICATOR: Laura Hodgson, Member
APPEARANCES:
For the Appellant: Brian Busey, Self-Represented
For the Respondent: Stephen Grootenboer, Agent
Held by teleconference: November 18, 2022
Overview
1The appellant’s 2013 Hyundai was detained and impounded on October 15, 2022, for 45 days under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “Act”). This section allows a police officer to detain and impound a motor vehicle if the driver’s licence of the driver is suspended for a Criminal Code-related reason. In this case, the appellant’s friend, who had a suspended licence due to a Criminal Code drinking and driving offence, was driving the appellant’s vehicle.
2The appellant appeals the impoundment on the following grounds pursuant to s. 50.2 of the Act:
50.2(3) (c) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded; and
50.2(3) (d) that the impoundment will result in exceptional hardship.
3The appellant has the onus to establish, on the balance of probabilities, that one of these grounds has been met.
4Based on the evidence presented at the hearing, and for the reasons given below, I find that the appellant failed to establish on a balance of probabilities that the vehicle was stolen or that the impoundment will result in exceptional hardship. The appeal is dismissed, and the impoundment confirmed.
1) Has the Appellant established that the vehicle was stolen?
5The appellant testified that he had been drinking with his friend who took his vehicle on the night of the impoundment. After he went to bed, he received a call from his friend advising him that his car had been impounded. The appellant testified that he believed that his friend had driven to his girlfriend’s house and was returning to the appellant’s house when stopped by police.
6The appellant arranged for someone to drive him and his 19-year-old son to retrieve the vehicle. The appellant acknowledged that he was intoxicated at the time and, in retrospect, should not have tried to retrieve his vehicle that night. He states that he told a police officer at the site that his car had been taken without his consent. He recalls being told that he could be charged with mischief. The appellant testified that he never reported the car stolen as he feared being charged.
7In cross examination, the appellant acknowledged that when speaking to the police that night he initially told them that he had previously seen a copy of his friend’s license.
8The appellant’s son testified that he and his father had been drinking with the friend that night. After they were asleep the car was taken without permission.
9Ontario Provincial Police Officer Andrew Gibbons testified that on October 15, 2022, he was running a RIDE check (a police program to reduce impaired driving infractions) in Quinte West. At 10:18 p.m. he stopped the driver of the appellant’s vehicle. It was determined that the driver had an open can of liquor in the vehicle console and did not have a valid licence. The driver was arrested for driving while under prohibition. The driver indicated that the vehicle belonged to a friend, and he was returning to his house. The driver was advised that the vehicle would be impounded and he was allowed to make alternative transportation arrangements.
10A short time later the appellant attended the scene. Officer Gibbons noted that the appellant was intoxicated. The officer testified that when he told the appellant that the car would be impounded the appellant indicated that he had previously seen a copy of his friend’s licence. The officer then requested that the driver show him the licence. The officer noted the licence to be tattered and expired.
11Officer Gibbons advised the appellant that his car had to be impounded unless it was stolen. The officer testified that, at this point, the appellant immediately tried to persuade the driver to admit to stealing the vehicle. According to Officer Gibbons, prior to this, there had been no mention that the vehicle had been stolen. Officer Gibbons testified that another officer then cautioned the appellant that he could be charged with mischief if he made a false report.
12On October 24, 2022, Officer Gibbons delivered the Notice of Impoundment to the appellant’s home. At that time, he advised the appellant that, if he wished to report the vehicle stolen, he was to contact the Military Police as the matter was in their jurisdiction. The vehicle was not reported stolen.
13The HTA does not define the term “stolen”. In 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:
14In Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745, the Divisional Court held that, in the impoundment context, a vehicle is “stolen” when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.
15The test for whether a vehicle is stolen is highly fact specific. In the circumstances of this case, the appellant has not established, on a balance of probabilities, that the vehicle was stolen. Both he and his son acknowledge drinking with the driver on the night in question. The appellant’s son testified that he was asleep when the vehicle was taken. Both the appellant and the police officer testified that the first thing the appellant discussed when arriving at the RIDE stop was that he believed his friend, the driver, had a licence. This, in my view, is not indicative of someone who believes that their car has just been stolen. Based on the officer’s evidence, which I accept, the appellant only alleged the vehicle was stolen after it was mentioned by police. In all of the circumstances, it has not been established on a balance of probabilities that the appellant’s vehicle was stolen.
2) Has the appellant established that that the impoundment will result in exceptional hardship?
16The appellant testified that he has had significant financial issues and recently declared bankruptcy. No documentation was provided. The appellant currently works as an aircraft mechanic and travels throughout the country with his job. He testified that he lives approximately 7 kilometers from his work site. Following the impoundment, he took several weeks leave and is now either walking or taking a cab to work.
17The appellant has a number of registered vehicles. He testified that he recently sold one of them to help pay the impoundment fees. He testified that the other plated vehicle is not operable and is only used for storage.
18The test for exceptional hardship is set out in O. Reg. 631/98 (the Regulation), a regulation made under the Highway Traffic Act. In accordance with s. 10 of the Regulation, in determining exceptional hardship, the Tribunal must first determine if the appellant has an alternative to the impounded vehicle.
19In order to show that no alternative vehicle is available, s. 10(4) of the Regulation requires the owner demonstrate that every reasonable option has been considered and inquired into that could mitigate or eliminate a threat or loss. This includes using another vehicle and making arrangements to do without a vehicle. If the owner fails to demonstrate the lack of an alternative to the impounded vehicle, then this ground of appeal cannot succeed.
20Sections 10 (2) and 10 (3) of the Regulation set out factors that may or may not be considered by the Tribunal in certain circumstances. The Tribunal cannot consider “inconvenience to any person” (ss. 10 (2) (a) and (3)).
21The appellant has not established that he does not have an alternative to his impounded vehicle as set out in s. 10 (4) of the Regulation. Since the impoundment, he has taken leave from work, walks and takes taxis. While clearly not ideal, the appellant does have alternative means of transportation. As a result, the applicant has not established “exceptional hardship”.
Conclusion and Order
22In all the circumstances, the appellant has not established that the vehicle was stolen or that the impoundment will result in exceptional hardship.
23The Tribunal confirms the impoundment of the appellant’s motor vehicle.
LICENCE APPEAL TRIBUNAL
_______________________
Laura Hodgson, Member
Released: November 22, 2022