DECISION AND ORDER
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 that Act
Between:
Duong Vong Appellant
and
Registrar of Motor Vehicles Respondent
Adjudicators: Jeffery Campbell, Vice-Chair Rupinder Hans, Member
Appearances: For the Appellant: Duong Vong, self-represented For the Respondent: Stella Velocci, agent
Heard by teleconference: November 22, 2022
1Duong Vong (the “appellant”) appeals the 45-day impoundment of his 2011 Chevrolet Express under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The vehicle was impounded on October 29, 2022. At the time of the impoundment, Ganesh Ram was driving the vehicle while his licence was under suspension resulting from a prescribed criminal conviction.
2The appellant appeals on the grounds that the vehicle was stolen at the time it was impounded and that the impoundment is causing exceptional hardship.
ISSUES TO BE DETERMINED
3Section 50.2 of the Act provides that the owner of an impounded vehicle may appeal the impoundment to the Tribunal. That section limits the grounds upon which the Tribunal can order the release of the vehicle. The appellant’s appeal is based on the following grounds allowed under 50.2 (3):
The first issue to be determined is whether the vehicle was stolen at the time of impoundment, under s. 50.2(3)(a) of the Act.
The second issue to be determined is whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.
RESULT
4For the reasons that follow, we find that the vehicle was stolen and, pursuant to s. 50.2(5), we therefore order the respondent to release the vehicle. We do not need to decide the ground of exceptional hardship.
ANALYSIS
Whether the vehicle was stolen at the time it was detained in order to be impounded
5The word “stolen” is not defined in the Act.
6The Divisional Court, in the case of Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745, has provided the following definition of “stolen” in the impoundment context. In that case, the Court stated that a vehicle is “stolen” within the meaning of the Act,
…when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.
7The burden is on the appellant to prove on a balance of probabilities that the vehicle was stolen.
8The respondent presented evidence, which establishes that:
a. the appellant is the registered owner of the 2011 Chevrolet Express in question (the “vehicle”) and a 2006 Toyota Sienna;
b. on October 29, 2022, the police discovered the impounded vehicle being driven by Ganesh Ram (“the driver”) in Kitchener, Ontario; and
c. Mr. Ram’s licence was under suspension following a conviction for a prescribed criminal offence at the time the appellant’s vehicle was detained for the purpose of impoundment.
9The appellant testified that he is employed as a renovator for Sam’s Renovations in Kitchener, Ontario. As part of his employment, the appellant uses the vehicle for transportation to and from the renovation sites and to transport the renovation tools. The appellant is paid extra for using his vehicle for work purposes.
10After his work hours, the appellant leaves the vehicle at the 3,000 square foot storage area at Sam’s Renovations and drives his second vehicle, the Toyota Sierra, to and from home. Because other workers may have need of the tools in the van, the appellant leaves the keys to the vehicle in a drawer in an office in the storage area. The appellant testified that he had told his co-workers, including the driver, that no one was to drive the vehicle.
11The appellant testified that, as usual, after work on October 28, 2022, he left the vehicle in the storage area with his keys in the drawer in the office. The following morning at approximately 9:00 a.m., he received a telephone call from the driver who told him that he had taken the vehicle and was caught. The appellant then went to the police station and asked for his van to be returned. He told the police that the driver had taken the vehicle without his permission. The appellant testified that he assumed that the police would charge the driver with theft of his vehicle but was not sure.
12At a later date, the driver advised the appellant that he had taken the vehicle because his father was sick.
13We find the appellant’s testimony to be credible and forthright, and we accept it.
14The respondent submits that, as the keys to the vehicle were not in a locked or supervised location and were accessible to other employees, and that, as the appellant did not know if the driver was charged with theft of the vehicle, the vehicle was, indeed, not stolen.
15With respect to the keys being in an accessible location at the workplace, we are not persuaded that by storing the keys to the vehicle in a drawer in the office, the appellant was consenting to the vehicle being taken. In a workplace environment, any number of items are available for the taking to employees who wish to act nefariously. For example, computers, photocopiers, and office supplies are commonly available in most offices. However, the availability of such items hardly authorizes an employee to walk out with them. We find there to be little difference here in the context of the driver taking the appellant’s vehicle without permission.
16We also do not agree that the appellant’s uncertainty as to whether the police charged the driver with theft of the vehicle means that the vehicle was not stolen. The appellant’s testimony was that he informed the police that the driver had taken the vehicle without his permission. That, rather any subsequent knowledge of how the police followed up with that information, is evidence that the appellant considered his vehicle as having been stolen.
17Given all of the above, we find, on a balance of probabilities, that the driver took the appellant’s vehicle without his consent or permission with the intent of depriving the appellant of it. In the context of this case, this taking amounts to the driver having stolen the vehicle. The vehicle should therefore be released.
18Having made this determination, there is no need for us to consider the ground of exceptional hardship.
ORDER
19On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the appeal is allowed, and the respondent is ordered to release the appellant’s motor vehicle.
LICENCE APPEAL TRIBUNAL
Jeffery Campbell, Vice-Chair
Rupinder Hans, Member
Released: November 24, 2022