Robin L. Kirchen v. Registrar of Motor Vehicles, 2022 CanLII 4511

Date: 2022-01-18

File Number: 13715/MVIA

Appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to Section 55.1(3) of the Act

Between:

Robin L. Kirchen

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Jacqueline Castel

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Stephen Gootenboer, Agent

Heard by Teleconference: January 17, 2022

REASONS FOR DECISION AND ORDER

OVERVIEW:

1A teleconference hearing was held on January 17, 2022 to consider the appellant’s appeal of the impoundment of her motor vehicle, a 2010 Nissan Sentra (the “vehicle”). The vehicle was impounded, on November 2, 2021, for a period of 45 days, because the driver’s licence was under a Criminal Code suspension at the time of the impoundment.

2The 45-day impoundment period ended on December 17, 2021. The appellant is seeking reimbursement of the impoundment fees from the respondent, for the 45 day period of impoundment, on the grounds that (a) the vehicle was stolen when it was detained and impounded; and (b) the impoundment will result in exceptional hardship.

ISSUES:

3The issues to be determined are:

(i) Was the vehicle stolen at the time it was detained, in order to be impounded?

(ii) Does the ground of exceptional hardship apply to the appellant?

CONCLUSION:

4On the evidence before me at the hearing, I find that the vehicle was not stolen and that the impoundment did not result in exceptional hardship within the meaning of s. 50.2(3)(a) and (d) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act” or the “HTA”)

LAW AND ANALYSIS:

5The owner of a vehicle that has been impounded pursuant to s. 55.1(1) of the HTA, may appeal the impoundment under s. 50.2 and request an order that the Registrar release the vehicle.

6There are limited grounds on which an owner may appeal an impoundment as set out in section 50.2(3) of the HTA. The appellant in this case appealed on two grounds: (i) that the vehicle was stolen at the time of the impoundment; and (ii) that the impoundment resulted in exceptional hardship.

Stolen

7Section 50.2(3)(a) of the Act provides that a vehicle impoundment may be appealed if the vehicle was stolen at the time of the impoundment.

8The term “stolen” is not defined under the Act. In the absence of a definition under the Act, the meaning of stolen under the Criminal Code (Canada) (the “Code”) is instructive. Section 2 of the Code defines “steal” as “to commit theft”. Section 322(1) of the Code creates the offense of theft, which reads:

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.

1. 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.

9As such, in order for conduct to amount to theft, the perpetrator must intend to commit the act. In addition, the perpetrator must deal “fraudulently and without colour of right” with the subject matter, in this case the vehicle.

10The appellant testified that she was sleeping at the home of a friend (“CP”) when the vehicle was impounded. She testified that she spent the night at his house because her ex-boyfriend was at her apartment and refusing to leave. She stated that CP, who was also the driver of the vehicle at the time of the impoundment, did not have her permission to drive her vehicle. She stated that she did not know he had taken her vehicle when she received a call from the police telling her the vehicle had been impounded. She admitted that when she spoke to P.C. Troy Bellehumeur about the impoundment on November 2, 2021, she did not mention that she believed the vehicle had been stolen. She stated that she did not realize she needed to report the vehicle as stolen at this time.

11P.C. Bellehumeur testified that when he arrested CP for impaired driving and ordered the vehicle impounded, CP told him that the vehicle belonged to his girlfriend, Robin Kirchen. According to P.C. Bellehumeur’s testimony, CP and the male passenger in the vehicle told him they were on their way to Ms Kirchen’s apartment because her ex-boyfriend was refusing to leave, and their plan was to make him leave “one way or another”.

12P.C. Bellehumeur testified that he had two telephone conversations with Ms Kirchen, one on November 2, 2021 and another the following day. According to P.C. Bellehumueur, during the first conversation, he told Ms Kirchen that CP had been arrested for impaired driving and that her vehicle had been impounded. P.C. Bellehumeur stated that Ms Kirchen made no mention of the vehicle being stolen during this conversation. P.C. Bellehumeur testified that when he spoke to Ms Kirchen the following day, she alleged that CP stole her vehicle while she was sleeping at his residence. He stated that he did not believe the vehicle was stolen since Ms Kirchen said nothing about it being stolen in their earlier conversation the day before.

13The appellant has not satisfied me that CP took her vehicle on the date of the impoundment without her express or implied consent, since she was staying at his home when he took the vehicle and she did not mention to P.C. Bellehumeur that the vehicle was stolen during their initial conversation on November 2, 2021.

14Even if I accept that Mr. Penick did not have the appellant’s express or implied permission to use the vehicle, on the date of the impoundment, the definition of stolen, for the purpose of section 50.2(3)(a) of the Act, is more narrow than “taken without the owner’s consent”, whether express or implied. The words “taken without consent” are used in other sections of the Act. If it had been the legislative intent for section 50.2(3)(a) to be satisfied, when a vehicle is taken without consent or permission, this language would have been specifically used. The legislature, in using the word stolen, intended for the test to be higher and more stringent than merely “taken without the owner’s consent.”

15There was no evidence that CP intended to deprive (temporarily or permanently) the vehicle from the appellant. The appellant admitted that she was sleeping at Mr. Penick’s residence when Mr. Penick took her vehicle. As such, she did not need the vehicle when Mr. Penick took it. Based on P.C. Bellehumeur’s evidence, he took the vehicle to purportedly assist her with a situation with her ex-boyfriend, which also negates the notion that he intended to deprive her of the vehicle.

16For the above reasons, the evidence does not support a finding that Mr. Penick stole the vehicle, within the meaning of section 50.2(3)(a), when it was impounded.

Exceptional Hardship

17Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that must be considered in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement set out in 10(1) of the Regulation is that there is no alternative to the impounded vehicle. If I find that there is an alternative to the impounded vehicle, then I need not consider any other requirements.

18The appellant testified that she owns her own cleaning and property maintenance business and that many of her clients are Airbnbs. She stated that she uses her vehicle mainly for work. She acknowledged that she has been able to use taxis to get to some of the properties she looks after, but that it was too costly to use taxis to service three of the properties, which are located further away. As such, she indicated that she has lost some income due to the impoundment. She also stated that she does not have any savings to pay the impoundment fees.

19Ms Kirchen admitted that she is able to walk to the store to do groceries and other errands. When questioned about another vehicle (2003 Honda CRV) which is registered in her name, she stated that she gave this car to her father and he sold or gave it away.

20The appellant testified that she has faced other hardships associated with the partial lockdown of the economy in January 2022. She also stated that she has been unable to work in the last week because she contracted COVID.

21I have no doubt that the appellant has been very inconvenienced because of the impoundment. However, the evidence does not support a finding of exceptional hardship because she was able to continue working by taking taxis to some of the properties her business services. The appellant also does not require a vehicle for groceries or errands. Other difficulties the appellant has faced, relating to the partial lockdown in January 2022 and her health, are not associated with the impoundment and also occurred after the 45-day period of impoundment ended. Therefore, they are not relevant to the assessment of hardship under the Regulation.

22Under the Regulation, I can only consider financial or economic loss if the appellant can demonstrate that there is no alternative to the impounded vehicle, the loss will be immediate, significant and lasting, and the impact of the loss will be on a person ordinarily transported by the vehicle. While the appellant did have to discontinue servicing three properties, as taking a taxi to them was too expensive, she did not provide evidence that the impact would be significant or lasting. In fact, she indicated that she will be able to continue servicing two of the properties when her vehicle is released.

23Accordingly, for the above reasons, I find that the appellant has not established that the impoundment of her vehicle has resulted in exceptional hardship, as defined in the Regulation.

ORDER:

24Pursuant to subsection 50.2(5) of the HTA, I deny the appeal and confirm the impoundment.