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:
Michael Ott
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Colin Osterberg, Member
Appearances:
For the Appellant: Michael Ott, Self-represented
For the Respondent: Leila Pereira, Agent
Heard by Teleconference: May 3, 2022
REASONS FOR DECISION AND ORDER
OVERVIEW
1Michael Ott (the “appellant”) appeals the impoundment of his 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 March 24, 2022. At the time of the impoundment, the driver was driving with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.
2Although the Notice of Appeal does not specify the grounds on which the appeal is based, I have considered all of the allowed grounds of appeal, that is, that the vehicle was stolen, that the appellant 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.
3The Registrar’s representative at the hearing stated that her understanding was that the appeal would be proceeding on the due diligence and exceptional hardship grounds only and that understanding is reflected in the Case Conference Report and Order. The Registrar’s representative was asked whether she objected to including the stolen ground for consideration, and she said that she did not object.
4For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.
ISSUES TO BE DETERMINED
5The 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.
6The second issue to be determined is whether the ground of due diligence under section 50.2(3)(c) of the Act is available to the appellant.
7The 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
8The respondent presented evidence which establishes that:
(1) the appellant is the registered owner of the impounded vehicle, a 2015 Hyundai;
(2) on March 24, 2022, the police discovered the impounded vehicle being driven by Pavel Braoun; and
(3) Mr. Braoun’s licence was under suspension for a criminal conviction at the time it was impounded.
The vehicle was not stolen
9A vehicle is “stolen” in the context of s. 50(3)(a) 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.1
10On the day of the impoundment, the appellant loaned his vehicle to his friend, Summer Burns, so that she could pick up her son at school. At the time, Summer and her son were living with the appellant and his wife temporarily. Summer’s son attended school in another city and Summer’s own vehicle was not as reliable as the appellant’s.
11Summer’s boyfriend, Mr. Braoun, traveled with Summer to pick up her son. The appellant knew that Mr. Braoun did not have a driver’s licence and that Summer was aware of this. He had seen Mr. Braoun driving Summer’s car occasionally, and was concerned that she might allow Mr. Braoun to drive his as well. Therefore, he made Summer promise that she would be the only driver of the vehicle as a condition of allowing her to use it that day. He also told Mr. Braoun that he was not permitted to drive the vehicle.
12The appellant says that, although Summer started the trip as the driver, Mr. Braoun began driving at some point. While Mr. Braoun was driving with Summer as passenger, the vehicle was stopped by the police and impounded.
13The circumstances described by the appellant indicate that, although the vehicle was being driven by Mr. Braoun without the appellant’s consent, it had not been taken without his consent for the purposes of the analysis under Marshall. Possession of the vehicle was given by the appellant to Summer, and she was still present in the vehicle when it was stopped and impounded. Moreover, neither Mr. Braoun nor Summer intended to deprive the appellant of the vehicle. It was being used for the purpose the appellant intended when he loaned the vehicle to Summer, albeit in a way that the appellant did not intend.
14Auto Zone & Rentals Inc. v. Registrar of Motor Vehicles2 is a reconsideration decision of the Tribunal in which the appellant rented a vehicle to an individual after verifying that the renter had a valid driver’s licence and emphasizing to them that only persons included on the rental agreement were authorized to operate the vehicle. The renter allowed a person whose licence was suspended to drive the vehicle and the vehicle was impounded.
15The Tribunal in Auto Zone held that the vehicle was not stolen within the meaning of s. 50.2(3)(a) and that interpreting “stolen” to include the use of property contrary to the owner’s instructions broadens its meaning beyond the ordinary meaning of the term and beyond a meaning that can be supported by the language of the legislation. Auto Zone has been consistently followed in subsequent Tribunal decisions and I find that it applies in the present circumstances.
16Although I am not bound by Auto Zone or the Tribunal decisions which follow it, I agree with its conclusion and find that “stolen” in s. 50.2(3)(a) does not mean the use of a vehicle contrary to the appellant’s instructions.
17I am not satisfied that the circumstances of this case satisfy the definition of “stolen” as set out in Marshall. I also find that the use of the vehicle in a way that was contrary to the appellant’s instructions, by allowing Mr. Braoun to drive, does not fall within the meaning of “stolen” for the purposes of the relevant section of the Act.
18Therefore, I find that the impounded vehicle was not stolen when it was detained for the purpose of impounding it and the appellant’s appeal under s. 50.2(3)(a) must fail.
Due diligence
19This ground of appeal requires the vehicle owner to show that he took reasonable steps 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.
20The driver at the time the impounded vehicle was detained was Mr. Braoun, and the appellant knew he did not have a valid licence. The appellant’s position is that he satisfied his obligation to exercise due diligence when he determined that Mr. Braoun was unlicensed and forbade him from driving the impounded vehicle when he allowed Summer to use it on the day of the impoundment.
21There have been Tribunal decisions which have considered similar facts, and which have determined that an appellant has exercised due diligence by verifying the licence of the individual to whom they gave care and control of the vehicle and by making it clear that the suspended driver was not to drive.3
22However, there are also Tribunal decisions in which the Tribunal has concluded that the due diligence ground of appeal is not available to the appellant in such circumstances on the basis that the owner cannot practically prevent an unlicensed individual from driving the vehicle once they have relinquished control over the vehicle.4
23The Tribunal is authorized to order the Registrar to release an impounded vehicle only where the appellant has established one of the limited grounds of appeal set out in s. 50.2(3). In the present case, the appellant asks the Tribunal to determine that due diligence under s. 50.2(3)(c) includes circumstances where the owner loans his vehicle to a person with a valid licence and forbids an individual whose licence the appellant knows is suspended, from driving the vehicle.
24In my view, the language of s. 50.2(3)(c) cannot be interpreted to include those circumstances. The section provides for an appeal where the owner uses due diligence as it pertains to the licence status of the intended driver of the vehicle. It does not contemplate an appeal where the owner exercises due diligence with respect to persons who do not have a valid licence and who are prohibited from driving the vehicle. It also does not stipulate that there may be an appeal where due diligence is exercised with respect to a person who is not driving at the time the vehicle is impounded.
25I find that the ground of due diligence is intended to apply to circumstances where the individual who was driving at the time of impoundment is an individual who the owner permitted to drive the vehicle. It is not intended to apply to circumstances where the original borrower of the vehicle allows someone to drive who the owner has forbidden to drive.
26I find that due diligence is not a ground of appeal available to the appellant in the circumstances and his appeal pursuant to s. 50.2(3)(c) of the Act must fail.
Exceptional Hardship
27Section 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.
28Subsection 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.
29If 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.
30If the owner proves that there is no alternative to the impounded vehicle available, then s. 10(1) of the Regulation requires the Tribunal to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle, or to the environment or community in whose service the motor vehicle is ordinarily used.
31Pursuant to s. 10(3), if the appellant has proven that there is no alternative to the impounded vehicle the Tribunal may, in limited circumstances, consider financial, economic, or employment losses. The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.
32In the present case, the appellant is retired and lives in an apartment with his wife, who is also retired. The appellant’s wife had a stroke in May of 2021 and is still recovering from that unfortunate event. The impounded vehicle is their only car.
33The appellant says that neither he nor his wife require regular medical care and neither have seen their health affected by the impoundment. They have missed no appointments since the vehicle was impounded and have 911 services available to them in the case of an emergency.
34The appellant says the impounded vehicle is normally used to get groceries and to drive the appellant’s daughter to work every day. Since the impoundment, the appellant has been able to go shopping by getting rides with family members and friends. His daughter has been getting to work by using the bus. The appellant says that, although he and his family are managing, the impoundment has been difficult for all of them.
35In addition, the appellant says that he has an income limited to CPP disability benefits and WSIB benefits and that having to pay the impound costs when the vehicle is released will be difficult to manage.
36I find that the appellant has not proven that there are no alternatives to the impounded vehicle available to him and his appeal under s. 50.2(3)(d) of the Act must fail as a result. During the impound period, the appellant has been able to conduct all of his normal activities by enlisting the help of family and friends. He has access to emergency services if they are needed and there is public transportation available to him. The appellant’s daughter has been able to make use of public transportation to get to work.
37With respect to the costs of impound, I am only able to consider financial or economic impacts of the impoundment if I determine that there is no reasonable alternative to the impounded vehicle. I have found that there are alternatives and cannot consider the financial or economic impacts of the impoundment.
ORDER
38For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
Colin Osterberg,
Member
RELEASED: May 5TH, 2022
Footnotes
- Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745 (Div. Ct.) (“Marshall”)
- 2016 ONLAT 10149 (“Auto Zone”)
- See 7682 v. Registrar of Motor Vehicles, 2012 CanLii 67852 and 7830 v. Registrar of Motor Vehicles, 2013 CanLii 5997
- 8298 v. Registrar of Motor Vehicles, 2013 CanLii 62602 and 10501 v. Registrar of Motor Vehicles, 2016 CanLii 101780