Diane LeBlanc v. Registrar of Motor Vehicles, 2022 CanLII 55017

Tribunals Ontario

Licence Appeal Tribunal

Date: 2022-06-13 Tribunal File Number: 14052/ MVIA

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:

Diane LeBlanc Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

ADJUDICATOR: Jeffery Campbell, Vice-Chair

APPEARANCES:

For the Appellant: Diane LeBlanc, Self-represented For the Respondent: Steve Grootenboer, Agent

Heard by teleconference: June 8, 2022

REASONS FOR DECISION AND ORDER

Background

1Diane LeBlanc (the “appellant”) appeals the impoundment of her 2002 Buick LeSabre (the “vehicle”) under s. 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) on May 4, 2022 for 45 days. At the time of the impoundment, someone other than the appellant was driving the vehicle. The driver’s licence was suspended at the time of the impoundment.

2The appellant appeals on the grounds that the vehicle was stolen at the time that it was being driven by the suspended driver and that the impoundment of the vehicle will result in exceptional hardship.

Issues

3The first issue to be determined is whether the vehicle was stolen at the time of impoundment, under s. 50.2(3)(c) of the Act.

4The second issue to be determined is whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.

Result

5I find that the appellant’s evidence supports a finding that the appellant’s vehicle was stolen within the definition of the Act. I grant the appeal and order the Registrar to release the impounded vehicle. Having found that was stolen at the time of impoundment, it is not necessary for me to consider the ground of exceptional hardship.

Analysis

Was the vehicle stolen at the time of the impoundment?

6The appellant testified that she had loaned the vehicle to her daughter a couple of years ago. The intent was that her daughter would purchase the vehicle once she had enough money for insurance. Her daughter had graduated from college in March 2020 as a personal support worker. However, due to the onset of Covid, she was unable to find employment until recently.

7The appellant testified that the driver of the vehicle, Justin McGregor (the “driver”) was her daughter’s boyfriend, although they did not live together. The appellant testified that neither she nor her daughter had given permission to the driver to use the vehicle.

8The appellant testified that, on May 4, 2022, she received a telephone call from the police advising her of the impoundment of the vehicle. She then called her daughter by telephone. Her daughter explained that she had been laying down due to a migraine headache. When she awoke, she discovered that the vehicle was gone. She only discovered the driver had taken the vehicle and it had been impounded from her mother’s telephone call.

9The appellant testified that on May 6, 2022, she contacted the Greater Sudbury Police Service (“Police”) to advise them that the vehicle had been stolen by the driver on May 4, 2022. She advised the Police that she had not given consent for the driver to operate her vehicle. The appellant included the Occurrence Report of May 6, 2022 in her documentary submissions.

10The appellant testified that her daughter is unable to give evidence as she is unwell and is seeking in treatment due to trauma. The appellant further testified that the driver is unable to give evidence as he was advised by his counsel not to do so.

11The word “stolen” is not defined in the Act. Section 2 of the Criminal Code defines “steal” as “to commit theft.” The offence of theft is then described at s. 322 of the Criminal Code as follows:

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; …

12The 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,

[W]hen it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.

13In impoundment cases, the burden is on the appellant to prove that the vehicle was stolen. The proof must be established on a balance of probabilities.

14The evidence presented at the hearing establishes that the driver was in possession of the vehicle at the time of impoundment. The evidence also establishes that the driver did not have permission to operate the vehicle.

15I find that the driver intended to deprive the daughter of the use of the vehicle at least temporarily. I find that the fact that the daughter was asleep at the time that the driver took the vehicle is of no consequence. To reason that, as the daughter was asleep at the time that the driver was operating the vehicle, and therefore could not be deprived of the vehicle while she was asleep, ignores the fact that it is unknown how long the driver intended to use the vehicle or whether he would return it at all. Further, it is certainly not the intent of the Legislature to allow an individual to use the property of an individual without permission because the individual was unable or not intending to use the property at the time.

16Thus, based on the facts before me I find that the vehicle was “stolen” when it was taken by the suspended driver.

Order

17On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the Respondent is ordered to release the appellant’s vehicle.