Howard Minett v. Registrar of Motor Vehicles, 2022 CanLII 75201

Date: 2022-08-10

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:

Howard Minett

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Kevin Lundy, Member

Appearances:

For the Appellant: Howard Minett, Self-Represented

For the Respondent: Sanjay Kapoor, Agent

Heard by Teleconference: July 21, 2022

REASONS FOR DECISION AND ORDER

OVERVIEW

1The Appellant, Howard Minett (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 June 11, 2022. At the time of the impoundment, the driver was operating the vehicle with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.

2The Appellant appeals on the ground that the impounded vehicle was stolen at the time it was detained; that, as the owner of the vehicle, he 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 result in exceptional hardship.

ISSUES TO BE DETERMINED

3The issues to be determined are:

(a) Whether the impounded motor vehicle was stolen at the time it was detained in order to be impounded pursuant to subsection 50.2(3)(a) of the Act;

(b) Whether the owner of the motor vehicle 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 pursuant to subsection 50.2(3)(c); and

(c) Whether the impoundment will result in exceptional hardship pursuant to subsection 50.2(3)(d) of the Act.

RESULT

4For the reasons set out below, the appeal is dismissed and the impoundment of the vehicle is confirmed.

THE LAW

5Pursuant to section 50.2 of the Act, the owner of a vehicle which has been impounded pursuant to s. 55.1 of the Act may appeal the impoundment and request an order that the Registrar release the vehicle.

6An owner may appeal only on the following grounds as set out in s. 50.2(3) of the Act:

The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may order the Registrar to release the motor vehicle are,

(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;

(b) 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;

(c) that the owner of the motor vehicle 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; or

(d) that the impoundment will result in exceptional hardship.

EVIDENCE AND ANALYSIS

7The Registrar of Motor Vehicles (the ‘Respondent’) presented uncontested evidence which demonstrates that:

(a) the Appellant is the registered owner of the impounded vehicle, a 2007 Ford FMS;

(b) On June 11, 2022, police discovered the impounded vehicle being driven by Thomas Yantha (‘T.Y’), the partner of the Appellant’s daughter, Brittany Minett (‘B.M.’); and

(c) T.Y.’s licence was under suspension for a Criminal Code conviction at the time the motor vehicle was impounded.

8B.M. and T.Y. have resided in the village of Milverton for approximately two years with their three young children. On January 27, 2022, their landlord advised them that they were to be evicted and must vacate their residence within ten minutes. They gathered a number of items and moved temporarily into a motel. On January 28, 2022, they were transporting some of their remaining belongings from their home when they were stopped by a police officer as the muffler on T.Y.’s van was nearly detached and the officer deemed the vehicle not to be in roadworthy condition. The van was towed away.

9While B.M. was initially present for the stop, since her children were becoming restless, she opted to take them to her parents’ residence located a ten minute walk away. As a result, she was not present for the remainder of T.Y.’s exchange with the officer and missed any possible discussion of the validity of T.Y.’s driver’s licence. While the Appellant presumed that this issue was raised by the officer on January 28, 2022, he has no direct evidence to confirm this theory. However, on the balance of probabilities, it is highly likely that an officer stopping a driver for any reason would ask to view his or her driver’s licence.

10On the same morning, B.M. asked the Appellant if she and T.Y. could borrow his vehicle to finish moving their belongings. Since B.M. has no driver’s licence, T.Y. would be operating the vehicle. The Appellant and his spouse, Marietta Minett (‘M.M.’), agreed but not before both asked T.Y. if he had a valid driver’s licence. Both T.Y. and B.M. confirmed that he did. At the hearing, the Appellant explained his confidence in this response on the basis that he had observed T.Y. driving his own van on numerous occasions over the years since he became involved with B.M. and had no reason to believe that his licence had been suspended or that there was any other reason for the police to have towed his van. However, that the Applicant routinely observed T.Y. operating his own vehicle is not a persuasive litmus test with respect to the validity of T.Y.’s driver’s licence.

11However, this was not the first instance when the Appellant or his spouse inquired with respect to the status of T.Y.’s driver’s licence. On or about September 13, 2016, T.Y. asked to borrow the Appellant’s car, prompting them to request confirmation that his licence was valid. In response, B.M. sent them a screen shot of T.Y.’s physical driver’s licence. As a result, the Appellant explained that when T.Y. asked to borrow the Appellant’s car in 2022, he had no reason not to doubt T.Y.’s assertion that he held a valid licence.

12For the next 134 days, from January 28, 2022 to the date that the Appellant’s vehicle was detained and impounded, T.Y. and B.M. kept the vehicle at their residence for T.Y. to drive to and from his employment, to pick up groceries and to attend to various other errands for which they required a vehicle. As both the Appellant and B.M. explained, they preferred to shop outside Milverton since the only grocery store in the village offers a rather sparse selection of products at substantially higher prices compared to larger chain stores elsewhere. As well, although B.M.’s landlord agreed to allow her to remain in the residence, he subsequently served her with a notice of termination, requiring her to search for a new place for the family to live. She testified that she needs transportation to view potential rental units as prospective landlords tend to consent to viewings on very short notice.

13The Appellant and M.M. have a second vehicle and are therefore not wholly dependent upon the impounded vehicle. However, both noted that scheduling the use of the remaining vehicle has proved challenging as M.M. increasingly needs to drive to London and Ingersoll for work purposes, particularly as pandemic restrictions lessen. As well, although the Appellant is able to carry out his accounting business remotely, he expressed some dissatisfaction with this method since reviewing voluminous documents online is inconvenient. As well, he noted that he occasionally must travel for work to distant locations and cannot in good conscience pass the cost of renting a vehicle onto his clients. As a consequence, since January 28, 2022, he and M.M. have had to coordinate their use of the second vehicle. As June and July tend to represent the Appellant’s busy season, he had put T.Y. on notice that he intended to take his vehicle back in June as he cannot reasonably run his business with a greater volume of work without his own vehicle. Although T.Y. and B.M. had agreed to this arrangement, no specific date to return the vehicle had been arranged. Neither the Appellant nor B.M. were aware of the mechanical status of T.Y.’s van; however, both assumed that T.Y. lacked the financial resources to repair or replace the muffler, particularly as T.Y. lost his job on the date that the vehicle was impounded.

14When Cst. Merkeley called the Appellant on the evening of June 11, 2022 to inform him that his vehicle had been impounded, his first question was whether the Appellant’s car had been stolen. The Appellant replied that it had not and that he had loaned the vehicle to T.Y. and his daughter. When the officer informed him that he could have queried the status of T.Y.’s licence online, he advised that he was unaware of this service.

15B.M. emphasized that on June 11, 2022 she was unaware that T.Y.’s driver’s licence had been suspended and would never have asked to borrow her parents’ car had T.Y. been truthful with her on this issue.

Stolen Vehicle

16Despite his reply to the officer’s initial inquiry, the Appellant explained that, upon further reflection and research, he now takes the position that his vehicle was in fact stolen. Specifically, since T.Y. lied with respect to a condition imposed on borrowing the vehicle, the Appellant contended that he vitiated the Appellant’s consent through falsely claiming that he had a valid driver’s licence.

17The meaning of the term “stolen” is not defined in the Act. As a result, the Appellant relied upon the definition of theft in the Criminal Code of Canada, R.S.C. 1985, Chap. C-46 (the ‘Code’):

322 (1) Every one 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;

(b) to pledge it or deposit it as security;

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

18In Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745, The Divisional Court held that the Tribunal should not limit the meaning of “stolen” only to an intention to take the vehicle permanently. The Court held that the term “stolen” could also apply to an intention to take the vehicle temporarily. The Court reviewed the circumstances of that case and stated:

In our opinion a vehicle is ‘stolen’ in this context when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.

19In the present case, the evidence does not indicate that T.Y. intended to deprive the Appellant of the use of the vehicle either permanently or temporarily. His actions are not comparable to those of a person who absconds with a vehicle without the owner’s consent or knowledge to keep it for his own use, sell it to someone else or simply take it for a joyride. On the contrary, the vehicle was taken for several months, but with the consent of the owner, albeit under the false pretext that the driver was legally authorized to operate it.

20As a result, the issue of whether T.Y. stole the vehicle turns on his intent in asking to borrow it. As his own van was no longer available to him, he needed a vehicle to drive to his employment, purchase amenities and otherwise attend to routine errands that would require someone residing in somewhat isolated area to rely upon the use of a vehicle. On a more immediate level, as a result of the January 27, 2022 eviction, T.Y. needed a vehicle to move his family’s belongings from his residence to temporary lodgings. According to all of the witnesses, it was always understood that T.Y. and B.M. would eventually return the vehicle to the Appellant for his use during the busy season of his business. There was no evidence that T.Y. had either refused to return the vehicle or even expressed resistance to relinquishing his possession of it either in June as proposed by the Appellant or if he were to simply request its return.

21Given T.Y.’s unenviable driving record as submitted by the Respondent, it is likely that T.Y. was well aware that he risked detention every time he drove the car, but simply relied on good fortune in not encountering the police. Rather than intending to deprive the Appellant of his vehicle, he likely hoped to enjoy its use as long as possible. Whether or not he was aware that the vehicle would be impounded if he were detained for driving with a suspended licence, he should have reasonably suspected that the Appellant’s generous long term loan of the vehicle would likely come to an abrupt end should the status of licence ever be revealed, particularly as this was a condition of the loan.

22As a result, I do not find that the evidence indicates that T.Y. intended to deprive the Appellant of the impounded vehicle either temporarily or permanently.

23Similarly, the Appellant also referenced other provisions of the Code with respect to offences similar to theft, specifically subsections 335(1) and 336. However, subsection 335(1) specifically relates to offences in which the property in question was taken without the owner’s consent:

Subject to subsection (1.1), every one who, without the consent of the owner, takes a motor vehicle or vessel with intent to drive, use, navigate or operate it or cause it to be driven, used, navigated or operated, or is an occupant of a motor vehicle or vessel knowing that it was taken without the consent of the owner, is guilty of an offence punishable on summary conviction.

24As noted above, since the above provision requires that the offender take possession of the vehicle without the consent of the owner, it does not apply to the present facts.

25Section 336 of the Code defines the offence of criminal breach of trust. This provision also does not apply to the present case. While the definition of theft in the Code provides some general guidance for the definition of “stolen” in subsection 50.2(3)(a) of the Act, the use of this term must nonetheless be interpreted within the context of the Act and its impoundment provisions. In other words, although the Appellant may have a cause of action against T.Y. in another venue, for the present appeal, since subsection 50.2(3) of the Act includes no reference to breach of trust, this does not offer a ground of appeal against the impoundment.

26With respect to the Appellant’s position that T.Y. effectively stole his car by vitiating his consent through deception, the Appellant essentially sought to depict his agreement to lend his vehicle to T.Y. as a contract, one that was voided through T.Y.’s misrepresentation on the status of his licence, a precondition on the agreement to lend him the vehicle. However, breach of contract also does not fall under the four grounds of appeal permitted by subsection 50.2(3) of the Act since clause (c) of that provision places the duty of investigation solely upon the owner to determine whether or not the proposed driver holds a valid licence and places no duty on the driver.

27I find that the Appellant’s allegation of theft is ultimately undermined by his own lack of due diligence in assessing whether T.Y.’s licence was valid. Had he embarked on a more thorough inquiry into the status of T.Y.’s licence, he would have determined that T.Y. may not have been authorized to drive. On his own evidence, he would then not have so readily offered his consent to allow T.Y. to operate his vehicle.

28As a result, I find that the Appellant failed to demonstrate on the balance of probabilities that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded.

Due Diligence

29As noted above, in 2016, T.Y. made a similar request to borrow the Appellant’s vehicle. In response, T.Y. provided an image of his driver’s licence through B.M. by text message to her father. This review of the licence six years ago was a factor that contributed to the Appellant’s confidence on January 28, 2022 that he had exercised due diligence in ascertaining the status of T.Y.’s driving privilege.

30However, T.Y.’s address as listed on the licence produced to the Appellant in 2016 was out of date by at least two years. While the licence listed an address in Stratford, the family had lived in Mitchell for approximately two years by that time. Under cross examination, the Appellant confirmed that he was aware that the holder of a driver’s licence must promptly notify the Ministry of Transportation of any change in address. He agreed that he had not noticed the obsolete address when he received B.M.’s text in 2016 and consented to the use of his vehicle.

31Had he examined the image more closely, that T.Y. had not updated his licence since 2014 should have reasonably alerted the Appellant to possible problems with T.Y.’s licence and that further investigation was warranted. There was no indication that the Appellant ever physically inspected the licence or requested that T.Y. produce it after September 2016. Given that the licence produced in 2016 expired in 2019 and numerous intervening events over six years could negatively impact upon T.Y.’s driving privileges, the value of having viewed this image in 2016 had depreciated to virtually nothing by early 2022. Significantly, the Appellant never asked to see T.Y.’s licence again. Over the course of the 134 days since T.Y. borrowed the vehicle, there have been family gatherings, birthdays and other visits between the households when the Appellant had numerous missed opportunities to inquire further into the status of T.Y.’s licence. While he was unaware of the online query service, there was no evidence that he ever engaged in any other investigation with the Ministry of Transportation to confirm the validity of T.Y.’s licence.

32In addition, the Appellant repeatedly relied upon the assurances of his daughter that T.Y. held a valid licence as well as M.M.’s inquiries on the subject. However, since both B.M. and M.M. were also deceived by T.Y., this information ultimately did not assist the Appellant in his assessment of the status of T.Y.’s licence. On the evidence, both B.M. and M.M. simply accepted T.Y.’s assurances that he held a valid licence and similarly conducted no further investigation. As a result, their lack of diligence in no way bolstered the Appellant’s own inadequate inquiry. Moreover, the duty to due diligence is solely the responsibly of the owner and cannot be delegated to others. The Appellant alone bore the responsibility to ascertain whether or not T.Y. held a valid driver’s licence.

33Consequently, I find that the Appellant has failed to meet his evidentiary burden on the balance of probabilities to demonstrate that he 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.

Exceptional Hardship

34Section 10 of O. Reg. 631/98 under the Act (the ‘Regulation’) sets out the criteria and factors that the Licence Appeal Tribunal (the ‘Tribunal’) must consider in determining whether exceptional hardship will result from an impoundment.

35Subsection 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.

36If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under subsection 50.2(3)(d) of the Act will fail.

37If the owner proves that there is no alternative to the impounded vehicle available, then subsection 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. According to subsection 10(3), if the Appellant demonstrates 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.

38Since T.Y. borrowed the Appellant’s vehicle, the Appellant and M.M. have coordinated the use of their remaining vehicle to allow M.M. to drive to her employment and for both to continue to assist B.M. and her children with grocery deliveries. Although the Appellant testified that there is no public transit near his daughter’s home, his arrangements to deliver groceries and other essentials have proven effective if inconvenient.

39While both the Appellant and M.M. described the reduction to one vehicle as challenging and at times, a “juggle,” they have not been unable to access vital services and have not missed any appointments or other obligations as a result of the impoundment. They have also not missed any work as a result of the impoundment. Similarly, although the Appellant testified that B.M. suffers from some mental health issues, she is able to work from home. To avoid the high prices at the local grocery store, she calls in orders to larger stores and her parents pick up her purchases and deliver them to her. They have also coordinated assisting her attendance at various viewings of prospective rental units. The Appellant described no specific threats to the health and safety of any person ordinarily transported by the impounded vehicle. While B.M.’s landlord may resume his efforts to evict the family, as of the date of the hearing, she had received no application to terminate her tenancy and there is no imminent threat to her housing.

40T.Y. lost his job of approximately two weeks after the impoundment, in part as a result of the impoundment. However, as B.M. explained, his dismissal also related to his subsequent failure to attend at a subsequent work shift. Both she and her father commented upon T.Y.’s general inability to hold a job for more than a few weeks, implying that this was far from unforeseeable. In any event, whether or not the impoundment contributed to his termination, paragraph 10(3)(d)(i) specifically precludes the Tribunal from considering the impact of the loss upon “the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle.”

41Despite the inconvenience of not having the use of his vehicle, the evidence demonstrated that the Appellant has not been prevented from doing anything of critical importance that he would not otherwise have done or from accessing any necessary resources.

42There was no indication that T.Y. intends or is capable of contributing to the cost of recovering the Appellant’s vehicle from the impound lot. When asked how he would cover this expense, the Appellant stated that he would put the fees on his credit card. Although he noted that the timing of an upcoming mortgage payment may render the timing of payment less than ideal, he described no actual inability to pay the impound costs, even if the expense cannot be fully absorbed all at once.

43Ultimately, I find that the Appellant has not proven that there are no alternatives to the impounded vehicle available and his appeal under subsection 50.2(3)(d) of the Act must fail as a result. I therefore need not make determinations with respect to the remaining components of the exceptional hardship test. Although the impoundment has resulted in inconvenience, the Appellant has failed to prove exceptional hardship under the Act and his appeal must also fail on this ground.

ORDER

44For the reasons set out above, the impoundment of the Appellant’s vehicle is confirmed.