An appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from the impoundment of a motor vehicle pursuant to Section 55.1 of the Act.
Between:
Deeann Van Luven
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Jeffery Campbell, Vice-Chair
APPEARANCES:
For the Appellant: Deeann Van Luven, Self-represented Robert Van Luven, husband of appellant for support
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: September 14, 2022
REASONS FOR DECISION AND ORDER
background
1Deeann Van Luven (the “appellant”) appeals the 45-day impoundment of her 2014 Hyundai motor vehicle (the “vehicle”) under section 55.1 of the Highway Traffic Act (the "Act"). The appellant's vehicle was impounded on August 16, 2022, when it was found driven by Sorin Lazar (“the driver”), a driver with a suspended driver’s licence.
2The appellant’s grounds of appeal are that the vehicle was stolen at the time it was detained in order to be impounded, that the owner of the vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the 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. The onus is on the appellant to prove on a balance of probabilities at least one of her grounds for appeal.
ISSUES
3As per the Case Conference Report and Order, the issues to be determined are:
i. Whether the vehicle was stolen at the time of impoundment, under s. 50.2(3)(a) of the Act.
ii. Whether the appellant exercised due diligence in attempting to determine that the driver’s licence of the driver of the vehicle was not then under suspension, under s. 50.2(3)(c) of the Act.
iii. Whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.
result
4For the reasons that follow, the impoundment is confirmed. I find that the vehicle was not stolen at the time of the impoundment, that the appellant did not exercise due diligence in attempting to determine that the driver’s licence of the driver was not under suspension and that the impoundment will not result in exceptional hardship.
LAW AND ANALYSIS
Issue # 1 - Was the vehicle stolen at the time of the impoundment?
5The appellant appeals the impoundment on the ground that the vehicle was stolen at the time of impoundment, under s. 50.2(3)(a) of the Act.
The Evidence
Evidence of the respondent
6The respondent referred to the Notice to Registrar, dated August 16, 2022 in which Sorin Lazar is listed as the driver of the vehicle and the appellant as the owner of the vehicle. The Notice to Registrar states the location of incident as 55 Northfield Drive East in Waterloo, Ontario.
7The respondent referred to the Extended Driver’s Record Search for Criminal Code Convictions of the driver, dated September 9, 2022. The Driver’s Record Search lists the driver’s driving status as Suspended, Cancelled and Unlicensed due to a criminal conviction.
Testimony of the appellant
8The appellant testified that she had loaned the vehicle to her daughter Shai for her to use while Shai’s vehicle was being repaired. The appellant testified that, around 9:30 p.m. on August 16, 2022, she received a telephone call from Shai asking to be picked up at the location of the vehicle, which was a McDonalds restaurant parking lot (the “location”), as she and the person she was with were in an altercation. The appellant testified that her husband drove to the location, got the key to the vehicle from their daughter, locked the vehicle and returned to their home with their daughter.
9The appellant testified that later that night, she received a call from the Waterloo Regional Police asking if the vehicle was her vehicle. She advised that that it was and asked why he wanted to know. She testified that the officer advised that it was suspected that the vehicle was involved in a crime. She testified that the officer asked if the vehicle was stolen to which she said no and explained that her husband and daughter had left the car locked at that location.
10The appellant testified that it was not until the next day that they discovered that the vehicle was impounded. She testified that Shai then told her that she and the person she was with, the driver, had an altercation at the location. Shai told her that the driver assaulted her and grabbed the keys of the vehicle out of her hand. Shai told her that she then went into the McDonald’s restaurant and later came out with another gentleman and retrieved the keys from the driver.
11When asked by the respondent why the appellant stated in the Notice of Appeal “On the night of August 17 at approximately 21:30 my daughter called to request a pick up at a local business as she had some drinks…”, the appellant advised that that was just a typo.
12The appellant testified that she did not call the police for a week to report that the vehicle had indeed been stolen because she thought the police were going to contact her. When she did contact the police a week after the incident, she was told that the officers involved were on holidays. She then called back after a week and a half but was told that one of the officers was still on holidays and the other would not return until that Friday. The appellant testified that, at that point, she was “too overwhelmed and never did talk to them”.
Testimony of Constable Anthony Guido
13Constable Anthony Guido of the Waterloo Regional Police Service at the request of the Respondent.
14Constable Guido testified that on August 16, 2022 at 9:38 pm., he was dispatched to a location to investigate a report of a complaint of an assault. Upon arriving at the location at 9:45, Constable Guido identified a male who matched the description given in the complaint. The male refused to speak with Constable Guido. As the male fit the description in the complaint, the male was placed in investigative detention. The male was identified as Sorin Lazar, “the driver”.
15Constable Guido proceeded inside the McDonald’s restaurant where he viewed CCTV of that evening. In the video Constable Guido observed that, at 9:23:45, the vehicle turned into the parking lot of the location from Northfield Drive East. He testified that the vehicle then parked at the entrance of the drive-thru. At 9:25, the vehicle then proceeded to drive past the drive-thru, and at 9:25:49 the vehicle pulled into a parking spot.
16Constable Guido testified that a female approached the vehicle, pulled on the passenger door handle, then proceeded to the driver’s side of the vehicle. He testified that, at 9:26, the driver exited the driver’s seat at which point the female assaulted the driver. He then testified that the driver pushed the female into the vehicle and proceeded to slap her. He testified that the female then ran away from the vehicle.
17Constable Guido testified that the male who exited the vehicle was the individual that he had questioned earlier.
18Constable Guido testified that, although he did view earlier CCTV of the driver originally driving from the location, he could not see the driver forcibly taking the keys from the female.
Analysis
19The 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; …
20The 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.
21In the present case, the appellant argues that the keys to the vehicle were forcibly taken from Shai.
22The respondent submits that there is no evidence that the vehicle was stolen. I do not disagree with the respondent in that regard. The appellant did testify that the driver grabbed the keys from Shai. However, I find that evidence somewhat problematic.
23In her oral testimony of incident, the appellant contradicts the account that she wrote in the Notice of Appeal (the “NOA”). The NOA is dated the day after Shai allegedly spoke to the appellant about the incident. The account in the NOA mentions nothing of an assault or the taking of the keys, but rather that Shai requested for the appellant to pick her up due to her drinking. I do not accept that the appellant’s explanation that the statement in the NOA, “On the night of August 17 at approximately 21:30 my daughter called to request a pick up at a local business as she had some drinks…”, was a typo. These two differing accounts of the incident are inconsistent with each other and calls into question the credibility and/or the memory of the appellant.
24Constable Guido’s testimony does verify the appellant’s account of the assault. However, it does not verify the appellant’s account of the taking of the keys, which is central to the issue of whether the vehicle was stolen.
25The inconsistencies in what the appellant testified at this hearing and what she wrote in her Notice of Appeal the day after the incident leaves me unpersuaded that the vehicle was stolen, therefore, I find that the appellant has failed to prove on the balance of probabilities that the vehicle was stolen.
Issue # 2 - Did the appellant exercise due diligence?
26The appellant appeals the impoundment of her vehicle on the basis that she exercised due diligence in attempting to determine that the driver’s licence of the driver of the vehicle was not then under suspension, under s. 50.2(3)(c) of the Act.
Testimony of the appellant
27The appellant testified that she had only met the driver on one occasion and that she did not know him on a personal basis. She testified that she never checked his driver’s licence or took any other steps to determine as to whether his driver’s licence was under suspension.
Analysis
28This ground of appeal requires the vehicle owner to show that she took reasonable steps to determine that the driver’s licence was not suspended. In this context, due diligence requires more than making assumptions of the facts. It requires steps to be taken by the owner to confirm the driver’s assertion that his licence was not suspended and that it was valid. The specific steps that amount to due diligence depend on the circumstances of each case.
29According to the appellant’s testimony, she hardly knew the driver. She never requested to see his driver’s licence nor took any steps to ensure that his driver’s licence was not suspended.
30I find that the appellant did not exercise due diligence to ensure that the driver’s licence of the driver was not under suspension at the time of the impoundment of the vehicle.
Issue # 3 – Will the impoundment of the vehicle result in exceptional hardship
31The appellant appeals the impoundment of the vehicle on the basis that the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.
Testimony of the appellant
32The appellant testified that she lives with her husband and their 12 year old granddaughter. She testified that they have two vehicles; the vehicle at issue as well as another vehicle that the husband uses to drive to work as well as to drive their granddaughter to medical appointments.
33The appellant testified that she works for a property management company as a superintendent in the apartment building in which they live. She testified that, at times, she must travel to other locations to make rent collections and to take applications for rent.
34The appellant testified that her brother as well as her oldest daughter has assisted her with transportation in their vehicles. She testified that there is public transit available although she cannot use it due to anxiety and bi-polar issues. She testified that she schedules her appointments for when her husband or her brother can transport her.
Analysis
35Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. To establish exceptional hardship, the first requirement set out in s. 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 we need not consider any other requirements.
36Given that the appellant has alternatives to the impounded vehicle, including a second vehicle at home, and assistance from her brother and her oldest daughter, the evidence does not support a finding of exceptional hardship.
ORDER
37On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the appellant’s vehicle.
Licence Appeal Tribunal
Jeffrey Campbell, Vice Chair
Released: September 21, 2022