Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

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:

Maria Milasius

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR:

Jeffery Campbell, Vice-Chair

APPEARANCES:

For the Appellant:

Maria Milasius, Self-represented

For the Respondent:

Leila Pereira, Agent

Heard by teleconference:

October 4, 2022

REASONS FOR DECISION AND ORDER

background

1Maria Milasius (the “appellant”) appeals the 45-day impoundment of her 2021 Hyundai R3G (the “vehicle”) under section 55.1 of the Highway Traffic Act (the "Act"). The appellant's vehicle was impounded on August 31, 2022, when it was found being driven by Destiny Patullo, 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 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 impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.

result

4For the reasons that follow, I find that the impoundment will result in exceptional hardship and, pursuant to s. 50.2(5), I therefore order the respondent to release the vehicle.

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.

Evidence of the respondent

6The respondent referred to the Notice to Registrar, dated August 31, 2022 in which Destiny Patullo 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 Riverside Dr./Walkely Rd.in Ottawa, Ontario.

7The respondent referred to the Extended Driver’s Record Search for Criminal Code Convictions of the driver, dated September 26, 2022. The Driver’s Record Search lists the driver’s licence status as Suspended, Cancelled and Unlicensed due to a criminal conviction.

Testimony of the appellant

8The appellant testified that she was on vacation at the time of the impoundment. She produced a flight itinerary confirming this. Prior to leaving on vacation, she had asked her daughter’s father, Vladislav Fomitchev (“Mr. Fomitchev”), to pick up her car from the repair shop while she was in Cuba and drop it off at her driveway. She testified that she told him clearly not to let his girlfriend, Destiny Patullo, the driver, into the car.

9In a note produced by the appellant, Mr. Fomitchev advised that instead of dropping the vehicle at the appellant’s home, he gave the keys to Ms. Patullo, who was later stopped by the police, and the vehicle impounded.

10The appellant submits that she never gave Mr. Fomitchev consent to let another person use the vehicle, and specifically advised him not to allow the driver into the vehicle.

11The appellant testified that she contacted the police officer listed on the Notice to Registrar in order to report the vehicle as stolen. The officer did not report the vehicle as stolen but told her that she had given the keys to someone else. She testified that she continued to contact the police for the next seven days to have the vehicle reported as stolen but with no response.

Analysis

12The 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; …

13The 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.

14On the evidence, I am satisfied that the driver did not have the appellant’s permission to drive her vehicle while she was out of the country, including on the date of the impoundment. However, while Mr. Fomitchev may have breached the appellant’s trust, it cannot be said that Destiny Patullo was driving without “colour of right.” She had the permission of the person with charge of the vehicle to drive, even if she was in breach of the appellant’s instructions

15Also, the definition of stolen, for the purpose of s. 50.2(3)(a) of the Act, is more narrow than to use or drive a vehicle contrary to the owner’s instructions or without the owner’s express or implied permission. The perpetrator must intend to deprive the owner of the vehicle, whether permanently or temporarily. The driver could not have intended to deprive the appellant of the vehicle temporarily since the appellant was out of the country and did not need the vehicle while she was in Cuba. There was no evidence that the driver intended to deprive the appellant of the vehicle permanently.

16I find that the vehicle was not stolen within the meaning of s. 50.2(3)(a) of the Act.

Issue # 2 – Will the impoundment of the vehicle result in exceptional hardship

17The 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

18The appellant testified that she lives in Ottawa, Ontario with her four-year-old daughter and her twelve-year-old son. She testified that the subject vehicle is the only vehicle that she owns. She testified that she is self-employed at home performing eye-lash extensions. At the time of the impoundment she had employment doing the same at a spa in Ottawa, however, in order to get to work, she paid a friend for the use of her vehicle but found that the cost of the use of the car was close to, if not as much, as she would earn at the spa, therefore, losing any financial benefit from that employment. She subsequently stopped working at the spa.

19The appellant testified that, at the beginning of the impoundment, her ex-husband had rented a vehicle for her. However, he advised her that he could no longer afford to do that. The appellant testified that public transit is available. She testified that, as a single mother, she cannot afford taxis or ride-sharing programs.

20The appellant testified that two weeks prior to the date of the hearing, she and her son attended at an ER, where a growth was found on one of his legs. He was diagnosed with a disease, although she did not articulate the name of that disease. The growth causes pain some days, and that it is not good for her son to walk because of his condition. She advised that he has an appointment at the Children’s Hospital of Eastern Ontario at the end of the month in order to receive further medical treatment of the condition.

21The appellant testified that while the distance to her daughter’s school is a five-minute walk, the distance to her son’s school is a 30–40-minute walk. She testified that there are no school buses to her son’s school, and that public transportation does not stop close to the school. Therefore, her son is walking to school at present.

22The respondent requests that the Tribunal confirm the impoundment of the vehicle as the appellant has the opportunity to rent her friend’s vehicle and that the children have had the opportunity to attend school.

Analysis

23Section 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.

24Subsection 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.

25If 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.

26If 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. According 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.

27While the appellant did not provide medical documentation with respect to her son’s leg diagnosis, I did find her testimony to be forthright and credible. During the period of the impoundment, she has lost the benefit of her employment at a spa causing a requisite loss of income. This has reduced her ability to either rent a vehicle or take advantage of taxis or ridesharing in order to transport her son to and from school.

28I find that, due to the appellant’s loss of income the appellant has no reasonable alternative to the impounded vehicle for the purpose of transporting her son to and from school.

29Having found no reasonable alternative I am required to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle. Despite not having the advantage of medical documentation, on the basis of the credibility of the appellant’s testimony, I find that the impoundment does pose a threat to the appellant’s twelve-year-old son’s health. Indeed, it is a possibility that his condition could worsen without the benefit of transportation to and from school.

30I find that the appellant has established on a balance of probabilities that the impoundment of the vehicle has resulted in exceptional hardship.

ORDER

31On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, I order the release of the appellant’s vehicle.