Licence Appeal Tribunal File Number: 15226/MVIA

In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.

Between:

Andrea McDonald

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Appellant:

Andrea McDonald, Self-Represented

For the Respondent:

Leila Pereira, Program Advisor

HEARD: October 20, 2023

OVERVIEW

1Andrea McDonald, the appellant, appeals from the 45-day impoundment of her 2006 Porsche Cayenne 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 August 25, 2023. At the time of the impoundment, the appellant’s partner was driving the vehicle while his licence was under suspension resulting from a prescribed criminal conviction.

2The appellant appeals on the grounds that the vehicle was stolen at the time it was impounded, and that the impoundment will result in exceptional hardship.

ISSUES

3The issues in dispute are:

i. Whether the vehicle was stolen at the time of the impoundment under section 50.2(3)(a) of the Act.

ii. Will the impoundment of the appellant’s vehicle result in exceptional hardship under section 50.2(3)(d) of the HTA?

RESULT

4I find the vehicle was stolen, and therefore, pursuant to section 50.2(5), I order the respondent to release the vehicle. Since I have determined that the vehicle was stolen, I need not determine whether the test for exceptional hardship has been met because only one ground for appeal under s. 50.2(3) must be met.

ANALYSIS

The appellant’s vehicle was stolen at the time of the impoundment.

5The burden is on the appellant to prove on a balance of probabilities that the vehicle was stolen. I am satisfied that the appellant has established, on a balance of probabilities, that the vehicle was stolen at the time of the impoundment.

6The respondent presented unrefuted evidence that the appellant’s partner’s licence was suspended for a prescribed Criminal Code offence pursuant to s. 55.1(1) of the HTA at the time of the impoundment. Accordingly, the vehicle was lawfully impounded.

7The word “stolen” is not defined in the Act.

8The Divisional Court, in the case of Marshall v. Ontario Registrar of Motor Vehicles, [2002] O.J. No. 745, (“Marshall”) 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,

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

9The appellant testified that on the day of the impoundment, she was away at a conference for work, and at no point in time did she give her partner permission to drive her vehicle. At the time of the impoundment, her partner was in recovery for substance use disorder and was doing well. She was aware that he did not have a licence and they previously had discussions where she expressly told him that he was not to drive her vehicle. Further, he had never previously taken her vehicle.

10The appellant submits that she put her keys in the drawer of her nightstand table prior to leaving her home, as she thought this was a secure place and her partner was not aware that she put the keys there. She did not ask the police to press charges because she did not think that she could; her partner lived in the same home, and she wanted to minimize the damage because he was going through recovery for substance abuse. Since the impoundment, her partner has left her home because of the breach of trust.

11The respondent takes the position that the appellant has not proven that the vehicle was stolen because she did not ask police to press charges against her partner once she became aware that her vehicle had been taken without her permission. Further, she did not take preventative measures to ensure that the keys to her vehicle were in a locked and secure space. The respondent submits that the appellant could have taken additional steps to prevent her partner from taking the vehicle.

12I find the appellant’s testimony to be credible and forthright, and I accept it. I find that that vehicle was stolen on the date of the impoundment because it was taken without the appellant’s permission. As highlighted in Marshall, the courts have defined a vehicle as stolen “when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.” In this case, the driver took the vehicle without the appellant’s permission to use it on a temporary basis. I find this is consistent with the definition of stolen highlighted by the court in Marshall.

13The respondent argues that because the appellant did not press charges and the keys were not locked up, they were accessible to the driver. However, I find that the availability of the keys does not equate to consent to drive the vehicle. Further, I believe that the appellant thought she was putting them in a secure place by putting them in her nightstand drawer, a location where people put personal items which are not normally accessed by other people within a household. I find that this was a reasonable step taken by the appellant to try to ensure her keys were secure. Moreover, I find the appellant did not have a reason to lock up her keys because of her partner’s past pattern of behaviour in that he had never taken her vehicle before, and they had conversations that he was not to drive her vehicle. Finally, I accept the appellant’s explanation for not pressing charges against her partner and this is not a requirement to establish that a vehicle was stolen.

14Given all of the above, I find on a balance of probabilities that the driver took the appellant’s vehicle without her consent or permission with the intent of depriving the appellant of it even if it was just temporarily. In the context of this case, this taking amounts to the driver having stolen the vehicle. The vehicle should therefore be released.

Conclusion

15The appellant has established that her vehicle was stolen at the time of the impoundment. As such, it is unnecessary to consider whether the impoundment will result in exceptional hardship.

ORDER

16On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the appeal is granted, and the respondent is ordered to release the appellant’s motor vehicle.