Licence Appeal Tribunal File Number: 15334/MVIA

In the matter of an appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle pursuant to Section 55.1 of the Act.

Between:

Kristopher Vavrinec

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION and ORDER

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Kristopher Vavrinec, appellant (self-represented)

For the Respondent:

Leila Pereira, Agent for the Registrar

Heard by Teleconference:

November 3, 2023

OVERVIEW

1Kristopher Vavrinec (the “appellant”) appeals the impoundment of his 2008 Honda CRV on October 13, 2023, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2The owner of a vehicle which has been impounded in accordance with s. 55.1 may, under the provisions of s. 50.2 of the HTA, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”) that the Registrar release the vehicle.

3For the Tribunal to order the vehicle released, the appellant must prove, on a balance of probabilities, that he satisfies at least one of the five grounds set out in s. 50.2(3) of the HTA. The appellant appeals on the ground the vehicle was stolen (s. 50.2(3)(a)) and that the impoundment will result in exceptional hardship (s. 50.2(3)(d)).

ISSUES

4The issues in dispute are:

(a) Was the vehicle stolen pursuant to s. 50.2(3)(a) of the HTA?

(b) Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA?

RESULT

5I find that the appellant has proven on a balance of probabilities that the vehicle was stolen, pursuant to s. 50.2(3)(a). Since I find that he met his burden in relation to one of the five grounds in 50.2(3), it is not necessary for me to consider the other ground of exceptional hardship. I order the Registrar to release the vehicle from impoundment.

ANALYSIS

Circumstances leading to the impoundment

6Under s. 55.1 of the HTA, where a police officer is satisfied that a person was driving a motor vehicle while his or her licence is under suspension for certain driving-related Criminal Code convictions, the officer must detain and impound the vehicle.

7At the time the appellant’s vehicle was detained, it was being driven by Deborah Beckworth, the appellant’s mother (the “driver”). The respondent presented unrefuted evidence that the driver’s licence was under suspension for a prescribed Criminal Code offence pursuant to s. 55.1 of the HTA at the time it was detained. Accordingly, the vehicle was lawfully impounded.

Issue 1: Stolen

8I find that the vehicle was stolen pursuant to s. 50.2(3)(a) of the HTA.

9The Divisional Court in Marshall v. Ontario Registrar of Motor Vehicles, [2002] O.J. No. 745 (“Marshall”), held that “stolen” for the purposes of s. 50.2(3)(a) of the HTA requires evidence that a) the vehicle was taken without the owner’s consent, and b) that the perpetrator intended to deprive the owner of it either permanently or temporarily. The Tribunal is bound to follow the two-part test in Marshall.

Taken without consent

10The appellant testified that the driver took his vehicle without his consent. He testified that he occasionally let the driver use the vehicle, approximately two or three times per year, and that on each occasion she had sought permission to use it.

11The appellant testified that in this case, the driver took the vehicle without consent, while he was out of the house, having taken the keys from his bedroom, and claimed she did not seek his permission because her friend was in crisis and needed urgent attention. He testified that although the vehicle was taken without his consent, he did not consider it to have been stolen in a criminal sense. He expected, based on previous experience that she would seek permission any time she wanted to use the vehicle.

12The appellant was forthcoming in his testimony and eager to share the circumstances surrounding his vehicle’s impoundment and I accept his testimony of the events leading up to the impoundment. I find that the driver took the vehicle without consent.

Intended to deprive the owner of the vehicle

13The driver intended to deprive the appellant of the vehicle.

14The appellant testified that he lives at the home of his parents and left the only set of keys to his vehicle in his bedroom, either in the dresser or on the bed-side table. That the driver was found in possession of the vehicle at the time it was detained for impoundment makes it evident the driver entered the appellant’s bedroom to locate the keys to the vehicle so she could use it. Her actions effectively intended to deprive the appellant of his vehicle. That he was absent at the time is irrelevant. Had he wished to use his vehicle for any reason at the time, he would not have been able to; he was deprived of his vehicle.

15The respondent submitted that the driver was not intentionally depriving her son of the vehicle, but rather, borrowing it, as she had on previous occasions, several times per year. I am not persuaded by the argument that the driver’s occasional borrowing of the vehicle, with consent, leaves open its use without consent. The appellant testified that the driver had always sought consent to borrow the vehicle in the past.

16In Marshall, the driver had taken the keys to the vehicle from a person entrusted with it and intended to return the vehicle after doing some errands before anyone knew he had taken the vehicle. In that case the Divisional Court determined that the Tribunal’s finding that the vehicle was not stolen, was patently unreasonable. In other words, a deliberate intention to deprive the owner of the vehicle, even temporarily, amounts to it being stolen for the purposes of s. 50.2(3)(a).

17I find the driver intentionally deprived the owner of his vehicle,

18Since the driver took the vehicle without consent with the intention of depriving the owner of it, even temporarily, I find the circumstances are consistent with Marshall, and that the vehicle was stolen for the purposes of 50.2(3)(a).

Issue #2 – Exceptional Hardship

19The appellant need only prove one of the five grounds in s. 50.2(3) for his vehicle to be ordered released. Since I find that the vehicle was stolen, it is not necessary to consider the exceptional hardship ground in s. 50.2(3)(d).

CONCLUSION

20I find the appellant met his burden to prove the vehicle was stolen in accordance with s. 50.2(3)(a) of the HTA.

ORDER

21Pursuant to subsection 50.2(5) of the HTA, I direct the Registrar to release the impounded vehicle.