Licence Appeal Tribunal File Number: 15326/MVIA
In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.
Between:
Fathalla Elmutiagin
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR: Rebecca Hines
APPEARANCES:
For the Appellant: Fathalla Elmutiagin, Self-Represented Razan Elmutiagin, Appellant’s Daughter (Arabic Interpreter)
For the Respondent: Leila Pereira, Program Advisor
HEARD: November 2, 2023
OVERVIEW
1Fathalla Elmutiagin, the appellant, appeals from the 90-day impoundment of his 2018 Nissan Murano 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 October 18, 2023. At the time of the impoundment, the appellant’s son 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.
ISSUES
[3] The 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.
RESULT
4I find the vehicle was stolen, and therefore, pursuant to section 50.2(5), I order the respondent to release the vehicle.
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 son’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 date of the impoundment, his son stole the vehicle in the middle of the night while he was at work and his wife was asleep. He submits that upon noticing that the vehicle was taken, his wife called the police and reported the vehicle stolen. They were later informed by the police that their vehicle had been impounded because their son was driving with a suspended licence. Despite their complaints to the police, no charges were laid. The appellant acknowledged that he was aware that between July 2020 to date, his son’s licence had been suspended three times for driving while impaired and with a suspended licence. He submits that he and his wife would hide the spare keys so that they were not accessible to their son, but he found them on the date in question. The appellant also indicated that he had conversations with his son about not driving any vehicle, but despite these conversations, his son did not listen. Further, his son had never previously taken the vehicle from their home.
10The respondent takes the position that the appellant has not proven that the vehicle was stolen because no charges were laid against his son, nor were any police reports submitted to confirm their complaints. The respondent also provided evidence that the appellant’s son’s licence had been suspended nine times between July 2020 to date, for driving while impaired and with a suspended licence. Further, even though the appellant was aware of his son’s driving history, no preventative measures were taken to ensure that the keys to the vehicle were in a locked and secure space. The respondent submits that the appellant could have taken additional steps to prevent the vehicle from being taken.
11I find the appellant’s testimony to be credible and forthright, and I accept it. I find that the 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 son took the vehicle under the cover of darkness while the appellant was at work and his wife was asleep because he did not have permission to drive the vehicle, and nobody was there to stop him. In this case, the driver took the vehicle without the appellant’s permission to use it on a temporary basis. I find this consistent with the definition of stolen highlighted by the court in Marshall.
12The 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 the appellant that he and his wife tried to ensure that the keys were not accessible and would not have been able to predict that their son would steal their vehicle in the middle of the night. In addition, although the appellant was partially aware of his son’s driving history, he did not have reason to believe he would take the vehicle because his son had never taken their vehicle before. I also believe the appellant that he had conversations with his son before the impoundment that he was not to drive any vehicle. Finally, I accept the appellant’s testimony that they reported the vehicle stolen to police but for whatever reason, the police decided not to press charges. It is understandable that a parent would not pressure or insist that police press charges against their own child because of the potential consequences of those charges.
13Given all of the above, I find on a balance of probabilities that the driver took the appellant’s vehicle without consent or permission with the intent of depriving the appellant of it on a temporary basis. In the context of this case, this taking amounts to the driver having stolen the vehicle. The vehicle should therefore be released.
Conclusion
14The appellant has established that the vehicle was stolen on the date of the impoundment.
ORDER
15On 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.
Released: November 16, 2023
__________________________
Rebecca Hines Adjudicator