Licence Appeal Tribunal File Number: 15310/MVIA

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

Between:

Christina Portmann

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

Christina Portmann, Self-Represented

For the Respondent:

Leila Pereira, Representative

HEARD: November 2, 2023

OVERVIEW

1Christina Portman, the appellant, appeals from the 45-day impoundment of her 2012 Dodge Journey motor vehicle 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 14, 2023. At the time of the impoundment, Christopher Heayn was driving the vehicle while his licence was under suspension resulting from a prescribed Criminal Code 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. Whether the impoundment will result in exceptional hardship, under section 50.2(3)(d) 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. I do not need to decide the ground of exceptional hardship.

ANALYSIS

5The respondent presented uncontradicted evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2012 Dodge Journey (the “vehicle”);

ii. on October 14, 2023, the police discovered the impounded vehicle being driven by Christopher Heayn (the “driver”); and

iii. Mr. Heayn’s licence was under suspension for a Criminal Code conviction at the time of the impoundment.

Whether the vehicle was stolen at the time of the impoundment

6I am satisfied the appellant has established, on a balance of probabilities, that the vehicle was stolen at the time of the impoundment. The burden is on the appellant to prove on a balance of probabilities that the vehicle was stolen.

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, 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 had not given the driver her consent or permission to take the vehicle. Instead, she had lent the vehicle to her friend for one evening as her friend was having her own vehicle’s transmission fixed. She testified that her friend was supposed to return the vehicle in the morning when her husband returned from work. However, at some point during the night while her friend and family slept, the driver came into the home undetected via the garage and took the car keys for the vehicle.

10The driver does not reside in her friend’s home, but is known to the friend, and his 13 year old son resides in the home.

11The appellant testified she has known the driver for about eight years and that she recommended him to complete renovation work in her friend’s home. Her friend had hired the driver to renovate two washrooms and complete a few other tasks around the home. He had been renovating the home for about 4 months prior to the impoundment.

12The appellant testified that she knew the driver did not have a driver’s licence and she would never have allowed him to drive the vehicle. She testified that she did not give him permission to drive the vehicle.

13The appellant testified that she found out he had taken the vehicle when the police contacted her in the morning. She told the police that he took the vehicle without her permission and she wanted to press charges against him. She testified that he was charged with theft under $5,000 but she is unsure if that was for the theft of her vehicle. She testified that an incident report was provided to her by the police, however, this was not provided to the Tribunal. She remains unsure if she received a theft report.

14The appellant testified that she spoke with her friend after the impoundment. Her friend stated that the driver was in her home without her permission at the time he took the vehicle keys. She had not given him permission to drive the vehicle. I note that the Notice to Registrar states that the vehicle was impounded at 4:32 a.m.

15The appellant testified that she spoke with the driver after the impoundment and he apologized for taking the vehicle. He told her that there had been an emergency and that his brother was ill and he was going to Port Perry. He told her that he thought he could return the vehicle without anyone finding out. He told her that he informed the police that he had taken the vehicle without her knowledge and permission.

16I appreciate that the appellant testifying to the Tribunal about what her friend and the driver told her is hearsay evidence. There are inherent dangers to accepting hearsay because they are statements made by another person who did not testify at this hearing, and their evidence cannot be tested by cross-examination. That said, section 15(1) of the Statutory Powers Procedure Act allows this Tribunal may consider all evidence provided that it is relevant to the-subject matter of this proceeding. I accept and admit the hearsay evidence about what the friend and the driver told the appellant because it is relevant as to whether the appellant gave her consent to the driver to take the vehicle.

17But this hearsay evidence is not crucial for my decision. I accept the testimonial evidence of the appellant, which is not hearsay.

18I find that the appellant lent the vehicle to her friend for one evening and expected to have the vehicle returned to her in the morning. I find her testimony to be forthright when she testified that she had no idea the driver would enter her friend’s home at night and take the vehicle keys and the vehicle. I find her testimony convincing when she testified that she knew the driver did not have a driver’s licence and would not have given him permission to drive the vehicle.

19I am further persuaded that her friend did not have knowledge that the vehicle was taken or give permission to the driver to take the vehicle. I am not convinced that the friend did not undertake proper security measures to ensure the vehicle keys were not taken by the driver. The evidence presented demonstrated that the driver entered the friend’s home unbeknownst, and without her permission.

20I accept the appellant’s testimony that she informed the police that the driver took the vehicle without her permission and that she wanted him charged with theft of the vehicle.

21Given 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. In the context of this case, this taking amounts to the driver having stolen the vehicle. The vehicle should therefore be released.

22Having made this determination there is no need to consider the ground of exceptional hardship.

Conclusion

23The appellant has established that her vehicle was stolen at the time of the impoundment.

ORDER

24On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the appeal is allowed, and the respondent is ordered to release the appellant’s motor vehicle.