Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act
Between:
Gilles Hamelin
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Kevin Lundy, Member
Appearances:
For the Appellant: Gilles Hamelin, Self-Represented
For the Respondent: Ian Sookram, Agent
Andrew Sookhoo, Observer
Heard by Teleconference: February 15, 2023
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant, Gilles Hamelin (the ‘appellant’), appeals the impoundment of his 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 January 16, 2023. A Notice of Impoundment was issued for a period of 45 days. The impoundment period is scheduled to end on March 2, 2023.
2On January 23, 2023, the appellant appealed the impoundment to the Licence Appeal Tribunal (the ‘Tribunal’) on the grounds that the impounded vehicle was stolen at the time it was detained in order to be impounded.
ISSUE TO BE DETERMINED
(a) The issue to be determined is whether the impounded motor vehicle was stolen at the time it was detained in order to be impounded pursuant to subsection 50.2(3)(a) of the Act.
RESULT
3For the reasons set out below, the appeal is dismissed and the impoundment of the vehicle is confirmed.
THE LAW
4Pursuant to section 50.2 of the Act, the owner of a vehicle which has been impounded pursuant to section 55.1 of the Act may appeal the impoundment and request an order that the Registrar of Motor Vehicles (the ‘respondent’) release the vehicle.
5The grounds on which an owner may appeal an impoundment are listed in section 50.2(3) of the Act and include
(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded …
EVIDENCE AND ANALYSIS
6The appellant is the registered owner of the impounded vehicle, a 2004 Dodge Ram pickup truck. At the time that this motor vehicle was impounded, the appellant’s son, Luke Hamelin (‘L.H.’), had been residing with his parents for approximately one week. The respondent submitted uncontested evidence that as of the date of impoundment, L.H.’s driver’s licence was suspended indefinitely following a conviction under the Criminal Code of Canada (the ‘Code’).
7The appellant testified that on January 16, 2023, police attended at a gas station where L.H. was sitting in the driver’s seat of the impounded vehicle while it was parked and arrested him for impaired driving. While the appellant insisted that he did not believe that L.H. had been driving on public roads, let alone in an impaired state, he was not present and relies upon hearsay from either his son or the operator of the gas station or both. As there was no evidence that someone else drove the vehicle to the gas station for L.H., it is reasonable to conclude that L.H. drove the vehicle to the location where it was ultimately detained and impounded. Therefore, I find that at the time of the impoundment, L.H. was operating the vehicle with a suspended licence.
Stolen Vehicle
8The appellant testified that while he and his wife were away for the weekend, L.H. took the keys for the impounded vehicle without his permission. The appellant was aware that his son’s driver’s licence was suspended and he had refused L.H.’s requests to borrow the vehicle in the days leading up to his departure. He kept the spare key to the impounded vehicle on the key chain for his other vehicle. He did not recall where this key chain was located when he left for vacation, but assumed that it was somewhere in the house, possibly in an item of clothing.
9In August 2020, the police had impounded another vehicle owned by the appellant and operated by L.H. while the latter’s driver’s licence was under suspension. As the total impound fees exceeded the value of this vehicle, the appellant opted not to recover it from the impound lot. He acknowledged a suspicion that his son may again take his vehicle without his consent. However, he took no steps to hide his spare key or otherwise prevent L.H. from accessing it.
10When the police officer who impounded the vehicle asked the appellant whether L.H. had stolen it, the appellant initially replied in the negative. However, he later came to believe that if his son were charged with theft, his prospects of securing the release of his vehicle may improve. The officer subsequently declined to charge L.H. with theft of the impounded vehicle.
11The term “stolen” is not defined in the Act. However, the definition of theft in the Code provides some guidance:
322 (1) Every one 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;
(b) to pledge it or deposit it as security;
(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or
(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.
12In Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745, The Divisional Court held that the Tribunal should not limit the meaning of “stolen” only to an intention to take the vehicle permanently. The Court held that the term “stolen” could also apply to an intention to take the vehicle temporarily. The Court reviewed the circumstances of that case and stated:
In our opinion a vehicle is ‘stolen’ in this context when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.
13In the present case, the evidence does not indicate that L.H. intended to deprive the appellant of the use of the vehicle either permanently or temporarily. Although he has not discussed his son’s motivations with him, at the hearing, he speculated that L.H. more than likely took the vehicle with every intention of returning it before his parents returned from vacation and discovered its absence.
14As a result, I am not satisfied that L.H. intended to deprive the appellant of the impounded vehicle either temporarily or permanently.
15Moreover, although the appellant refused prior requests to use the vehicle, he did not state that he explicitly prohibited L.H. from borrowing it while he and his wife were away. In light of the previous impoundment two years earlier and the appellant’s failure to prevent ready access to the keys, I find that the appellant’s actions represent an implied consent or at the very least, a reasonable expectation that L.H. may drive the vehicle. He knew that L.H. wanted to borrow the vehicle and that his parents’ vacation would provide him an opportunity to access the keys. I find that the appellant took no meaningful measures to safeguard against this possibility.
16For the above reasons, I find that the appellant has failed to prove that the vehicle was stolen within the meaning of the Act and his appeal therefore cannot succeed on this ground.
ORDER
17For the reasons set out above, the appeal is dismissed and the impoundment of the appellant’s vehicle is confirmed.
LICENCE APPEAL TRIBUNAL
Kevin Lundy
Member
RELEASED: February 17, 2023