Licence Appeal Tribunal File Number: 14579/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 under section 55.1 of the Act for driving while suspended.

Between:

Robert Boissonneault

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

VICE-CHAIR:

Colin Osterberg

APPEARANCES:

For the Appellant:

Robert Boissonneault, self-represented

For the Respondent:

Leila Pereira, Representative

Heard by Teleconference: February 23, 2023

OVERVIEW

1Robert Boissonneault (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 February 1, 2023. At the time of the impoundment, Kyle Clarke was driving the vehicle with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.

2The appellant appeals on the grounds that the vehicle was stolen at the time it was detained in order to be impounded and that the impoundment will cause exceptional hardship.

PRELIMINARY ISSUE

3The appellant arrived at the hearing 15 minutes late and only after he was called by the Tribunal and told that the hearing had commenced.

4The appellant said he was not prepared and asked if the hearing could be adjourned. He says that his daughter was handling the appeal and that she had only told him about the appeal a week ago. The appellant says he did not realize that the hearing was today.

5The respondent opposed the adjournment request.

6I denied the appellant’s request for an adjournment. According to the Case Conference Report and Order dated February 14, 2023, the appellant was in attendance when three dates were set aside for the hearing. Today was one of those dates. On February 15, 2023, a Notice of Hearing was sent to the appellant at his email address advising him that the hearing would take place today.

7When considering an adjournment request, the Tribunal considers, amongst other factors: the timeliness of the request and whether the parties have been given the opportunity to canvass their availability; the specific reasons for being unable to proceed on the scheduled date; and the length of the requested adjournment.

8In this case, the appellant arrived late to the hearing and only then requested the adjournment. The reason he says he did not know about the hearing was that his daughter was taking care of the matter. However, the appellant was present when the dates were discussed as to when the hearing could take place. It is the appellant’s obligation to ensure that he is present and prepared to proceed with the hearing and the appellant in this case was afforded a fair opportunity to do so.

9The request for adjournment is denied.

ISSUES

10The issues in dispute are:

i. whether the vehicle was stolen at the time it was detained in order to be impounded in accordance with section 50.2(3)(a) of the Act; or

ii. whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

RESULT

11For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.

ANALYSIS

The vehicle was not stolen

12I find that the appellant has not established that the vehicle was stolen at the time it was detained in order to be impounded.

13The Divisional Court in Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745 (Div. Ct.) (“Marshall”) held that 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.

14In Marshall, the Divisional Court found that a vehicle had been “stolen” for the purposes of s. 50.2(3)(a) of the HTA where the driver took the keys from the purse of a person to whom the owner had entrusted the vehicle, and where the driver intended to return the vehicle after he had run some errands and before anyone knew he had taken the vehicle. The Divisional Court stated that the Tribunal’s finding that the vehicle was not stolen on those circumstances was patently unreasonable.

15The appellant purchased the impounded vehicle for his daughter a few years ago so that she could drive it to work and so that she could drive her son to school. She has had the vehicle since that time. His daughter lives with her boyfriend, Mr. Clarke, and her son Tyler who is almost 5 years old.

16The appellant’s information about what happened the night the vehicle was impounded is based on what his daughter has told him. The appellant says his daughter came home from work, went to bed, and was sleeping when Mr. Clarke took the vehicle. He does not know whether Mr. Clarke asked to borrow the vehicle, whether his daughter allowed Mr. Clarke to use the vehicle in the past, or whether she ever forbade Mr. Clarke from using it.

17The appellant assumes the keys to the vehicle were easily available to Mr. Clarke. The appellant does not know where Mr. Clarke was going with the vehicle when it was impounded. The appellant has not been told whether Mr. Clarke was charged for taking the vehicle without permission.

18The evidence does not establish that the vehicle was stolen and the appellant has not proven this ground of appeal.

The appellant has not established exceptional hardship according to the Act

19I also find that the appellant has not established that there are no alternatives to the impounded vehicle available and his appeal under s. 50.2(3)(d) of the Act must be dismissed as a result.

20Section 10 of O. Reg. 631/98 under the Act (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.

21Section 10(1) requires the Tribunal to first consider whether an alternative to the impounded vehicle is available. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

The owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.

22If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under s. 50.2(3)(d) of the Act will be dismissed.

23If the owner proves that there is no alternative to the impounded vehicle available, then s. 10(1) of the Regulation requires the Tribunal to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle, or to the environment or community in whose service the motor vehicle is ordinarily used. According to s. 10(3), if the appellant has proven that there is no alternative to the impounded vehicle the Tribunal may, in limited circumstances, consider financial, economic, or employment losses. The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

24The appellant says that the impounded vehicle is used by his daughter to drive to and from work at her two jobs. There is no public transit available, and she is unable to afford to use a taxi service. The vehicle is also used by the appellant’s daughter to drive her son to his school, which is located in another city. She also uses the vehicle for day-to-day activities such as getting groceries and running errands.

25Since the impoundment, the appellant has moved in with his daughter. He drives his daughter to work and Tyler to school every day. His daughter has missed no time from working and Tyler has missed no time from school since the impoundment. The appellant does the grocery shopping and any errands that need to be done.

26The appellant intends to stay with his daughter and continue to help her until the impoundment period is over. He could not think of any activities that his daughter or Tyler have been unable to do as the result of the impoundment.

27I find that the appellant has not proven that there are no alternatives to the impounded vehicle available and his appeal under s. 50.2(3)(d) of the Act must fail as a result. I therefore need not make determinations with respect to the remaining components of the exceptional hardship test. Although the impoundment has resulted in inconvenience, the appellant has failed to prove exceptional hardship under the Act and his appeal must fail on this ground.

ORDER

28For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.