Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 14605/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:

Olivia Sherwood Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

VICE-CHAIR: Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant: Olivia Sherwood, Self-represented

For the Respondent: Andrew Sookhoo, Agent

HEARD: March 8, 2023

DECISION

Overview

1Olivia Sherwood, the appellant, appeals from the impoundment of her 2010 Hyundai (the “vehicle”) on January 31, 2023, for 45 days.

2The appellant’s Notice of Appeal lists two grounds for appeal: firstly, that her vehicle was stolen at the time of impoundment; and secondly, that the impoundment will result in exceptional hardship.

3At the beginning of the hearing the appellant indicated she was proceeding on her first ground of appeal only, that her vehicle was stolen at the time of impoundment, and was not proceeding with her second ground of appeal.

ISSUE

4The issue to be determined is:

i. Issue 1: Was the appellant’s vehicle stolen at the time it was detained in order to be impounded?

rESULT

5I find that the appellant’s vehicle was not stolen at the time it was detained in order to be impounded.

ANALYSIS

6The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

7An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on ground (a), that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded.

Issue 1: Was the appellant’s vehicle stolen at the time it was impounded?

8I find the appellant’s vehicle was not stolen at the time it was impounded. The burden is on the appellant to establish that her vehicle was stolen on a balance of probabilities and she has not done so.

9The term “stolen” is not defined in the HTA. The Criminal Code definition of “theft” provides some guidance as follows:

322 (1) Everyone 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 things 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.

10The Divisional Court held in Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745 (Div. Ct), that the Tribunal should not limit the meaning of “stolen” only to an intention to take the vehicle permanently. The Court stated that the word “stolen” could also apply to an intention to take the vehicle temporarily.

11In Auto Zone & Rentals Inc. v. Registrar of Motor Vehicles, 2016 ONLAT 10149, para. 16 (Exec. Chair), the Tribunal held that. within the meaning of s. 50.2(3)(a) of the HTA, “stolen” does not mean the use of an owner’s vehicle contrary to the owner’s instructions.

12The appellant, and her parents Michelle and Richard Sherwood, all testified that because the appellant had injured her leg in January 2023, Michelle and Richard came to visit the appellant at her home on January 31, 2023. Michelle Sherwood decided to stay at the appellant’s home to help during her convalescence. Richard Sherwood returned to his home.

13The appellant loaned her vehicle to Richard Sherwood to drive and gave him the keys. The appellant kept her parent’s vehicle as it was easier for her to get in and out of her parent’s vehicle while injured.

14On January 31, 2023, Richard Sherwood drove the appellant’s vehicle to his home. The appellant’s brother was staying in Mr. Sherwood’s home at that time. Mr. Sherwood put the keys to the appellant’s vehicle on the key rack at his home and took a nap. When Mr. Sherwood awoke, he found the appellant’s vehicle was gone and her brother was gone too. When he telephoned the appellant’s brother, the impoundment of the vehicle was in progress.

15The appellant testified that her brother did not have her permission, or permission from her father to drive it. Richard Sherwood confirmed this lack of permission.

16The appellant, Mrs. Sherwood and Mr. Sherwood all testified that they knew the appellant’s brother had a history of problems with his driving licence and that he had just recently obtained his G1 licence. The appellant, Mrs. Sherwood and Mr. Sherwood all testified that the brother has not driven the appellant’s vehicle or the parents vehicles since his first DUI. The appellant and Mr. Sherwood testified that they had no reason to think that the brother would drive the appellant’s vehicle.

17Mr. Sherwood testified that the brother’s G1 driving licence was also subject to an ignition interlock device condition and that the brother knew he was not to drive the appellant’s vehicle which is not equipped with an ignition interlock device. Mr. Sherwood admitted that it was implied that the brother was not to drive the appellant’s vehicle, as opposed to an explicit instruction, and he did not take any steps to safeguard the keys to the appellant’s vehicle.

18The appellant stated that she did not wish to have any criminal charges laid against her brother for stealing her vehicle because it would complicate his situation, although she did consider and discuss it with the police.

19I am not satisfied that the brother intended to deprive the appellant of the use of her vehicle either temporarily or permanently. There was no evidence from the appellant or her witnesses at the hearing about whether the brother intended to deprive the appellant of the use of her vehicle either permanently or temporarily. Mr. Sherwood testified that he had no knowledge as to why the brother took the appellant’s vehicle.

20Further, documents filed by the respondent establish that the brother has driven family vehicles resulting in their impoundment on two previous occasions. The brother drove a vehicle owned by Mrs. Sherwood in 2017 and as a result Mrs. Sherwood’s vehicle was impounded. The brother drove a vehicle owned by Mr. Sherwood in 2019. Despite these previous impoundments, the appellant and Mr. Sherwood’s failed to provide explicit instructions to the brother on January 31, 2023 that he is not to drive the appellant’s vehicle and failed to take any steps to prevent the brother from having ready access to the keys. I find that the actions of both the appellant and Mr. Sherwood amount to an implied consent or at very least, a reasonable expectation that the brother may drive the appellant’s vehicle on January 31, 2023.

21For the above reasons, I find that the appellant’s vehicle was not stolen.

Conclusion

22As a result, I find that the appellant’s vehicle was not stolen in under s. 50.2(3)(a) of the HTA.

ORDER

23Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.

LICENCE APPEAL TRIBUNAL

Avril A. Farlam, Vice-Chair