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 pursuant to Section 55.1(3) of the Act.
Between:
Susan Speakman
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR:
Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant:
Susan Speakman (self-represented)
Joshua Speakman (appellant’s son)
For the Respondent:
Leila Pereira, Agent
Heard by Teleconference:
March 7, 2023
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant, Susan Speakman, appeals the 45-day impoundment of her 2010 Subaru motor vehicle under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
2The appellant’s vehicle was impounded on February 7, 2023, after police determined that the appellant’s son, Joshua Speakman, was operating the vehicle at the time it crashed into a concrete block wall. Mr. Speakman was operating the vehicle as the lone occupant despite the fact that his driver’s licence was under suspension for a Criminal Code conviction at the time.
3Subsection 55.1(1) of the Act allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the driver’s licence of the person who is driving a vehicle is under suspension for certain Criminal Code offences. The vehicle was impounded pursuant to this subsection of the Act.
ISSUE
4The appellant is appealing the impoundment on two grounds: that the vehicle was stolen at the time of the impoundment, and that the impoundment will result in exceptional hardship. These grounds are set out in section 50.2(3) of the Act.
5The onus of proving one or both of these grounds of appeal rests with the appellant. To succeed in her appeal, the appellant must prove only one ground on a balance of probabilities.
CONCLUSION
6On the evidence before me at the hearing, I find that the appellant has failed to demonstrate on a balance of probabilities that the vehicle was stolen at the time of impound or that the impoundment will result in exceptional hardship.
ANALYSIS
Was the vehicle stolen at the time of the impound
7There is no dispute that the vehicle was being driven by Mr. Speakman whose licence was under a Criminal Code suspension at the time. It is the appellant’s position that her son took the vehicle without permission. This pattern of non-compliance is reflected in Mr. Speakman’s very poor driving record which includes careless driving, speeding and driving while impaired. This is also not the first time he has taken his mother’s vehicle without permission.
8The Divisional Court in Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745 (Div. Ct.) (“Marshall”) held that a vehicle is “stolen” under the Act when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, either permanently or temporarily.
9The appellant is a single mother who lives in a condominium with her adult son. She testified that her son took the keys to her vehicle without permission, violating a rule that she had that he must never operate her vehicle. She usually secures a spare set of keys hidden in her desk drawer. She explained that she was in the process of cleaning out her desk when they were left out in plain view to her son.
10Mr. Speakman subsequently took the keys without permission and removed the vehicle from the underground garage. He appeared as a witness at the hearing and explained that he wanted to make a trip to the store. He confirmed that he and his mother spoke multiple times about not taking the car. He admits to ignoring these rules that his mother established and that he took the car without permission. He expressed regret for this decision at the hearing.
11The appellant testified that she was unaware that her vehicle was taken without her consent. It was not until Mr. Speakman returned to the condominium that he explained that he was in a car accident and abandoned the vehicle at the scene. This was approximately one block from the condominium.
12I find that the appellant should have taken more care in securing the spare keys especially since this is not the first time that her son took the vehicle without permission. I find that the appellant did not exercise due care in preventing her son from driving the vehicle and could have taken more proactive steps given his history of non-compliance.
13During the hearing, the appellant was unable to answer the Registrar of Motor Vehicles’ (the “respondent’s”) question at cross examination as to why she did not place the keys in a fire safety box which she has available to her. She responded that she “did not have a good answer for that.” She explained she was trying to be proactive and trying to be supportive at the same time.
14I find that her laissez-faire approach to securing her keys, especially knowing that they were out in the open on her desk, does not suggest any concern with the vehicle being taken without her consent. Mr. Speakman’s lack of judgement in the past should have been sufficient reason for her to take additional measures, in the circumstances, to prevent him from driving. I also take into consideration that even when the spare keys were in the desk, they were not locked in any way. The desk is also located in a common area of the condominium and Mr. Speakman would have access at any time.
15I find that the appellant has failed to convince me on a balance of probabilities that the vehicle was stolen at the time of impound.
Has the appellant experienced exceptional hardship as a result of the impound
16I find that the appellant has failed to show that the impoundment will cause exceptional hardship for the reasons which follow.
17I received testimony which would suggest that an alternative to the impounded vehicle is available. According to the Regulation, if 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. Subsection 10(4) of the Regulation 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
18With respect to the appellant’s claim that the impoundment will cause exceptional hardship, I am guided by s. 10 or O. Reg 631/98 under the Act (the “Regulation”) which sets out the criteria and factors that the Licence Appeal Tribunal (the “Tribunal”) must consider in making this determination. This section requires a finding about whether there are no reasonable alternatives to the impounded vehicle.
19The appellant also explained that the car was essentially totaled as a result of the crash. She has sent pictures to a repair shop who found that the car is not fixable. The appellant states that this will place her into financial hardship as she will have to replace the vehicle. She also states that it is an additional cost she has not planned for.
20Given that the vehicle is not usable because of the damages it sustained in the accident, the fact that it is impounded puts the appellant in no different position with respect to its use than if it had not been impounded. On this basis alone, I am not satisfied that the appellant has demonstrated that the impoundment will cause exceptional hardship under the Act.
21The appellant is a single parent to her son and works as an Inside Sales Representative. She works primarily from home but is required to go into the office from time to time. She estimates this to be approximately 1-2 times per week.
22The appellant states that she has been able to attend out of town meetings by getting a ride from her boss. She states she has not had many of those occasions and most of the meetings occur locally at her in-town work location. She has not missed any days of work while her vehicle was impounded and has had access to a vehicle temporarily loaned to her by her ex-husband. She states that she has had to cancel a dentist appointment and massage therapist appointment. However, I did not hear evidence linking those cancellations to not having transportation to attend those appointments.
23In terms of groceries and other necessities, the appellant states that she has a grocery store within a 10-minute walk from her home. She has managed to run other errands while her vehicle has been impounded.
24The appellant testified that not having a vehicle has made it inconvenient for her to visit her aging mother who currently resides in a retirement home in Hamilton, Ontario. However, I did not receive any evidence to suggest that her mother’s health and safety is dependent on the vehicle which is currently in impound. In fact, her mother is in a supervised facility where she receives 24-hour care.
25I find that the appellant has been able to maintain a near normal routine while her vehicle has been impounded. While I don’t doubt the inconvenience that is caused by the loss of her vehicle, the Tribunal cannot consider this as a viable reason to justify the release of her vehicle from impound.
26Because the appellant has failed to show that there is no alternative to the impounded vehicle, I am also precluded by s. 10(2) of the Regulation from considering financial or economic loss, loss of employment or an employment opportunity, or loss of education or training or an opportunity for employment or training. Regardless, I do not find that any of these conditions are present here.
27Moreover, I find that there is an alternative which is available and has been utilized by the appellant. In circumstances where that alternative vehicle is not available, the appellant has managed to complete errands, attend work and other obligations without exceptional hardship. In considering the grounds of exceptional hardship, I have determined that alternative modes of transportation exist for the appellant.
28The respondent asserts that the vehicle was properly impounded in accordance with 55.1(1) of the Act. The respondent also submits that the vehicle was not stolen at the time of the impound and that the appellant has other options available to her that disqualify her from relying on the grounds of exceptional hardship.
29I accept the respondent’s position on both accounts. I find that the appellant failed to prove on a balance of probabilities that the vehicle was stolen and that she meets the test for exceptional hardship, as set out in the Regulation. This is based on the alternatives available to her and the absence of any situation that can be deemed a danger to health and safety for her or any users of the vehicle.
ORDER
30For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I confirm the impoundment order.
LICENCE APPEAL TRIBUNAL
Raymond C. Ramdayal, Member
Released: April 14, 2023