Licence Appeal Tribunal File Number: 14727/MVIA

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

Between:

Holly Dawn Scott

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

Holly Dawn Scott, Self-Represented

For the Respondent:

Andrew Sookhoo, Representative

HEARD: April 6, 2023

OVERVIEW

1Holly Dawn Scott, the appellant, appeals from the 45-day impoundment of her 2018 Dodge Caravan 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 March 15, 2023. At the time of the impoundment, Christopher Heayn was driving the vehicle while his licence was under suspension resulting from a prescribed criminal 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), order the respondent to release the vehicle. I do not need to decide the ground of exceptional hardship.

ANALYSIS

5The respondent presented evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2018 Dodge Caravan (the “vehicle”);

ii. on March 15, 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 it was impounded.

Whether the vehicle was stolen at the time of the impoundment

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

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 she is self-employed as a house cleaner and has operated Dawn Cleaning for about nine years. She worked alone until about a year ago when she got busier and she employed three people to assist her. She testified that she uses the vehicle for her cleaning business and it contains her work supplies.

10The appellant testified that the driver was a tenant of her good friend and was paying $500 a month in rent. When her friend began having some marital issues, she asked the appellant to allow the driver to reside with her family temporarily and for a few weeks. The appellant resides with her 13 year old daughter and partner. The appellant allowed the driver to sleep on a mattress in her basement. He is not a friend of the appellant, but she has known him for about three months.

11The appellant testified that when the driver moved into her home, she gave him a list of rules that he must abide by including that he had to be home by 11pm each night. She testified that she allowed him to stay temporarily at her home and that he did not have permission to drive her vehicle or that of her partner.

12She testified that, on March 15, 2023, prior to going to sleep herself, she saw the driver watching television in the basement and she thought that he was going to bed as well. At this point, he had been residing in the basement about 12 to 14 days. She testified that when she woke up in the morning, she was shocked to find that her vehicle was not in the driveway. She had no idea where her vehicle was and found that her car keys had been taken. She testified the keys for both her partner’s and her vehicle are kept on a whiteboard near the door. They are not locked up or secured in any manner.

13The appellant testified that the driver must have taken her vehicle keys while she slept. She testified that he did not have her permission or her consent to use her vehicle and he took her vehicle without her knowledge. She testified that she had told him that he cannot touch her vehicle as it is her livelihood, and she does not allow anyone to use it. She testified that she had never allowed him to drive her vehicle on any occasion and he had never asked to borrow it.

14I note that the Notice of Suspension and Impoundment, dated March 15, 2023, states the vehicle was impounded at 11:30pm.

15The appellant testified that after the impoundment, she called her friend for information and eventually spoke on the phone with the driver who told her that he had been stopped by the RIDE program for driving without a licence. He told her that the vehicle was impounded and he was in the waiting room waiting to be picked up. She testified that he told her that he had advised the police that he had taken her vehicle without her permission. She subsequently evicted him and, at present, has no contact with him.

16I find the appellant’s testimony to be creditable and forthright, and I accept it.

17The respondent submits that, as the keys were not locked up or secured, they were accessible to the driver. The keys should have been secured. However, I find that the availability of the keys hardly authorized the driver to take the keys and drive the appellant’s vehicle. I further find that the availability of the keys does not equate to consent to drive the vehicle. I find the driver was a tenant and no more, and did not have permission to drive the vehicle.

18The respondent further submits that the appellant did not report the vehicle as stolen as she should have if it was, indeed, stolen. The appellant testified that she is getting married in Jamaica in a week and that she is stressed, overwhelmed and has a lot of anxiety regarding wedding planning and has not had the opportunity. She testified that when she returns from the wedding, she will look into having the driver charged but, at the moment, she is focused on her wedding. I accept the appellant’s testimony that she is focused on her wedding and that this is a particularly stressful time for her. I find that her failure to report the vehicle as stolen does not sufficiently undermine her assertion that the vehicle was taken without her consent.

19Given 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.

20Having made this determination, there is no need to consider the ground of exceptional hardship.

Conclusion

21The appellant has established that her vehicle was stolen at the time of the impoundment.

ORDER

22On 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.