Licence Appeal Tribunal File Number: 14722/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:

Rachel Matteau

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

VICE-CHAIR:

Colin Osterberg

APPEARANCES:

For the Appellant:

Rachel Matteau, Self-represented

For the Respondent:

Leila Pereira, Representative

Heard by Teleconference:

April 4, 2023

OVERVIEW

1Rachel Matteau (the “appellant”) appeals the impoundment of her 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, Richard Atherton 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.

ISSUES

3The 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

4For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.

ANALYSIS

The vehicle was not stolen

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

6The 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, either permanently or temporarily.

7The appellant and her boyfriend, Tiger Carter, have lived together since 2004 and both regularly use the impounded vehicle. Although the vehicle is registered in the name of the appellant, Mr. Carter generally is allowed to use it without asking the appellant for permission.

8According to Mr. Carter, who testified at the hearing, Mr. Atherton was a friend. On the day of the impoundment, Mr. Carter drove the vehicle to the home of Mr. Atherton’s son to help him install a surround sound system in his bedroom. Both Mr. Atherton and his son were present. According to Mr. Carter, he usually kept his keys attached to his belt loop but placed them on a table in the kitchen that day so that they would not be in his way as he worked on the sound system.

9When Mr. Carter went to get his keys to go home, he discovered that Mr. Atherton had taken the keys and the vehicle without asking him and had not returned. Another person who was in the home at the time told Mr. Carter that Mr. Atherton had taken the vehicle to go grocery shopping.

10Mr. Carter says that he called and texted Mr. Atherton several times over the course of the next two hours telling him that he did not have permission to use the vehicle and to return it immediately. Mr. Atherton never responded. Mr. Carter did not call the police and did not advise the appellant that the vehicle had been stolen. In fact, the appellant texted Mr. Carter, and tried to phone him several times, to ensure he was bringing the vehicle home so that she could use it to drive to work, and Mr. Carter did not respond. At the hearing, Mr. Carter explained that he was hoping Mr. Atherton would return so that his use of the vehicle would not become an issue between himself and the appellant.

11When Mr. Atherton returned to his son’s home, he told Mr. Carter that the vehicle had been impounded. Mr. Carter then walked to the home he shares with the appellant and told her what had happened.

12Neither Mr. Carter nor the appellant told the police on the day the vehicle was impounded that it had been stolen or taken without their permission. It was not until about two or three days later when a police officer arrived at their home to deliver the Notice of Impoundment to the appellant that Mr. Carter told police that Mr. Atherton did not have permission to use the vehicle. Neither Mr. Carter nor the appellant asked the police to have Mr. Atherton charged with stealing the vehicle.

13I am not satisfied that the vehicle was stolen when it was detained in order to be impounded. Mr. Carter’s actions are not consistent with his allegation that Mr. Atherton did not have his consent to use the vehicle. Those actions include: making the keys available to Mr. Atherton by leaving them on the kitchen table while he worked; failing to advise the appellant immediately that Mr. Atherton had taken the vehicle; failing to answer the appellant’s text messages or phone calls in order to avoid telling her that the vehicle was with Mr. Atherton; failing to notify police immediately when he found out that Mr. Atherton had taken the vehicle or when Mr. Atherton failed to respond to his messages; failing to advise the police that the vehicle had been stolen; and failing to have Mr. Atherton charged for stealing the vehicle.

14The appellant’s evidence is based on what she was told by Mr. Carter and not on her own knowledge with respect to the actions of Mr. Atherton. Although not determinative, the fact that the appellant did not report the vehicle to the police as stolen after Mr. Carter told her what happened, is evidence that she did not consider it to have been stolen.

15The evidence presented at the hearing does not satisfy me that the vehicle was stolen on the day it was impounded and the appellant has not proven this ground of appeal.

The appellant has not established exceptional hardship according to the Act

16I also find that the appellant has not established that there are no alternatives to the impounded vehicle available and her appeal under s. 50.2(3)(d) of the Act must be dismissed as a result.

17Section 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.

18Section 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.

19If 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.

20If 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.

21The appellant says that she uses the impounded vehicle to drive to work and to get groceries and prescription medications for Mr. Carter.

22Since the impoundment, the appellant has been using ride sharing services to get to and from work. She says that she is unable to take public transit to work in the morning because she starts before it is in service. She says that she could take public transit home from work but has not investigated that option and has elected to use the ride sharing service for that as well. The appellant missed a couple of days from work when the vehicle was initially impounded but has not missed any time since then.

23The appellant has been able to have her groceries delivered during the impoundment and has been able to complete her other daily errands using alternate means of transportation.

24The appellant says that Mr. Carter was unable to fill his prescriptions because there was no vehicle available for him to use. I do not find this allegation reasonable. The pharmacy where Mr. Carter fills his prescriptions is within three kilometers of their home and no reasonable explanation was given for failing to attend there using public transportation, using a ride sharing service, or walking.

25I find that the appellant has not proven that there are no alternatives to the impounded vehicle available and her 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 her appeal must fail on this ground.

ORDER

26For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.