Marlene F. Thompson v. Registrar of Motor Vehicles, 2023 CanLII 44318

Licence Appeal Tribunal File Number: 14862/MVIA

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

Between:

Marlene F. Thompson

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Rupinder Hans

APPEARANCES:

For the Appellant: Marlene F. Thompson, Self-Represented

For the Respondent: Leila Pereira, Representative

HEARD: May 16, 2023

OVERVIEW

1Marlene F. Thompson, the appellant, appeals from the 45-day impoundment of her 2014 Dodge Journey 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 April 16, 2023. At the time of the impoundment, her son Kyle Thompson 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.

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.

RESULT

4I find the vehicle was stolen, and therefore, pursuant to section 50.2(5), I order the respondent to release the vehicle.

ANALYSIS

5The respondent presented evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2014 Dodge Journey (the "vehicle");

ii. on April 16, 2023, the police discovered the impounded vehicle being driven by her son Kyle Thompson (the "driver" or "her son"); and

iii. Mr. Thompson'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 on the day of the impoundment she had not given her son consent to take the vehicle as his licence was suspended. The appellant's son and daughter live with her.

10The appellant testified that on one prior occasion, in November 2022, her son had driven the vehicle without her permission. At the time, she had been leaving her vehicle keys in her coat pocket and her coat was in the front closet. He had taken the keys from her coat pocket while she slept, and she believes he drove to Tim Hortons. The vehicle was not impounded on that occasion but she was upset. She testified that after that occurrence she told him that he did not have permission to use the vehicle.

11After that occurrence, the appellant testified that she changed her behaviour and no longer left the keys in the common areas of her house while she slept. Instead, she began hiding/placing the keys in the back of a drawer in her nightstand which is located in her bedroom. She thought that by taking the keys out of the common areas of the house and putting them in her nightstand while she slept that her son would no longer have access. She also thought that if he tried to take the keys from the drawer of the nightstand, that she would hear him and wake up. She undertook these measures after the first time he took her car without her permission and to ensure that he did not do so again.

12The appellant testified that her husband passed away recently, in late February 2023, which has been difficult. She testified that after her husband passed away, she began to feel leery that her son may try to drive the vehicle. Thus, she again told him that he was not to use the vehicle.

13The appellant testified that on the date of the impoundment, she had brought the keys into her bedroom and placed them on the nightstand but not in the drawer as per her usual practice. She testified that she forgot to put the keys in the drawer as she had a lot on her mind. She testified that, since November 2022, he had made no further attempts to take the vehicle. She believes that while she slept, her son took the keys off of her nightstand around 3:00 a.m. or 3:30 a.m. She did not hear him come into her bedroom and remove the keys from her nightstand.

14The appellant testified that her daughter, who also lives with her, came into her bedroom around 4:40 a.m. and told her that her son had been driving and the vehicle was impounded. The appellant testified that she was livid and very upset.

15I note the Notice of Suspension and Impoundment, dated April 16, 2023, states the driver was stopped at 4:01 a.m.

16The appellant further testified that her son has been charged with driving while disqualified and for possession of substances. She did not report him for stealing the vehicle because he already had pending charges and she did not want him to be incarcerated. She felt that her son was grieving the recent loss of his father and she did not feel that pressing charges was in the best interests of her family's emotional health.

17I find the appellant's testimony to be creditable and forthright, and I accept it.

18The Registrar takes the position that after the prior November 2022 incident, the appellant did not take additional preventative measures to ensure that her son did not take her vehicle again. The Registrar submits that the appellant did not lock her bedroom door or place the keys in a locked nightstand drawer. The Registrar submits that the appellant could have taken additional steps.

19I find that, after the November 2022 incident, the appellant undertook preventative measures by taking the keys out of the common areas of the home while she slept. She also verbally told her son that he was not to drive the vehicle. While on this particular occasion, the appellant did not place the keys in the drawer of the nightstand, she did keep the keys on her nightstand beside her bed. I find that her actions were a clear and unequivocal indication to her son that he did not have her consent to drive the vehicle.

20The respondent further submits that, as the keys were not locked up or secured, they were accessible to the driver. However, I find that the availability of the keys hardly authorized the driver to take the keys and drive the appellant's vehicle. I find that the availability of the keys does not equate to consent to drive the vehicle. I find that the appellant told her son on at least two occasions that he did not have her consent to drive the vehicle. As recently as February 2023, she told him that he was not to drive the vehicle.

21The respondent further submits that the appellant did not report the vehicle as stolen as she should have if it was stolen. I accept the appellant's testimony that she does not want her son to be incarcerated, feels he is already facing serious charges, and wants to protect her family's emotional health. This motivation and her lack of reporting does not, in my opinion, equate to permission to use the vehicle. I find her actions made it clear to her son that he did not have her consent to drive the vehicle. I further find that she did undertake preventative measures, although unsuccessfully, to keep her son from driving the vehicle. She has met her burden.

22Given 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.

Conclusion

23The appellant has established that her vehicle was stolen at the time of the impoundment.

ORDER

24On 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.