Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 14865/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:

Cody Gibbons Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

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

Appearances:

For the Appellant: Cody Gibbons, Self-represented For the Respondent: Andrew Sookhoo, Representative

HEARD: May 12, 2023

OVERVIEW

1Cody Gibbons, the appellant, appeals from the impoundment of his 2008 Dodge, the vehicle, on May 1, 2023 for 45 days. At the time it was impounded, the appellant’s vehicle was stopped by the police and the appellant’s father was found to be driving it without a valid driver’s licence.

2The appellant appeals on two grounds: that his vehicle was stolen at the time of impoundment, and that the impoundment will result in exceptional hardship to him because he needs the vehicle to get to work in another municipality through the week, to get to medical appointments and to provide transportation for his father to get healthcare supplies from the pharmacy for his girlfriend.

ISSUES

3The issues in dispute are:

i. Issue 1: Was the appellant’s vehicle stolen at the time it was detained in order to be impounded within the meaning of s. 50.2(3)(a) of the HTA.

ii. Issue 2: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

RESULT

4I find that the appellant’s vehicle was not stolen at the time it was detained in order to be impounded. I find that the impoundment will not result in exceptional hardship.

ANALYSIS

5The 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.

6An 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 grounds (a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded, and (d), that the impoundment will result in exceptional hardship.

7Section 55.1(1) provides that where an officer is satisfied that a person driving a motor vehicle on a highway while his or her driver’s licence is under suspension, or in contravention of a condition that prohibits him or her from driving a motor vehicle that is not equipped with an ignition interlock device, shall detain the vehicle and shall impound it under s. 55.1(3).

Issue 1: Was the appellant’s vehicle stolen at the time it was detained in order to be impounded within the meaning of s. 50.2(3)(a) of the HTA

8I find the appellant’s vehicle was not stolen at the time it was impounded. The burden is on the appellant to establish that his vehicle was stolen on a balance of probabilities and he 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. Crt), 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.

11Within 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: See Auto Zone & Rentals Inc. v. Registrar of Motor Vehicles, 2016 ONLAT 10149, para. 16 (Exec. Chair).

12The appellant testified that on the day the vehicle was impounded, he was very tired and had to be up at 4a.m. the next day to drive to his place of employment in another municipality and so went to bed early. The appellant put the keys to the vehicle near the front door at his home. His father has access to his home. The appellant testified that he knew his father’s driver’s licence was suspended.

13The appellant testified that he was awoken by his father later that night and informed that the vehicle had been impounded. The appellant said his father had taken the vehicle to drive to the pharmacy to obtain health care items that his father’s girlfriend needed. Usually he drives his father to the pharmacy to pick up these items on the weekend but did not do so on May 1 because he went to bed early.

14The appellant testified that he did not consider pressing charges against his father because he felt that getting health care items for his father’s girlfriend was important, almost an emergency because his father’s girlfriend has several health conditions and can get very sick without these items.

15I am not satisfied that the appellant’s father intended to deprive the appellant of the use of the vehicle either temporarily or permanently and there was no evidence about this from the appellant.

16There was no evidence from the appellant that, even though he knew his father did not have a valid driver’s licence, he told his father he is not allowed to drive his vehicle and he failed to take any steps to prevent his father from having ready access to the keys. The appellant testified that his father has access to the appellants residence and the keys were left near the front door. I find that these actions of the appellant amount to an implied consent or at very least, a reasonable expectation that the father may drive the appellant’s vehicle on May 1, 2023.

17For the above reasons, I find that the appellant’s vehicle was not stolen.

Issue 2: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation

18I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

19Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. 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.

20If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1) I must consider whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

21I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.

22Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

23The appellant testified that he is a construction work and is currently working on construction through his union in another municipality approximately a two hour drive from his residence. Typically he stays in a hotel during the week, needs his vehicle to drive some 20 minutes to the jobsite and then needs his vehicle to return home on the weekends. The appellant testified that he has been unable to work since the date his vehicle was impounded. His employer has suggested that he take two weeks vacation which he has done. The appellant has been able to walk to the pharmacy to get the items needed by his father’s girlfriend and has not yet needed groceries.

24Although the appellant testified that he needs his vehicle to drive to his work, he testified that he has not looked into renting another vehicle during the impoundment period because of the cost and his credit rating. He said that he has not been able to arrange a ride with others to his current place of employment and has missed one medical appointment.

25Vehicle records filed by the Registrar confirm that the appellant, in addition to the impounded vehicle, is the registered owner of another vehicle, a 2002 Chevrolet. Although the appellant said he no longer has this vehicle, the appellant brought forward no evidence to establish that he no longer owns the 2002 vehicle and the records of ownership remain as of the date of the hearing.

26It is apparent from the appellant’s testimony that that arranging alternate transportation is difficult and inconvenient for him. However, under the legislation, inconvenience is not a factor which the Tribunal can take into consideration.

27I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.

28The appellant’s employer has allowed him to take two weeks vacation during the impoundment period. Although the appellant raised concerns about whether he will be able to keep his employment during the impoundment period, given that his employer is aware of the impoundment and has been co-operative so far, the appellant has not established that his continued employment is in jeopardy at this time.

29I find that the appellant has alternatives to the impounded vehicle available during the impoundment period including the 2002 Chevrolet if he still has access to it, seeking rides and assistance others including ubers and taxis and likely vehicle rental. For his personal needs, the appellant has been able to walk to the pharmacy and has missed one medical appointment which is likely to be able to be re-scheduled.

Conclusion

30The appellant has not established either of his grounds of appeal. The appellant has not established that his vehicle was stolen at the time it was detained in order to be impounded within the meaning of s. 50.2(3)(a) of the HTA.

31I also find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

32Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.