Jodi-Lee Comer v. Registrar of Motor Vehicles, 2023 CanLII 72627

Licence Appeal Tribunal File Number: 15043/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 pursuant to section 55.1 of the Act.

Between:

Jodi-Lee Comer

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Bruce Stanton

APPEARANCES:

For the Appellant: Jodi-Lee Comer

For the Respondent: Leila Pereira, Agent for the Registrar

Heard by Teleconference: August 2, 2023

OVERVIEW

1Jodi-Lee Comer (the “appellant”) appeals the impoundment of her 2004 Cadillac Escalade on July 6, 2023, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2The owner of a vehicle which has been impounded in accordance with s. 55.1 may, under the provisions of s. 50.2 of the HTA, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”) that the Registrar release the vehicle.

3The appellant must prove, on a balance of probabilities, that she satisfies at least one of the five grounds set out in s. 50.2(3), for the Tribunal to order the vehicle released. The appellant appeals on the grounds that the vehicle was stolen at the time of the impoundment (s. 50.2(3)(a)) and that the impoundment will result in exceptional hardship (s. 50.2(3)(d)).

ISSUES

4The issues in dispute are:

1. Was the vehicle stolen at the time of the impoundment?
2. Will the impoundment result in exceptional hardship?

RESULT

5I find that the appellant has demonstrated that the vehicle was stolen. The Registrar is thereby ordered to release the vehicle. I do not need to decide whether the impoundment will result in exceptional hardship.

ANALYSIS

Circumstances of the impoundment

6Under section 55.1 of the HTA, a police officer is required to impound a motor vehicle if the officer is satisfied that it was being driven by a person whose licence was under suspension because of certain driving related Criminal Code convictions.

7At the time of the impoundment, Joshua Dafoe, the appellant’s son, was determined to have been driving the subject vehicle while his licence was under suspension. The vehicle had been entrusted to Myranda Watson, the appellant’s daughter-in-law, to attend a medical appointment. Mr. Dafoe and his girlfriend accompanied Ms. Watson and waited in the vehicle while she attended the appointment. The appellant submits Ms. Watson left the car keys with Mr. Dafoe so that they could operate the electric car windows, it being a hot day with the possibility of thunderstorms.

8The appellant submits that she was not present during the impoundment and was informed of the occurrence by Ms. Watson. The appellant describes Ms. Watson as first learning something was wrong when the car was not in the location where she left it, and she saw police beside the detained vehicle at a nearby location. The appellant states that by the time Ms. Watson arrived at the car, Mr. Dafoe and his girlfriend had left. The appellant testified that the police did not inform her of how they determined Mr. Dafoe had driven the car. She testified that Mr. Dafoe’s girlfriend is not a licensed driver either. The appellant further submits that her son and his girlfriend have not been forthcoming as to the circumstances of the vehicle being moved from its place in the doctor’s office parking lot to a different location, nor of any interactions they had with police.

9The respondent submitted that the police officer completed section one of the Notice to Registrar (“NTR”), which contains the driver’s licence information, and were therefore satisfied that he had driven the car. It submits that police must have had some interaction with the driver to complete the NTR.

10The respondent presented unrefuted evidence that Mr. Dafoe’s licence was under suspension for a prescribed Criminal Code offence pursuant to s. 55.1 of the HTA, at the time of the impoundment. As discussed above, subsection 55.1(1) of the HTA obliges a police officer to detain and impound a vehicle if they are satisfied that a person driving the car was doing so while their licence was suspended. Accordingly, the vehicle was lawfully impounded.

Issue 1: Was the vehicle stolen?

11The appellant was aware of her son’s licence suspension and took steps to prevent him from driving it. She testified that she had numerous conversations with him to reinforce that he was prohibited from driving her vehicle. She had recently submitted documents to her auto insurance company, signed by her son, that attested to him being an excluded driver for the purposes of her auto insurance policy. She arranged with her daughter-in-law, Ms. Watson, that she could help with the driving for his transportation needs when they arose, using the Cadillac, the family’s only available vehicle. She testified that she keeps only one set of keys for the vehicle, in her purse and in her bedroom, and gives them only to Ms. Watson when needed. The appellant submits that the vehicle was taken by Mr. Dafoe despite her express prohibitions on his use of her car.

12The respondent submits that since the keys were left with the driver, Mr. Dafoe, the vehicle was implicitly under his charge. In other words, Ms. Watson, whom the car had been entrusted to by the appellant, willingly relinquished the vehicle to Mr. Dafoe. It submits that although the appellant had prohibited the use of the vehicle by her son, giving him the keys to it, even if to operate the windows, was essentially granting him possession of the vehicle, and therefore the appellant cannot claim it was stolen.

13I agree with the appellant. In Marshall v. Ontario (Registrar of Motor Vehicles) [2002] O.J. No. 745 (Div. Ct.) (“Marshall”) the Divisional Court states as follows:

In our opinion, 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, whether permanently or temporarily.

14The Marshall decision essentially creates a two-part test that the appellant must prove in order to establish that the vehicle was stolen, for the purposes of s. 50.2(3)(a) of the HTA. The first test is whether the vehicle was taken without the owner’s consent, and the second part is whether the driver intended to deprive the owner of the vehicle, even temporarily.

15In this case, I find the driver would have been aware of the prohibition against using the appellant’s car. He recently signed insurance documents attesting that he is an excluded driver. Secondly, it is evident that the vehicle was taken from the location where Mr. Dafoe and his girlfriend were left with it. In other words, Mr. Dafoe intentionally took the car, and did so against the express wishes of the appellant. His actions meet the Marshall test for “stolen” for the purposes of s. 50.2(3)(a).

16The NTR establishes that Mr. Dafoe was the driver of the vehicle, and I heard no evidence to refute this fact.

17I therefore find that the appellant has proven, on a balance of probabilities, that the vehicle was stolen.

Issue 2: Will the impoundment result in exceptional hardship?

18Since I find that the vehicle was stolen, it is not necessary to consider the other ground in s. 50.2(3), exceptional hardship, on which the appellant relies.

CONCLUSION

19I find that the appellant has proven, in relation to s. 50.2(3)(a), that the vehicle was stolen. Since the appellant need only satisfy one of the five grounds in s. 50.2(3), in her appeal, it is not necessary to consider the exceptional hardship ground.

ORDER

20Pursuant to subsection 50.2(5) of the HTA, I direct the Registrar to release the impounded vehicle.