Licence Appeal Tribunal File Number: 15045/MVIA

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

Between:

Wanda Jacobs

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Rupinder Hans

APPEARANCES:

For the Appellant: Wanda Jacobs, Self-Represented

For the Respondent: Leila Pereira, Representative

HEARD: July 25, 2023

OVERVIEW

1Wanda Jacobs, the appellant, appeals from the 45-day impoundment of her 2007 Ford Focus 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 July 3, 2023. At the time of the impoundment, Bun Yeang was driving the vehicle while his licence was under suspension resulting from a prescribed Criminal Code 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), I order the respondent to release the vehicle. I do not need to decide the ground of exceptional hardship.

ANALYSIS

5The respondent presented uncontradicted evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2007 Ford Focus (the "vehicle");

ii. on July 3, 2023, the police discovered the impounded vehicle being driven by Bun Yeang (the "driver"); and

iii. Mr. Yeang'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. As noted above, 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 the driver her consent or permission to take the vehicle. The Registrar submits that, while the appellant was unaware that her vehicle was being driven by the driver, her daughter who was visiting her, gave the keys to the driver, and thus, consent to operate the vehicle was inadvertently given.

10The appellant testified that on the day of the impoundment, her daughter and her boyfriend, the driver, had come to her residence to stay for the weekend and the driver was to help her around the house by fixing a few things and helping with yard work. The appellant testified that since her spouse's passing there were many things around the house that she was unable to do. She testified that she was cleaning her pool and was cooking dinner for everybody and was back and forth between her kitchen and the backyard. Unbeknownst to her, her daughter took her car keys and gave them to the driver so that he could drive the vehicle. She did not know that her daughter had given her car keys to the driver or that the vehicle was taken by the driver.

11The appellant testified that her daughter and the driver had not asked her for permission to drive the vehicle. She testified that the driver had never driven the vehicle before and had never asked for permission to drive it. She testified that her daughter does not have a driver's licence and does not drive. She found out that the vehicle was taken by the driver when the police called her daughter, who had remained at house with her.

12The appellant testified that she told the police that she wanted the driver charged with theft. The police officer told her that, since her daughter had given the driver the car key, they would not charge him. Instead, the police officer asked if she would like to charge her daughter as she had taken the car keys without her permission. She did not want her daughter charged and believes that the driver should have been charged as he took her vehicle without her consent or permission.

13The appellant testified that she did not foresee that the driver would take the vehicle or that her daughter would take her keys out of her purse and give them to the driver. The appellant submits that it is her vehicle and not her daughter's vehicle, and her daughter could not give consent to the driver to drive the vehicle. She testified that she kept her car keys in a zippered pocket compartment in her purse. Her purse was not kept in the common areas of her home, and instead, kept in her bedroom. She testified that she did not think that anyone would go into her bedroom and into her purse to retrieve the car keys. This is especially the case, as she has never lent the vehicle to her daughter or the driver.

14I find that the appellant did not give consent to the driver to drive her vehicle at the time of the impoundment. I find that the appellant kept the car keys out of the common areas of the home and they were not easily accessible. She kept the keys in a zippered pocket in her purse which she kept in her bedroom. I note that, on no prior occasion, had her daughter or the driver driven the vehicle or asked for permission to drive the vehicle. I find her testimony forthright when she testified that she had no idea that the driver would take her vehicle and she did not give him consent. I further find that her daughter took the car keys and gave them to the driver without her knowledge, permission or consent.

15I further accept the appellant's testimony that, while she does not want her daughter to be charged with theft, that does not mean that she gave her daughter permission to give the car keys to the driver. I accept her testimony that she informed the police that the driver took the vehicle without her permission and that he should be charged with theft. I find that she has met her burden.

16Given 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.

17Having made this determination, there is no need to consider the ground of exceptional hardship.

Conclusion

18The appellant has established that her vehicle was stolen at the time of the impoundment.

ORDER

19On 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.