Crystal Ward v. Registrar of Motor Vehicles, 2023 CanLII 98428

Licence Appeal Tribunal File Number: 15224/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:

Crystal Ward

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant: Crystal Ward, Self-represented

For the Respondent: Andrew Sookhoo, Representative

Heard by Teleconference: October 4, 2023

OVERVIEW

1Crystal Ward, the appellant, appeals from the impoundment of her 2018 Nissan, the vehicle, on August 26, 2023 for 45 days. At the time it was impounded, the appellant’s vehicle was stopped by the police and the appellant’s cousin was found to be driving it without a valid driver’s licence.

2The appellant appeals on two grounds: that her vehicle was stolen at the time of impoundment, and that the impoundment will result in exceptional hardship to her because she needs the vehicle to get to her work, to transport herself and other family members to medical appointments and to provide transportation for her mother.

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 her vehicle was stolen on a balance of probabilities and she has not done so.

9The appellant testified that on the day the vehicle was impounded, she was at her sister’s residence in another municipality and the driver of the vehicle, her cousin, was there also at a birthday party for her sister. The appellant decided to walk to a friend’s residence and left the keys to the vehicle with her sister in case her sister needed to move the vehicle. The appellant testified that her sister put the keys on the counter. The appellant testified that while she was on her walk, her cousin took the keys and drove her vehicle to the liquor store. The appellant said she was unaware of this until she saw her vehicle at the liquor store and learned that it had been impounded.

10The appellant conceded in her testimony that she was not present at her sister’s home when her cousin took the keys and drove her vehicle. The appellant testified that her cousin stole her vehicle and on cross-examination denied that her sister gave her cousin the keys to her vehicle. The appellant testified that she doesn’t know what her cousin was thinking and had no evidence about whether her cousin intended to deprive her of the use of the vehicle, either temporarily or permanently.

11The appellant’s testimony is based on what she learned from others about how her cousin came to be driving her vehicle and not her own knowledge about the actions of her cousin. The appellant’s sister did not provide any corroborating evidence at the hearing.

12The 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.

13The 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.

14Within 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).

15I am not satisfied that the appellant’s cousin intended to deprive the appellant of the use of the vehicle either temporarily or permanently. When asked about this in cross-examination, the appellant said she had no evidence to give about this.

16The appellant had no evidence that she charged her cousin with stealing her vehicle or even reported the vehicle stolen.

17Taken in totality, the evidence presented at the hearing does not satisfy me that the vehicle was stolen on the day it was impounded. The appellant has not proven this ground of appeal.

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.

19The appellant testified that she works at a daycare and a school in her municipality and has been walking to this employment but unable to do any work outside the municipality where she resides because her vehicle is impounded. The appellant said she missed three days of work and her two youngest children missed three days of school because she had to get a ride back to her residence in the municipality where she lives after the vehicle was impounded. Since the appellant has returned to her residence, she has not missed work in the municipality where she lives and her children have not missed school.

20The appellant testified that her two youngest children have missed medical appointments with their family physicians, these appointments have been re-scheduled.

21The appellant also testified that she has been able to walk to the grocery store to get groceries for herself and her three children. Although the appellant testified that she takes her mother grocery shopping and to medical appointments, she stated that her mother has not yet needed groceries that she cannot get by walking to a local convenience store and she is not aware of any medical appointments her mother has missed during the impoundment period.

22The appellant testified that rental vehicles, ubers and taxis are available in the municipality where she lives although she said she cannot afford to use these services.

23Section 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.

24If 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.

25I 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.

26Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

27It is apparent from the appellant’s testimony that arranging alternate transportation is financially difficult and inconvenient for her. However, under the legislation, inconvenience is not a factor which the Tribunal can take into consideration.

28I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.

29The appellant has been able to walk to her daycare and school employment and has not missed any days at this employment since returning to her residence after the impoundment and has only missed some work outside of the municipality where she lives. The appellant has also been able to walk to the grocery store, her children have been able to get to school and the children’s medical appointments during the impoundment period have been re-scheduled.

30I find that the appellant has alternatives to the impounded vehicle available during the impoundment period including walking, ubers, taxis and vehicle, albeit at a cost rental.

31The appellant has not proven this ground of appeal.

Conclusion

32The appellant has not established either of her grounds of appeal. The appellant has not established that her 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.

33I 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

34Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.