Licence Appeal Tribunal File Number: 15549/MVIA
In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.
Between:
Alexandrina Olsen
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR: Rupinder Hans
APPEARANCES:
For the Appellant: Alexandrina Olsen
For the Respondent: Sadia Ashraf, Representative
HEARD: January 26, 2024
OVERVIEW
1The appellant Alexandrina Olsen appeals from the 45-day impoundment of her 2007 Mazda CX9 motor vehicle pursuant to 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 January 8, 2024. At the time of the impoundment, Stephen Shaw was driving the vehicle while his licence was under suspension due to a prescribed Criminal Code conviction.
2The appellant's vehicle was impounded for 45 days until February 22, 2023.
3The 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
4The issues in dispute are:
i. Whether the vehicle was stolen at the time it was detained in order to be impounded 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
5I find the vehicle was stolen, and therefore, pursuant to section 50.2(5) of the Act, I order the release of the motor vehicle. As a result, I do not need to decide the ground of exceptional hardship.
ANALYSIS
6The respondent presented evidence which establishes that:
i. the appellant is the registered owner of the impounded vehicle, a 2007 Mazda CX9 (the "vehicle");
ii. on January 8, 2024, the police discovered the impounded vehicle being driven by Stephen Shaw (the "driver"); and
iii. the driver's driving privileges were under suspension as a result of a prescribed Criminal Code conviction at the time it was impounded.
Whether the vehicle was stolen at the time of the impoundment
7The 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.
8The word "stolen" is not defined in the Act.
9The 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.
10The appellant testified that she had not given the driver her consent or permission to drive the vehicle.
11The appellant testified that she and her daughter both utilize the vehicle. Her daughter would usually use the vehicle during the day to transport her children to school and attend work. The appellant would normally use the vehicle during the late afternoon and evenings to run her errands and take her elderly father to his doctor's appointments. The vehicle is usually parked at her daughter's home so that she can use it to transport her children to school and attend work in the mornings.
12The appellant testified that the driver is her daughter's ex-partner. She testified that she has never let the driver use the vehicle and he has never asked to use the vehicle. To her knowledge, he has never drove the vehicle.
13The appellant testified that she did not give him permission to use the vehicle on the day of the impoundment, or any other time. She found out about the impoundment when her daughter called her in the morning to advise the vehicle had been impounded during the night. She has no idea why the driver took her vehicle and she has not spoken to him since the impoundment.
14The appellant's daughter, Sarah Olsen, attended the hearing and testified that she has known her ex-partner, the driver, for about 15 years and she was fully aware that he was not permitted to drive. She testified that the driver was aware that she knew about his driver's licence status, and he had never asked her permission to use the vehicle. She testified that it was well known that no one else is allowed to touch the vehicle.
15Sarah Olsen testified that, on the day of the impoundment, the driver was in her home visiting the four children they share. She testified that the driver does not reside in her home. She testified that she put the children to bed, and she and her newborn baby went to bed around 8:15pm. She testified that while she slept, the driver took the vehicle keys out of her purse which is kept inside the baby's diaper bag. The diaper bag is kept on her bedroom floor beside her nightstand. She testified that she did not hear him come into the bedroom and take the car keys. She testified that if she had heard him, she would have stopped him as he was not permitted to drive. She did not foresee that he would enter her bedroom and access the diaper bag, and then her purse, to retrieve the vehicle keys. She did not know where he was going with the vehicle. She testified that he had not used the vehicle on any prior occasion.
16Sarah Olsen further testified that she found out the vehicle was taken when the driver called her to advise that he had been pulled over by the police. She had been asleep at the time, and was upset. I note that the Notice to Registrar/Notice of Suspension and Impoundment records the time of the impoundment as 21:59. Sarah Olsen asked the driver if she could speak with the police. She told the police that the driver had taken the vehicle without permission. She did not ask that the driver be charged with theft of the vehicle.
17I find the appellant's and her daughter's testimony to be credible and forthright, and I accept it.
18I find that while the appellant gave permission to her daughter to drive the vehicle, this permission did not extend to the driver, an ex-partner of her daughter, who did not reside in her daughter's home. I find the testimony of the appellant credible when she stated that she had never let the driver use her vehicle, and he had never asked to use it. I find that the appellant's daughter kept the vehicle keys out of the common areas of her home and they were not easily accessible. The keys were kept in her purse which was kept in her baby's diaper bag. The diaper bag was kept in her bedroom on the floor beside her nightstand while she slept. At no time, had the driver ever asked the appellant or her daughter if he could use the vehicle.
19I accept Sarah Olsen's testimony that she informed the police that the driver took the vehicle without permission. While the appellant did not ask the police to charge the driver with theft of the vehicle, and he was not charged in this respect, I do not find that this leads to the conclusion that the appellant gave consent or permission to the driver. To the contrary, the testimony of the appellant was unequivocal that the driver did not have consent or permission to drive the vehicle.
20In addition, I find the driver intended to deprive the appellant of the use of the vehicle. He took the vehicle keys from inside his ex-partner's purse which was inside a diaper bag while his ex-partner was asleep and unbeknownst to her or the appellant. I find his actions demonstrate that he intended to deprive the appellant of the vehicle. I note the driver has never been permitted to use the vehicle in the past.
21I find that the appellant 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 for the purposes of s. 50.2(3)(a). The vehicle should therefore be released.
23The appellant need only prove one of the grounds in s. 50.2(3) of the Act in order for her vehicle to be ordered released. Since I find that the vehicle was stolen, there is no need to consider the ground of exceptional hardship in s. 50.2(3)(d).
Conclusion
24The appellant has established that her vehicle was stolen in accordance with s. 50.2(3)(a) of the Act.
ORDER
25Pursuant to subsection 50.2(5) of the Act, I direct the Registrar to release the impounded vehicle.
LICENCE APPEAL TRIBUNAL
__________________________
Rupinder Hans
Adjudicator
Released: February 8, 2024