Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 15528/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:

Olivia K.P. Legassie Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

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

Appearances:

For the Appellant: Olivia K.P. Legassie, Self-represented For the Respondent: Sadia Ashraf, Representative

HEARD: January 11, 2024

OVERVIEW

1Olivia K.P. Legassie, the appellant, appeals from the impoundment of her 2023 Honda Civic, the vehicle, on December 22, 2023 for 45 days. At the time the appellant’s vehicle was impounded, the appellant’s boyfriend was found by the police 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, and because the impoundment fees and expenses of getting to work without the vehicle are a financial hardship.

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, her boyfriend asked the appellant if he could drive her vehicle and she told him no. The appellant was aware that her boyfriend did not have a valid driver’s licence. The appellant testified that she then put the keys to the vehicle in her nightstand drawer and took a bath. When she had finished her bath, the appellant realized that the vehicle was not in the driveway and her boyfriend was driving it.

10The appellant texted her boyfriend. The appellant’s mother messaged him on social media. Both made requests that the boyfriend bring the car back. The appellant testified that her boyfriend told her mother that was coming back in about five minutes.

11Later, the boyfriend telephoned the appellant to advise her of the impoundment of the vehicle.

12The police called and asked the appellant for a statement and asked her if she would like to press charges and the appellant said no. The appellant testified that she didn’t want to press charges and make the situation worse for her boyfriend. The appellant was looking to diffuse the situation because she has medical conditions that she said become worse with stress.

13The appellant’s mother Tiffany MacDonald testified that the appellant was taking a bath when her boyfriend took the vehicle. Ms. MacDonald testified that the appellant didn’t want to make things worse for her boyfriend, was very emotional at the time of the impoundment and the appellant is a victim because her boyfriend drove the vehicle without the appellant’s permission. Ms. MacDonald also testified that the appellant needs the vehicle to drive her to work and also the appellant’s siblings. Ms. MacDonald testified that she did not hear the boyfriend take the vehicle because she was in her own room at the time.

14The appellant testified that she is not sure what her boyfriend’s intention was about depriving her of the use of the vehicle, either temporarily or permanently.

15The 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.

16The 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.

17Within 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).

18Based on the evidence before me, I am not satisfied that the appellant’s boyfriend 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 was not sure what the boyfriend’s intention was. However, the appellant testified that her boyfriend told her mother that he would be returning in about five minutes which tends to indicate that the boyfriend intended to return the vehicle.

19The appellant declined to charge her boyfriend when specifically asked about this by the police.

20Taken 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?

21I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

22The appellant testified that she works at a hospital which is approximately a 20 minute drive away from her residence and she needs to vehicle to get to work. The appellant said she missed approximately a week of work after the vehicle was impounded because she had to take time off for her mental health. However, the appellant testified that she returned to work on December 31, 2023 and has not missed work since. Since December 31, 2023 the appellant has been able to get to work by taking Uber and bus transit.

23The appellant testified that because of her medical conditions she is concerned about walking to the bus stop which she believes worsens her medical conditions. However, the appellant brought forward no medical evidence to support her concerns.

24The appellant testified that she has not missed any medical appointments since the impoundment, and has been able to obtain groceries and medication by using Uber. The appellant testified that her mother has also not missed any medical appointments.

25The appellant testified that using Ubers and taxis for transportation is financially difficult for her because she has bills to pay, and has no savings.

26Although the appellant testified that she does not own any other vehicle, the records filed by the respondent show that the appellant owns a 2010 Ford for which the licence plate was recently renewed. In her closing submissions the appellant said that her 2010 Ford has no brakes and no winter tires, and also that she intended to give it to someone as a gift.

27Section 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.

28If 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.

29I 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.

30Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

31I accept the appellant’s testimony that arranging alternate transportation is difficult and inconvenient for her. However, under the legislation, inconvenience is not a factor which the Tribunal can take into consideration.

32I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.

33The appellant has been able to get to work by using Uber and taxis, albeit at a cost. The appellant has not missed any days at her work since returning to work December 31, 2023 after taking time off for mental health. The appellant has also been able to obtain groceries and medications and has not missed any medical appoints during the impoundment.

34I find that the appellant has alternatives to the impounded vehicle available during the impoundment period including Ubers, taxis. The appellant also owns another vehicle, the 2010 Ford, which could provide transportation, subject to mechanical work, if necessary to make it roadworthy.

35The appellant has not proven this ground of appeal.

Conclusion

36The 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.

37I 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

38Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.