16302
Licence Appeal Tribunal File Number: 16302/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:
Bishnu Kandel
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
Vice-Chair:
Hande Bilhan
APPEARANCES:
For the Appellant:
Bishnu Kandel, Appellant
For the Respondent:
Sadia Ashraf, Representative
Heard by Teleconference:
October 16, 2024
OVERVIEW
1Bishnu Kandel (the “appellant”) appeals the impoundment of her 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 September 26, 2024. At the time of the impoundment, Dinesh Sapkota, the appellant’s husband, was driving the vehicle with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.
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 Act, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”) allowing the appeal and that the Registrar release the vehicle.
3The appellant appeals on the grounds that the vehicle was stolen at the time it was detained in order to be impounded and that the impoundment will cause exceptional hardship.
ISSUES
4The issues in dispute are:
whether the vehicle was stolen at the time it was detained in order to be impounded in accordance with section 50.2(3)(a) of the Act; and/or,
whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.
RESULT
5For the reasons set out below, the appeal is dismissed, and the impoundment of the vehicle is confirmed.
ANALYSIS
The vehicle was not stolen
6I find that the appellant has not established that the vehicle was stolen at the time it was detained in order to be impounded.
7The Divisional Court in Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745 (Div. Ct.) held that 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, either permanently or temporarily.
8The appellant says that she has told her husband numerous times that he is not to drive her vehicle because his licence is suspended and submits that he has not done so in the past year.
9On the day of the impoundment, the appellant was working in British Columbia (“B.C.”) as a traveling nurse and her husband was stopped by the police while driving with a suspended licence. She submits that she didn’t know he would take her vehicle and that he knew he wasn’t allowed to drive it. She therefore argues that the vehicle was stolen.
10The appellant testified that she kept one key card for the vehicle in her purse and stored another one in a safety box in their bedroom along with other valuables. She admits that the safe was kept unlocked and remained accessible to her husband at all times. She also gave vague evidence on why she did not utilize the “pin to drive” option available with Tesla vehicles which would have prevented the husband from driving the vehicle, even if he had access to the key card. When asked if she had considered parking her vehicle elsewhere given that she would be away for a month, she testified that she didn’t think he would take the vehicle because he doesn’t have a licence and he knew she had told him not to.
11The appellant knew that her husband had been charged with and convicted of a Criminal Code offence while he had taken her vehicle to get it washed in August 2023. He has had several other Criminal Code charges resulting in suspensions of his licence and a previous vehicle impoundment of his own vehicle in 2017.
12Because of the above, I am not satisfied that the appellant took sufficient steps to stop or discourage her husband from driving her vehicle. I find the appellant’s submission that she told him that he was not allowed to drive her vehicle to be insufficient under the circumstances. Given her husband’s past driving history and her absence from the province for an entire month, a reasonable person would have taken additional measures such as locking up the key card for the Tesla, adding a pin to drive, or even parking the vehicle elsewhere where it would not be accessible to the husband.
13There was no reason offered why her husband was driving the vehicle at the time it was impounded. When questioned, the appellant testified that she hadn’t asked him because she was so taken aback by the news. When pressed further on this point she responded that he hadn’t given her a reason. I find it troubling that more than two weeks after the impoundment the appellant has not even established what led to an unlicenced individual accessing and driving her vehicle. On a balance of probabilities, it appears that the husband feels entitled to the vehicle despite the registration being in the appellant’s name and that he had not been provided with necessary boundaries and deterrents not to drive the vehicle.
14I find that leaving the vehicle accessible in the driveway while leaving for B.C. for a month, leaving the key card accessible to the husband in a known location, and not attempting to secure her vehicle through a pin, amounts to implied consent for him to drive the vehicle.
15The 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 and it fails.
The appellant has not established exceptional hardship according to the [Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html)
16I also find that the appellant has not established exceptional hardship under the Act and the appeal on that ground must be dismissed as a result.
17Section 10 of O. Reg. 631/98 under the Act (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.
18Section 10(1) requires the Tribunal to first consider whether an alternative to the impounded vehicle is available. 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.”
19If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under s. 50.2(3)(d) of the Act will be dismissed.
20If the owner proves that there is no alternative to the impounded vehicle available, then s. 10(1) of the Regulation requires the Tribunal to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle, or to the environment or community in whose service the motor vehicle is ordinarily used. According to s. 10(3), if the appellant has proven that there is no alternative to the impounded vehicle the Tribunal may, in limited circumstances, consider financial, economic, or employment losses. The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.
21The appellant says that she uses the impounded vehicle to drive to work and that the vehicle is required to transport her children to school and daycare. She submits that she uses the vehicle for other errands and programs for the children as well as for medical appointments.
22The evidence establishes that the appellant has alternatives to the impounded vehicle available to her. The appellant testified that she is able to access public transportation, taxis, and ride-sharing services for her household’s needs. The appellant’s children had been walked to schools by her mother-in-law while she was working in B.C. and her parents had helped with bringing groceries and helping with weekend activities. While inconvenient in the case of public transit and walking to school, and expensive in the case of taxis and ride-share options, these are reasonable alternatives, nevertheless.
23Although the impoundment has resulted in inconvenience, the appellant has failed to prove exceptional hardship under the Act and her appeal fails on this ground.
ORDER
24For the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.
Released: October 29, 2024
Hande Bilhan
Vice-Chair