Licence Appeal Tribunal File Number: 16324/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:

Matthew Lee Giberson

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION and ORDER

VICE-CHAIR:

Robert Maich

APPEARANCES:

For the Appellant:

Matthew Lee Giberson

For the Respondent:

Sadia Ashraf, Agent for the Registrar

Heard by Teleconference:

October 22, 2024

OVERVIEW

1Matthew Lee Giberson (the “appellant”) appeals the impoundment of his 2010 Toyota Matrix on September 26, 2024, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

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”) that the Registrar release the vehicle.

3For the Tribunal to order the vehicle released, the appellant must prove, on a balance of probabilities, that he satisfies at least one of the five grounds set out in s. 50.2(3) of the Act. The appellant appeals on the grounds that the motor vehicle was stolen at the time it was detained in order to be impounded (s. 50.2(3)(a)).

ISSUES

4The issues in dispute are:

i. Was the motor vehicle stolen at the time it was detained in order to be impounded?

RESULT

5I find that the vehicle was not stolen at the time it was detained in order to be impounded. The Registrar’s order is confirmed.

ANALYSIS

Circumstances leading to the impoundment.

6Under s. 55.1 of the Act, where a police officer is satisfied that a person was driving a motor vehicle while his or her licence was under suspension for certain driving-related Criminal Code convictions, the officer must detain and impound the vehicle.

7At the time the appellant’s vehicle was detained, it was being driven by Talja Marie Dithurbide (the “Driver”). The respondent presented unrefuted evidence that the driver’s licence was under suspension for a prescribed Criminal Code offence pursuant to s. 55.1 of the Act at the time it was detained. Accordingly, the vehicle was lawfully impounded.

Was the motor vehicle stolen at the time it was detained?

8I find the motor vehicle was not stolen at the time it was detained.

9The burden is on the appellant to prove on a balance of probabilities that the vehicle was stolen.

10The word “stolen” is not defined in the Act.

11The 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.”

12The appellant testified that he resides in Niagara Falls, Ontario with the Driver who is his common law spouse. The appellant also testified he is often away for extended periods of time due to the nature of his work, and at the time of the impoundment he was working out of province.

13The appellant further testified that he was aware the Driver was unlicenced but he had no knowledge of the specific issues pertaining to the Driver’s licence, nor was he aware of the suspension. He further testified that he knew the issues were of sufficient concern that he prohibited the Driver from operating any of his vehicles. The appellant’s evidence is that this licence issue had persisted for over ten years.

14The appellant testified he left the keys to his vehicles readily accessible to his Driver together with house keys and various other keys on the same key ring. The appellant testified he trusted the Driver not to drive any of his vehicles and had no cause to believe she may violate his trust. He testified that over the period he and his spouse resided together, he had no reason to believe the Driver had driven any of his vehicles in the past.

15The appellant was clear and consistent in his testimony that the Driver was not authorized to drive any of his vehicles and that she clearly understood the prohibition.

16Further, the Driver sent correspondence to the respondent stating that she was not authorized to drive any of the appellant’s vehicles and the impoundment was entirely her responsibility. She indicated in her correspondence that she was not authorized to drive any of the appellant’s vehicles and did so without the knowledge or permission of the appellant. This written correspondence is hearsay. While section 15(1) of the Statutory Powers Procedure Act allows me to consider hearsay evidence, provided that it is relevant to the subject-matter of the proceeding, I also accept this untested evidence of the Driver as an admission against interest.

17I find the appellant clearly communicated to the Driver that she was not authorized to drive any of his vehicles, and the Driver clearly understood she was not authorized to drive any of the appellant’s vehicles.

18The appellant testified he learned of the impoundment of the subject vehicle and reasons for the impoundment from the constable who issued the notice of impoundment to the Registrar. The appellant learned from the constable the basis for release of the vehicle, and communicated to the constable that the vehicle should be considered stolen since the Driver did not have authorization to operate it.

19The appellant also testified that when he informed the constable he wished to report the impounded vehicle stolen; the constable declined to take the report and cautioned the appellant to fully consider the consequences of filing a stolen vehicle report before doing so. The appellant testified he took no further action.

20The appellant testified under cross examination that he did not believe the Driver intended to deprive him of the use or possession of his vehicle.

21I find that the Driver was an unauthorized user of the vehicle, but I also find that the vehicle was not stolen.

22In Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745, the court held that temporary use of the vehicle without consent meets the test of stolen for the purposes of the Act, if the intention was to deprive the owner of its use temporarily or permanently.

23The appellant’s evidence in this case was that he did not believe the Driver had any intention to deprive him of the use of the vehicle.

24Given the appellant’s evidence that there was no intention on the part of the Driver to deprive him of the use of the vehicle, I find the vehicle was not stolen.

CONCLUSION

25I find the appellant did not meet his burden in proving, on a balance of probabilities, that the vehicle was stolen at the time it was detained in order for it to be impounded pursuant to s. 50.2(3)(a) of the Act.

ORDER

26Pursuant to subsection 50.2(5) of the Act, I confirm the Registrar’s impoundment of the subject vehicle.

Robert Maich

Vice Chair