Gregory Underhill Farms Limited v. Registrar of Motor Vehicles, 2024 CanLII 112997

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:

Gregory Underhill Farms Limited

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Jan Dymond, Vice-Chair

APPEARANCES:

For the Appellant: Gregory Underhill, Self-Represented

For the Respondent: Sadia Ashraf, Agent

Heard by teleconference: November 7, 2024

OVERVIEW

1Gregory Underhill on behalf of Gregory Underhill Farms Limited (the "appellant") appeals the 45-day impoundment of the appellant company's 2015 Dodge RAM under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the "Act"). The vehicle was impounded on October 26, 2024. At the time of the impoundment, Braydon Gregory Underhill ("the driver") was driving the vehicle while his licence was under suspension resulting from a prescribed criminal conviction.

2The appellant appeals on the grounds that the vehicle was stolen at the time the vehicle was detained for impoundment and that the impoundment of the vehicle will result in exceptional hardship.

ISSUES TO BE DETERMINED

3Section 50.2 of the Act provides that the owner of an impounded vehicle may appeal the impoundment to the Tribunal. That section limits the grounds upon which the Tribunal can order the release of the vehicle. The appellant's appeal is based on whether the vehicle was stolen under s.50.2(3)(a) of the Act and whether the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the Act.

RESULT

4I find the vehicle was stolen, and therefore, pursuant to section 50.2(5), I order the respondent to release the vehicle. Since I have determined that the vehicle was stolen, I need not address whether the impoundment will result in exceptional hardship.

ANALYSIS

5The appellant's vehicle was stolen at the time of the impoundment.

6The 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.

7The word "stolen" is not defined in the Act.

8The Divisional Court, in the case of Marshall v. Ontario Registrar of Motor Vehicles, [2002] O.J. No. 745 ("Marshall"), 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.

9The appellant submits that the driver did not have the appellant's consent to drive the vehicle and that the driver was aware that he did not have permission to drive any of the vehicles owned by the appellant. The appellant confirmed that he was aware of the driver's licence suspension and had been aware of it from the time the suspension occurred. He stated that he previously had told the driver that he was prohibited from driving the impounded vehicle or any vehicle. He submits that the prohibition is regularly reinforced by the fact that the impounded vehicle is used daily for farm work and that, when the appellant and the driver are in the vehicle together, only the appellant drives the vehicle.

10The appellant submits that impounded vehicle is a used exclusively for farm support purposes. It is a heavy-duty service truck equipped to deliver 300 gallons of fuel and hydraulic oil to four tractors and a combine and fitted with a custom tool cab for equipment repairs, compressors, and welding equipment.

11The appellant submits that, on the day of the impoundment, he and the driver loaded the vehicle at the farm's home base and the appellant then drove the vehicle to the field that was being worked. He testifies that the vehicle is stationed at the farm area being worked and is used by himself and his employees throughout the day to refuel farm equipment and make any necessary equipment repairs. It makes approximately four round trips to the farm's home base daily to restock its fuel supply. The appellant testifies that, because the vehicle is used by various employees throughout the day and he himself may be working some distance from and out of sight of the vehicle, he leaves the keys in the vehicle. On the day of the incident that led to the impoundment, the appellant expected that the driver was operating another piece of farm equipment in the field and only became aware that he was not when he saw that another employee was operating it.

12He testifies that he only became aware that the driver had taken the vehicle when informed that the driver had been stopped by the police and the vehicle was being impounded.

13The respondent submitted evidence establishing that the driver's licence was suspended at the time the vehicle was detained and impounded, and that the impounded vehicle is licenced as a farm vehicle.

14The respondent takes the position that the vehicle was not stolen because the appellant did not file a police report or contact the police to enquire about filing a report. The respondent further submits that the appellant never had a conversation with the driver about not driving the vehicle; that the appellant left the vehicle keys where they were easily accessible and did not take extra steps to ensure that the driver did not have access to the keys.

15I do not accept the respondent's position that the lack of a police report prevents a finding of the vehicle having been stolen. As highlighted in Marshall, the courts have defined a vehicle as stolen "when it is taken without the owner's consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily."

16I find the appellant's claim that the vehicle was stolen at the time it was detained to be credible because I accept the appellant's testimony that the driver did not have the appellant's consent to drive the vehicle. I also accept that the appellant had previously instructed the driver that he was prohibited from driving the impounded vehicle or any other vehicle other than farm equipment such as a tractor.

17The appellant testifies that he had no knowledge of the driver having previously driven a vehicle without consent and, therefore, no reason to take extra measures to prevent the driver from having access to the keys. He submits that since the incident that led to the impoundment, he has put in place extra measures to prevent the driver from accessing a vehicle. As the vehicle is a working farm vehicle used by various employees, I find the appellant's decision to keep the keys in the vehicle while at the work location to be reasonable. I also find that by removing the vehicle from the farm where it was stationed to provide support to the farm equipment, the driver intended to temporarily deprive the appellant of the vehicle.

18I find that the appellant has established on a balance of probabilities that the vehicle was stolen on the date of the impoundment.

ORDER

19Based on the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the appeal is granted, and the respondent is ordered to release the appellant's motor vehicle.

Jan Dymond

Vice-Chair