Brian Davidson v. Registrar of Motor Vehicles, 2024 CanLII 115405

Licence Appeal Tribunal File Number: 16378/MVIA

In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.

Between:

Brian Davidson Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

ADJUDICATOR: Rupinder Hans

APPEARANCES:

For the Appellant: Self-Represented

For the Respondent: Leila Pereira, Representative

HEARD: November 8, 2024

OVERVIEW

1The appellant, Brian Davidson, appeals the 45-day impoundment of his 2019 Nissan motor vehicle (the “vehicle”) under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The vehicle was impounded on October 14, 2024. At the time the vehicle was detained in order to be impounded, it was being driven by his stepson and co-owner of the vehicle, David Desroches (the “driver”), who was driving while his licence was under suspension resulting from a prescribed Criminal Code conviction.

2The 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 result in exceptional hardship.

ISSUES

3The 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

4I find the appellant has not established that 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, or that the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act. The impoundment of the vehicle is confirmed.

ANALYSIS

5The respondent presented uncontradicted evidence which establishes that:

i. the appellant and the driver are the registered co-owners of the vehicle;

ii. on October 14, 2024, the police discovered the vehicle being driven by the driver; and

iii. the driver’s licence of the driver was under suspension for a prescribed Criminal Code conviction at the time the vehicle was detained in order to be impounded.

Whether the vehicle was stolen at the time it was detained

6The burden is on the appellant to prove on a balance of probabilities that the vehicle was stolen. I am not satisfied the appellant has established, on a balance of probabilities, that the vehicle was stolen at the time it was detained.

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, 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 testified that, on the day of the impoundment, he did not know that the driver was going to drive the vehicle and he had not given him permission or consent to drive the vehicle.

10The appellant acknowledges that the vehicle is registered to both him and the driver. He testified that he could not afford the financing of the vehicle on his own, and thus, the driver assisted in financing the vehicle and the vehicle is registered in both their names. He testified that he is paying the insurance on the vehicle and acknowledges that the insurance policy lists both their names. However, he told the insurance company that the driver would not be utilizing the vehicle as he does not have driving privileges.

11The appellant testified that there are three occupants of his residence: his wife, the driver and himself. He testified that the vehicle is his primary vehicle that he uses to attend work and complete his essential tasks. He testified that he is aware that the driver does not have driving privileges and is in the process of completing the back on track program. He testified that he told the driver about three weeks prior to the impoundment that he could not drive the vehicle until he secured his driving privileges. The appellant asserts the driver made a bad decision by driving the vehicle.

12The appellant testified that, to his knowledge, the driver has not driven the vehicle on any prior occasion.

13The respondent takes the position that the driver is a registered owner of the vehicle and cannot be legally deprived of the vehicle. The appellant and driver are joint owners of the vehicle. I agree with this submission. In my view, the driver is an acknowledged registered owner of the vehicle, and I cannot find that the vehicle was taken without the owner’s consent as he is a co-owner. The appellant’s reliance on this ground is misplaced.

14I find, on a balance of probabilities, that the vehicle was not stolen at the time it was detained.

Whether the impoundment will result in exceptional hardship

15The burden is on the appellant to prove on a balance of probabilities that the impoundment will result in exceptional hardship as it is defined in the Act and regulations. I find the appellant has not met his burden.

16Section 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.

17Subsection 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:

[T]he 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.

18If 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 fail.

19If 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) of the Regulation, 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.

20The Tribunal must first consider whether there is an alternative to the impounded vehicle available.

21In my view, the appellant has failed to prove that there is no alternative to the impounded vehicle available. The appellant testified that there is another vehicle in the home that has been utilized and relied upon since the impoundment. He testified that a Jeep Cherokee motor vehicle is registered in both his and his wife’s name, and that it is primarily used by her. The alternative vehicle has been used to attend medical appointments, obtain groceries and prescriptions for the family. No appointments have been missed.

22The appellant testified that his wife has been driving him and the driver to and from their respective places of employment. However, they are concerned as she has medical issues and diminished vision in the dark, and the appellant testified that driving him to and from work in the early mornings and evenings has been stressful and inconvenient.

23In my view, there is an alternative vehicle, a Jeep Cherokee, available to the appellant and his family that has been used since the impoundment. As such, I find that the appellant has not proven that there are no alternatives to the impounded vehicle available and his appeal under s. 50.2(3)(d) of the Act must fail as a result. I therefore need not make determinations with respect to the remaining components of the exceptional hardship test.

24Although the impoundment may have resulted in inconvenience and financial expense for the appellant, he has failed to prove exceptional hardship under the Act given that there is an alternative vehicle available, and his appeal must fail on this ground.

ORDER

25On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the impoundment of the appellant’s vehicle is confirmed.