Licence Appeal Tribunal File Number: 15601/MVIA

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

Between:

Jennifer Walker

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Appellant:

Jennifer Walker, Self-Represented

For the Respondent:

Sadia Ashraf, Program Advisor

HEARD: February 23, 2024

OVERVIEW

1Jennifer Walker, the appellant, appeals from the 45-day impoundment of her 2017 Dodge Ram Truck 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 December 26, 2023. At the time of the impoundment, the appellant’s son was driving the vehicle while his licence was under suspension resulting from a prescribed criminal conviction.

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.

3A vehicle owner may only appeal a vehicle impoundment on one or more of the five grounds provided in subsection 50.2(3). The appellant relies on sections 50.2(3) (a) and (d) and submits that the vehicle was stolen at the time of the impoundment and that the impoundment of the vehicle will result in exceptional hardship.

ISSUES

4The issues in dispute are:

i. Whether the vehicle was stolen at the time of the impoundment under section 50.2(3)(a) of the Act.

ii. Will the impoundment of the appellant’s vehicle result in exceptional hardship under section 50.2(3)(d) of the Act?

RESULT

5I 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 consider whether the impoundment will result in exceptional hardship.

ANALYSIS

The 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 respondent presented unrefuted evidence that the appellant’s son’s licence was suspended for a prescribed Criminal Code offence pursuant to s. 55.1(1) of the Act at the time of the impoundment. Accordingly, the vehicle was lawfully impounded.

8The word “stolen” is not defined in the Act.

9The 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.

10The appellant testified that on the date of the impoundment, her son stole her vehicle while she was sleeping because she had been sick with the flu. She submits that when she woke up, her son informed her that the vehicle had been impounded. The appellant called the police to report that her vehicle had been stolen and her son reported to the officer that he had taken the vehicle without permission. Despite this, the police advised that this would not impact the impoundment of the vehicle and no charges were laid. The appellant acknowledged that she was aware that her son’s licence was under suspension and that she had had conversations with him prior to the impoundment that he was not to drive her vehicle. She submits that she kept her car keys on the nightstand in her bedroom and she had no reason to suspect that he would take her vehicle because he had never taken her vehicle before.

11The respondent takes the position that the appellant has not proven that the vehicle was stolen because no charges were laid against her son. Further, even though the appellant was aware of her son’s driving history, no preventative measures were taken to ensure that the keys to the vehicle were in a locked and secure space. The respondent submits that the appellant could have taken additional steps to prevent the vehicle from being taken.

12I find the appellant’s testimony to be credible and forthright, and I accept it. I find that the vehicle was stolen on the date of the impoundment because it was taken without the appellant’s permission. 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.” In this case, the appellant’s son did not have permission to drive the vehicle. He took the vehicle while his mother was ill and asleep and she was not awake to stop him.

13Further, I disagree with the respondent that the unsecured storage of the car keys equates to the appellant’s consent for her son to drive the vehicle. I accept the appellant’s testimony that she had had discussions with her son not to drive any vehicle. Although the appellant was partially aware of her son’s driving history, I believe the appellant that she had no reason to believe that her son would take the vehicle and nor could she have predicted that her son would steal her vehicle while she was ill and asleep. Her belief is reasonably supported by her son never having taken her car in the past. Finally, I accept the appellant’s testimony that she reported the vehicle stolen to police but, for whatever reason, the police decided not to lay charges. It is understandable that a parent would not pressure or insist that police lay charges against their own child because of the potential consequences of those charges. I do not find the lack of a criminal charge against the appellant’s son to undermine the “stolen” ground of appeal in this hearing.

14Given all of the above, I find on a balance of probabilities that the driver took the appellant’s vehicle without consent or permission with the intent of depriving the appellant of it on a temporary basis. In the context of this case, this taking amounts to the driver having stolen the vehicle. I find this consistent with the definition of stolen highlighted by the court in Marshall. The vehicle should therefore be released.

Conclusion

15The appellant has established that the vehicle was stolen on the date of the impoundment.

ORDER

16On the basis of the evidence and submissions presented at the hearing, and pursuant to subsection 50.2(5) of the Act, I order the respondent to release the appellant’s motor vehicle.