Licence Appeal Tribunal File Number: 15694/MVIA

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

Between:

L.B.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Rupinder Hans

APPEARANCES:

For the Appellant: L.B., Self-Represented

For the Respondent: Leila Pereira, Representative

Heard by Teleconference: March 12, 2024

OVERVIEW

1The appellant, L.B., appeals from the 45-day impoundment of her 2021 Ford motor vehicle pursuant to 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 February 25, 2024. At the time of the impoundment, the appellant's husband L.T. was driving the vehicle while his licence was under suspension due to a prescribed Criminal Code conviction.

2The appellant's vehicle was impounded for 45 days until April 10, 2024.

3On March 5, 2024, the appellant filed a motion seeking a confidentiality order for the protection of the privacy of her and her daughter's personal medical information contained in this appeal file. By decision of the Tribunal, dated March 7, 2024, the motion was granted.

4The 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

5The 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

6I find the vehicle was stolen at the time that it was detained in order to be impounded in accordance with section 50.2(3)(a) of the Act, and therefore, pursuant to section 50.2(5) of the Act, I order the release of the motor vehicle.

7As a result, I do not need to decide the ground of exceptional hardship.

PRELIMINARY ISSUE

8The Registrar objected to the appellant's husband L.T., the driver of the vehicle, testifying at the hearing. The Registrar took the position that it expected a will say statement for the driver's testimony and did not receive one.

9The appellant stated that, on March 5, 2024, she sent email correspondence to the Tribunal and the Registrar advising that she was awaiting confirmation from Officer Easter if he was available to attend the hearing, and that her husband had agreed to be a witness to his role and would be attending the hearing. The Registrar acknowledged receipt of the email. In the Notice of Appeal, dated February 28, 2024, the appellant advised that she was appealing the impoundment of her vehicle based upon the ground that the vehicle was taken without her knowledge or permission, and that impoundment will result in exceptional hardship.

10In making a determination on the issue, I considered Rule 9.5.2 of the Licence Appeal Tribunal Rules, which requires parties to provide a list of witnesses at least 10 days before the hearing, with a brief description of the anticipated testimony of each witness. I also considered that Rule 3.1 provides that the Rules are to be liberally interpreted to facilitate a fair, open and accessible process and allow effective participation by all parties, and to ensure efficient, proportional, and timely resolution of the merits of proceedings, as well as consistency with governing legislation and regulations. Under Rule 3.2, the Tribunal may vary or waive the application of any Rule on its own initiative or on request.

11I found that, in the March 5, 2024 email, the appellant had provided a list of witnesses she might call upon to give evidence at the hearing. I further found that the appellant provided sufficient information as to the anticipated testimony of her husband, specifically, that he would be testifying as to his role in the matter. Given that he was the driver of the vehicle at the time it was detained in order to be impounded, his testimony would entail the circumstances within his knowledge and the role he played.

12I find that the appellant provided the requisite brief description of the anticipated testimony of her husband, and I permitted him to testify in this regard although this information was provided less than 10 days before the hearing.

ANALYSIS

13The respondent presented uncontradicted evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2021 Ford motor vehicle (the "vehicle");

ii. on February 25, 2024, the police discovered the impounded vehicle being driven by L.T. (the "driver"); and

iii. the driver's driving privileges were under suspension as a result of 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 of the impoundment

14The 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.

15The word "stolen" is not defined in the Act.

16The 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.

17The appellant testified she had not given the driver her consent or permission to drive the vehicle, and he had taken the vehicle without her knowledge.

18The appellant testified that she had given birth to her first child on February 1, 2024, and she was continuing to feel pain and related symptoms. She testified that a few weeks after the delivery of her child, on February 25, 2024, between the hours of 9 p.m. and 10 p.m. she received a phone call from the police services advising that her vehicle had been pulled over while her husband, the driver, was driving. She had not known that the driver had taken the vehicle.

19The appellant testified that the driver does not have driving privileges and he is not permitted to drive the vehicle. She testified that they have discussed many times that he is not allowed to drive her vehicle given his licence status. The last time they spoke on this matter was around December 2021 when she changed the car insurance and he was not listed as a secondary driver. She testified that she is always the person that drives when they have to go anywhere and she has not let him drive the vehicle. She testified that he has a lengthy record of not driving properly and she told him that she did not want him driving the vehicle.

20The appellant testified that, at one time, the driver wanted to install an ignition interlock device on the vehicle but she did not give him permission to do so. She testified that she made it clear to him that she did not trust him with the vehicle, and he was not permitted to drive the vehicle. She testified that, on the day the vehicle was detained in order to be impounded, she was tired with the care of their newborn child and herself, and he took advantage, taking the vehicle without her knowledge and permission.

21The appellant testified that, since 2021, she has been hiding her purse in which the vehicle keys are kept because she lost trust in him. She hides her purse in multiple locations in their apartment, including under her bed, under her shirts in her chest drawer, and in the baby's stroller. On the day of the impoundment, she had hidden her purse on the top shelf of her bedroom closet behind a box. She testified that she did not see him open her purse and take the vehicle keys, and had no idea that he had taken the keys. She also did not know that he had left their apartment.

22The driver testified that, on the day of the impoundment, he was putting some laundry away in the bedroom closet when he noticed the appellant's purse strap behind a box. He testified that he wanted some cigarettes and he did not want to burden her so he decided to take the vehicle before she would notice. He testified he was fully aware that she did not know that he was taking the vehicle.

23The driver testified that the appellant had told him on multiple occasions that he was not allowed to drive the vehicle. He testified that he had tried to borrow the vehicle on prior occasions to go to the store and she has always said no. He testified that she had also not given him permission to put an ignition interlock device on the vehicle. He testified that they had not discussed this in awhile, but he knew that he was not allowed to use the vehicle. He testified that he had never driven the vehicle on any prior occasion, and he knew that he was not listed on the car insurance. He testified that he made a bad decision by taking the vehicle as he thought he could get away with it without her noticing.

24The appellant acknowledges that she did not ask the police services to charge the driver with theft of the vehicle as this did not occur to her, and it was not her intent to have him charged.

25I accept the appellant's testimony that she had multiple discussions with the driver advising him that he was not permitted to drive the vehicle. She was aware that his driving privileges were suspended and did not want him driving the vehicle. She kept the vehicle keys in her purse which she routinely hid around the apartment including under the bed, and in the closet, as she did not trust him. She did not leave the keys in the common areas of the apartment, and instead, made a concerted effort to hide her purse. I find the vehicle keys were not easily accessible.

26I find the testimony of the appellant credible when she stated that she had never let the driver use the vehicle.

27I accept the driver's testimony that he did not have permission to drive the vehicle and that he took the vehicle without the appellant's knowledge.

28While the appellant did not ask the police to charge the driver with theft of the vehicle, and he was not charged, I do not find that this leads to the conclusion that the appellant gave her consent or permission to the driver to drive the vehicle. Instead, the testimony of the appellant was clear that the driver did not have her consent or permission to drive the vehicle, and she made efforts to hide the vehicle keys. The driver's testimony similarly confirmed his understanding that he did not have permission to drive the vehicle, and he found the hidden purse, and thought he could take the vehicle without the appellant noticing.

29In addition, I find the driver intended to deprive the appellant of the use of the vehicle. He took the vehicle keys from inside the appellant's purse which was hidden on the top shelf of the bedroom closet behind a box. He took the vehicle unbeknownst to her. I find his actions demonstrate that he intended to deprive the appellant of the vehicle albeit temporarily. I note the driver has never been permitted to use the vehicle in the past.

30I find that the appellant has met her burden.

31Given all of the above, I find, on a balance of probabilities, that the driver took the appellant's vehicle without her consent or permission with the intent of depriving the appellant of it. In the context of this case, this taking amounts to the driver having stolen the vehicle for the purposes of s. 50.2(3)(a). The vehicle should therefore be released.

32The appellant need only prove one of the grounds in s. 50.2(3) of the Act in order for her vehicle to be ordered released. Since I find that the vehicle was stolen, there is no need to consider the ground of exceptional hardship in s. 50.2(3)(d).

Conclusion

33The appellant has established that her vehicle was stolen in accordance with s. 50.2(3)(a) of the Act.

ORDER

34Pursuant to subsection 50.2(5) of the Act, I direct the Registrar to release the impounded vehicle.