Licence Appeal Tribunal File Number: 15696/MVIA

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

Between:

Joseph Koncz

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

Joseph Koncz, Self-Represented

For the Respondent:

Sadia Ashraf, Representative

Heard by Teleconference: March 13, 2024

OVERVIEW

1The appellant, Joseph Koncz, appeals from the 45-day impoundment of his 2009 GMC Sierra 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 21, 2024. At the time the vehicle was detained, the appellant’s friend Isaac Weber was driving it in contravention of a condition, imposed for a prescribed reason, that prohibited him from driving a vehicle that is not equipped with an ignition interlock device.

2The appellant’s vehicle was impounded for 45 days until April 6, 2024.

3The appellant appeals on the grounds that the vehicle was stolen at the time it was detained in order to be impounded.

ISSUES

4The 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.

RESULT

5I 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. The impoundment of the vehicle is confirmed.

ANALYSIS

6The respondent presented uncontradicted evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2009 GMC motor vehicle (the “vehicle”);

ii. on February 21, 2024, the police discovered the impounded vehicle being driven by Isaac Weber (the “driver”); and

iii. the driver was driving the vehicle without an ignition interlock device while subject to a mandatory ignition interlock condition for a prescribed reason at the time the vehicle was detained in order to be impounded.

Whether the vehicle was stolen at the time of the impoundment

7The burden is on the appellant to prove on a balance of probabilities that the vehicle was stolen. I am not satisfied that the appellant has established, on a balance of probabilities, that the vehicle was stolen at the time of the impoundment.

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, 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.

10Under the circumstances, I am not persuaded that the driver took the vehicle without the permission of the appellant, and that he thus stole the vehicle.

11The appellant testified that the driver is one of his friends. He testified that he is aware that the driver has a mandatory ignition interlock condition on his driving privileges, and that as long as he has known him, the driver has had an interlock on his own vehicle.

12The appellant testified that the driver asked if he could borrow the vehicle over the weekend as the driver’s vehicle was being repaired. The driver told him that Nicholas Wawa would be driving them both from Sudbury to Chapleau, about 450 kilometres away, to perform tattoos services. The driver is a tattoo artist with his own tattoo shop and Mr. Wawa is his apprentice. The appellant has known the driver for about three to four years, and Mr. Wawa for about six to eight months. He testified that neither the driver nor Mr. Wawa had previously borrowed the vehicle. Mr. Wawa’s vehicle was also being repaired at the time.

13The appellant further testified that he lent the vehicle to both the driver and Mr. Wawa as they were traveling together. He lent the vehicle with the understanding that only Mr. Wawa would be driving the vehicle. He testified that he told both the driver and Mr. Wawa that the driver should not be driving the vehicle, and that only Mr. Wawa was permitted to drive. He testified that he does not believe that the driver had the intention to deprive him of the vehicle.

14The appellant testified that the driver and Mr. Wawa were supposed to borrow the vehicle for three days but they got back late from Chapleau and did not return the vehicle on the third day. He testified that they did not have his permission to keep the vehicle overnight. On the fourth day, the driver was working out and sustained an ankle injury. He drove himself to the hospital in the vehicle and while he was attempting to park, the vehicle hit a parking meter in the hospital parking lot. The police attended and detained the vehicle for impoundment.

15The appellant acknowledged that Uber, taxis, and emergency services were available to the driver to transport the driver to the hospital.

16The appellant testified that he is unsure where Mr. Wawa was when the driver took the vehicle. He testified that he did not tell Mr. Wawa to store the vehicle keys in a secure location so that the driver could not access or obtain them. He testified that he just assumed that Mr. Wawa would be in possession of the vehicle keys the entire time, and did not think he needed to tell him to put the keys in a secure location. He believes that he took all the steps needed to ensure that the driver did not drive the vehicle.

17The appellant testified that when the police services called him to advise that the vehicle was going to be detained in order to be impounded, he told them that the driver should not have been driving. He did not tell the police that the vehicle was stolen.

18The appellant testified that the driver will be assisting with covering the cost of the impoundment.

19In my view, and as acknowledged by the appellant, he lent the vehicle to both the driver and Mr. Wawa. The driver was the person who first approached him to borrow the vehicle. Although, the appellant did tell the driver and Mr. Wawa that the driver was not permitted to drive and that only Mr. Wawa had his permission to drive, he did not tell Mr. Wawa to secure the vehicle keys in any manner. There is also no evidence before the Tribunal with regards to where Mr. Wawa was when the driver took the vehicle keys and whether the keys were secured in any manner. The appellant failed to take reasonable precautions under the circumstances to avoid the incident occurring.

20Also, although the vehicle was kept by the driver and Mr. Wawa one extra day, there was no testimony of any actions that the appellant took to regain his vehicle or seek its whereabouts. He also did not tell the police services that his vehicle was stolen.

21I note that the appellant has the burden of establishing that the vehicle was stolen within the meaning of the Act. Namely, that the driver took the vehicle without his consent and that the driver intended to deprive him of it. He has not met that burden, in the context of having loaned the vehicle to the driver and another friend, having failed to take steps to have the keys secured, and not having led any evidence of seeking his vehicle when it was not returned on time. On a balance of probabilities, I find the evidence presented does not demonstrate that the driver took the vehicle without the appellant’s permission.

22Given all of the above, I find, on a balance of probabilities, that the driver did not take the appellant’s vehicle without his consent or permission with the intent of depriving the appellant of it, and thus the vehicle was not stolen.

Conclusion

23The appellant has not established that his vehicle was stolen in accordance with s. 50.2(3)(a) of the Act.

ORDER

24On 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.