Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 15748/MVIA

In the matter of an appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act for driving while suspended.

Between:

Robert Cookson Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

VICE-CHAIR: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Robert Cookson, Self-represented For the Respondent: Leila Pereira, Representative

HEARD: April 8, 2024

OVERVIEW

1Robert Cookson, the appellant, appeals from the impoundment of his 2005 Honda, the vehicle, on March 11, 2024 for 45 days. At the time of impoundment the vehicle was being driven by the appellant’s friend Wayne K.J. Griffiths (the “driver”) whose driver’s licence was suspended.

2The appellant appeals on four grounds: that his vehicle was stolen at the time of impoundment; that the driver’s licence of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension; and that he exercised due diligence in attempting to determine that the driver’s licence of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension. The appellant also appeals on the ground that the impoundment will result in exceptional hardship to him because the appellant needs the vehicle to obtain groceries and provide transportation to his daughter and grandchildren, to attend his personal appointments and because the impoundment fees will cause financial hardship to him.

ISSUES

3The issues in dispute are:

i. Issue 1: Was the appellant’s vehicle stolen at the time it was detained in order to be impounded within the meaning of s. 50.2(3)(a) of the HTA?

ii. Issue 2: Was the driver’s licence of the driver not then under suspension within the meaning of s. 50.2(3)(b) of the HTA?

iii. Issue 3: Did the appellant exercise due diligence in accordance with s. 50.2(3)(c) of the HTA?

iv. Issue 4: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation?

RESULT

4I find that the appellant’s vehicle was not stolen at the time it was detained in order to be impounded. I find that the driver’s licence of the driver at the time it was detained in order to be impounded was under suspension. I find that the appellant did not exercise due diligence. I find that the impoundment will not result in exceptional hardship.

ANALYSIS

5The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

6An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on grounds (a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded, (b) that the driver’s licence of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension, (c) that he exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension, and (d), that the impoundment will result in exceptional hardship.

7Section 55.1(1) provides that where an officer is satisfied that a person driving a motor vehicle on a highway while his or her driver’s licence is under suspension, or in contravention of a condition that prohibits him or her from driving a motor vehicle that is not equipped with an ignition interlock device, shall detain the vehicle and shall impound it under s. 55.1(3).

Issue 1: Was the appellant’s vehicle stolen at the time it was detained in order to be impounded within the meaning of s. 50.2(3)(a) of the HTA?

8I find the appellant’s vehicle was not stolen at the time it was impounded. The burden is on the appellant to establish that his vehicle was stolen on a balance of probabilities and he has not done so.

9The term “stolen” is not defined in the HTA. The Criminal Code definition of “theft” provides some guidance as follows:

322 (1) Everyone commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the things or of his property or interest in it;

(b) to pledge it or deposit it as security;

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

10The Divisional Court held in Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745 (Div. Crt.) that the Tribunal should not limit the meaning of “stolen” only to an intention to take the vehicle permanently. The Court stated that the word “stolen” could also apply to an intention to take the vehicle temporarily.

11Within the meaning of s. 50.2(3)(a) of the HTA, “stolen” does not mean the use of an owner’s vehicle contrary to the owner’s instructions: See Auto Zone & Rentals Inc. v. Registrar of Motor Vehicles, 2016 ONLAT 10149, para. 16 (Exec. Chair).

12The appellant, testified that he parked the vehicle at a parking lot near the appellant’s home and gave the driver permission to stay in the vehicle overnight because it was cold and gave the driver his keys so that the driver could turn on the ignition to keep himself warm with the vehicle’s heater. The appellant said he told the driver he could not drive the vehicle and trusted him to not drive it because he has known the driver for about 40 years.

13When the appellant went the next day to the parking lot where he left the car, the appellant found that his vehicle was gone and he telephoned the police.

14Although the appellant testified that the driver did not have his permission to drive the vehicle, no other testimony from a witness or documentary evidence confirms this and his actions in leaving the driver in the vehicle with the keys indicates that he gave the driver either express or implied consent to drive it.

15Further, the appellant admitted in cross-examination that in the past he has allowed the driver to borrow the vehicle and drive it.

16Still further, the appellant said he was told by the driver that the driver was going to bring the vehicle back to the appellant’s home.

17The appellant stated that he did not ask the police to charge the driver with theft of the vehicle because he did not know he could do so.

18Based on the appellant’s testimony, I am not satisfied that the driver intended to deprive the appellant of the use of his vehicle either temporarily or permanently. The appellant conceded that he has loaned the vehicle to the driver before. The appellant testified that the driver told him he was going to bring it back to the appellant.

19The appellant gave the driver the keys and left him alone in the vehicle before it was impounded. The appellant’s actions amount to an implied consent or at very least, a reasonable expectation that the driver may drive the appellant’s vehicle on March 11, 2024.

20For the above reasons, I find that the appellant’s vehicle was not stolen.

Issue 2: Was the driver’s licence of the driver not then under suspension within the meaning of s. 50.2(3)(b) of the HTA?

21I find that driver’s licence of the driver was suspended within the meaning of s. 50.2(3)(b) of the HTA.

22The Registrar filed records showing that the driver’s licence of the driver was suspended at the time of impoundment and had been since approximately 2002.

23The appellant brought forward no evidence to the contrary.

Issue 3: Did the appellant exercise due diligence in accordance with s. 50.2(3)(c) of the HTA?

24I find that the appellant did not exercise due diligence in accordance with s. 50.2(3)(c) of the HTA in attempting to determine that the driver had a valid drivers licence that would allow him to drive the vehicle prior to leaving him alone with the vehicle and giving him the keys to the vehicle.

25To succeed on this ground of appeal, the appellant must show that he or she took reasonable steps to determine that the driver’s licence of the driver of the motor vehicle at the time it was impounded was not suspended and that it was valid. The circumstances of each case will dictate what steps would amount to due diligence.

26There is no evidence from the appellant that she exercised any due diligence at all.

27The appellant testified that the driver told him he had a valid driver’s licence. However, the appellant did not do anything to check whether the driver had a valid driver’s licence. The appellant did not ask to see the driver’s licence of the driver, and did not make any inquiries of the Ministry as to the status of the driver’s licence of the driver. The appellant admitted in cross-examination that he assumed the driver had a valid driver’s licence.

28I find that the appellant did not exercise due diligence in accordance with s. 50.2(3)(c) of the HTA in attempting to determine that the driver’s licence of the driver was not under suspension at the time of impoundment.

Issue 4: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation?

29I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

30Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

…the 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.

31If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must consider whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

32I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.

33Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

34The appellant testified that during the impoundment period so far, he has been able to obtain groceries and attend to his personal needs and appointments by using the bus and by borrowing his son’s vehicle when it is available.

35The records filed by the Registrar also establish that the appellant owns two other vehicles which have licence plates, specifically a 1984 Chev and a 1979 Chev, as well as an unplated vehicle.

36The appellant also testified that payment of the impoundment fee will be a hardship for him as he is retired.

37I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.

38I find that the appellant has alternatives to the impounded vehicle available during the impoundment period including the bus, transportation provided by borrowing his son’s vehicle when it is available and the use of his two other vehicles, the 1984 Chev and the 1979 Chev.

Conclusion

39The appellant has not established any of his grounds of appeal. The appellant has not established that his vehicle was stolen at the time it was detained in order to be impounded within the meaning of s. 50.2(3)(a) of the HTA.

40The evidence is clear that the driver’s licence of the driver was suspended at the time the vehicle was impounded within the meaning of s. 50.2(3)(b) of the HTA and the appellant has not established otherwise.

41The appellant has not established that he exercised due diligence in attempting to determine that the driver’s licence was not under suspension when the vehicle was detained in order to be impounded, within the meaning of s. 50.2(3)(c) of the HTA.

42I also find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

43Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.