Licence Appeal Tribunal File Number: 15788/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 pursuant to Section 55.1 of the Act.
Between:
Tesla Motors Canada ULC
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR:
Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant:
Cody Funston, Senior Security Loss Prevention Specialist, Tesla Motors Canada
For the Respondent:
Sadia Ashraf, Agent
Heard:
May 8, 2024
OVERVIEW
1The appellant, Tesla Motors Canada ULC, appeals the 45-day impoundment of their 2024 Model Y vehicle under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act").
2The appellant's vehicle was reported stolen to the police on the basis that the driver who took the vehicle was not authorized by the appellant to operate or possess the vehicle. Mr. Cody Funston, Senior Security Loss Prevention Specialist, represented the appellant at the hearing. It is his role to recover stolen vehicles and manage assets to prevent loss to Tesla. The dealership reached out to Mr. Funston's department for assistance in relation to an investigation by Waterloo Regional Police Service ("WRPS") after WRPS made the dealership aware that the vehicle had been impounded.
3Subsection 55.1(1) of the Act allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the driver's licence of the person who is driving a vehicle is under suspension at the time for certain Criminal Code offences. In this case, the vehicle was being driven by an individual whose licence was under suspension for a prescribed offence.
ISSUE
4The appellant appeals the impoundment pursuant to s. 50.2(3)(a) on the grounds that the motor vehicle was stolen at the time it was detained in order to be impounded.
5The onus of proving this ground of appeal rests with the appellant. To succeed in its appeal, the appellant must establish this ground on a balance of probabilities.
RESULT
6Having considered the parties' evidence and submissions, I find that the appellant demonstrated on a balance of probabilities that the vehicle was stolen at the time it was detained in order to be impounded.
ANALYSIS
Was the vehicle stolen at the time of the impound?
7The Divisional Court in Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745 (Div. Ct.) ("Marshall") held that a vehicle is "stolen" under the Act when it is taken without the owner's consent and when the perpetrator intends to deprive the owner of it, either permanently or temporarily.
8It is undisputed between the parties that the appellant is the owner of the impounded vehicle and that it was being driven by M.F. whose driver's licence was suspended as a result of a conviction for a prescribed Criminal Code offence at the time it was detained to be impounded.
9The appellant testified that there is video surveillance that shows the vehicle leaving the dealership area. They have been working with police and cooperating with the investigation. They were able to confirm that the driver has no connection to Tesla and is not a customer or employee. One of the possibilities is that the theft was carefully planned with multiple people involved. The fact that the keys were left in the vehicle the night it was stolen raises suspicions on whether there was some conspiracy which made the vehicle easily available for removal from the lot.
10The appellant states that the investigation is ongoing but remain adamant that the vehicle was clearly taken from their premises by an individual who did not have their permission to drive and that it was stolen.
11The respondent holds the position that they have not received anything that would confirm that the vehicle was in fact stolen. They are also not convinced that the appellant took the necessary measures to ensure that the vehicle could not be stolen.
12My task is to determine if the appellant has proven on a balance of probabilities that the vehicle was stolen. To that end, I received evidence that referred to video footage that shows the vehicle leaving the premises at 12:05 a.m. (PST). The vehicle was subsequently retrieved by police after M.F. was found operating it at high speeds moving away from the Tesla facility while he was intoxicated.
13It is noted that the appellant did not notice the vehicle to be missing from their lot until March 31, 2024. They explain this delay due to the fact that it is not uncommon for them to have a very large number of vehicles onsite and keeping track visually can be difficult. After their discovery, the appellant conducted a thorough search of their records but were not able to confirm the identity of the driver who took the vehicle.
14In the end, I find this to be a simple case in which the appellant has satisfied me that the vehicle was taken from their lot by someone who did not have permission or authority to drive the vehicle. They provided reliable and plausible testimony to support their case. The respondent did not provide any substantial testimony that could dispute the fact that the vehicle was stolen at the time of the impound.
15I am satisfied that there was never consent for M.F. to take the vehicle and that he did so at a time when the appellant was not open for business. He was also in an inebriated state and was charged accordingly.
16I further note that the appellant was not advised of the impoundment until several weeks afterwards. I accept the appellant's testimony that they were not aware immediately that a vehicle had been taken from their lot given the volume of vehicles they manage. I am also satisfied that the appellant takes the necessary steps to track their customers and clients who test drive their vehicles. M.F. was not a customer and had every intention of depriving the appellant of their vehicle, had he been successful in evading police.
17I find that the appellant has successfully proven on a balance of probabilities that the vehicle was stolen at the time of its detention.
ORDER
18For the reasons set out above, pursuant to the Tribunal's authority under s.50.2(5) of the Act, I order the Registrar to release the vehicle.
LICENCE APPEAL TRIBUNAL
__________________________
Raymond C. Ramdayal, Member
Released: June 13, 2024