Licence Appeal Tribunal File Number: 15908/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:

Cassandra Wilson

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Bruce Stanton

APPEARANCES:

For the Appellant: Cassandra Wilson, self-represented

For the Respondent: Leila Pereira, Agent for the Registrar

Heard by Teleconference: May 30, 2024

OVERVIEW

1Cassandra Wilson (the “appellant”) appeals the impoundment of her 2023 Hyundai Tucson, for 45 days under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

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 HTA, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”) that the Registrar release the vehicle.

3The appellant must prove, on a balance of probabilities, that she satisfies at least one of the five grounds set out in s. 50.2(3), for the Tribunal to order the vehicle released. The appellant appeals on the grounds that the vehicle was stolen at the time of the impoundment (s. 50.2(3)(a)) and that the impoundment will result in exceptional hardship (s. 50.2(3)(d)).

ISSUES

4The issues in dispute are:

1. Was the vehicle stolen at the time of the impoundment?
2. Will the impoundment result in exceptional hardship?

RESULT

5I find that the appellant has demonstrated that the vehicle was stolen. Since the appellant need only satisfy one of the five grounds in s. 50.2(3) for the Tribunal to order the vehicle released, I do not need to determine if the impoundment will result in exceptional hardship. The Registrar is ordered to release the vehicle.

ANALYSIS

Stolen

6Under s. 55.1 of the HTA, a police officer is required to impound a motor vehicle if the officer is satisfied that it was being driven by a person whose licence was under suspension because of certain driving related Criminal Code convictions.

7The respondent submitted evidence that at the time of the impoundment the vehicle was being driven by Bradley Skidmore (the “driver”), a friend of the appellant, whose licence was under suspension for a driving-related Criminal Code conviction. Accordingly, the vehicle was impounded for 45 days.

8The appellant testified that at the time of the impoundment she had been in a relationship with the driver for approximately one and a half years. Since early 2023, the driver was however under a court-ordered condition that required him to live with his Aunt. The appellant testified that she was not familiar with the particulars of the court order, but the driver visited at her apartment once per week on average.

9The appellant testified that she knew the driver’s licence was suspended and she told him he was not permitted to drive her vehicle. The appellant testified that on March 25, 2023, the driver took her vehicle without permission and was apprehended by police that day while driving it. The respondent’s evidence shows that he received an Administrative Driver’s Licence Suspension (“ADLS”) however the vehicle was not impounded. The appellant testified that this was the only occasion prior to the impoundment that the driver drove her vehicle.

10The appellant testified that she keeps only one set of keys to her vehicle. A second set is stored in a secure location. She testified that she keeps her keys with her always and typically hides them or sleeps with them at home. The appellant testified that on the day of the impoundment she had probably left the keys in a coat, pants, or scrubs (the appellant works in a hospital or medical clinic) pocket within her apartment. The appellant testified that the driver has keys to the apartment because he is the sole lessee.

11The appellant testified that on the day of the impoundment she had driven home after a late shift at work (to 12:30 a.m.), had something to eat, and went to bed. She was awoken later that morning by a call from police informing her that her vehicle was being impounded. She testified that she did not know how or when the driver came into the apartment and took her keys to vehicle. The appellant submits that the driver took her vehicle without permission and seeks an order from the Tribunal for its release on the grounds that it was stolen.

12The respondent submits that the appellant, knowing the driver’s licence was suspended and having had one occasion (March 25, 2023) when her vehicle could have been impounded, did not take any steps to deter the driver from getting the keys to the vehicle. The respondent submits the appellant has not met her onus to prove the vehicle was stolen and seeks the Tribunal’s confirmation of the impoundment.

13I find the vehicle was stolen because the driver took the appellant’s vehicle without consent over her express instructions that he was prohibited from driving it.

14In motor vehicle impoundment matters involving the “stolen” ground, the Tribunal has deferred to, and I take guidance from, the decision In Marshall v. Ontario (Registrar of Motor Vehicles) [2002] O.J. No. 745 (Div. Ct.) (“Marshall”) in which the Divisional Court states as follows:

In our opinion, a vehicle is “stolen” in this context when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.

15The Marshall decision essentially creates a two-part test that the appellant must prove in order to establish that the vehicle was stolen, for the purposes of s. 50.2(3)(a) of the Act. The first test is whether the vehicle was taken without the owner’s consent, and the second part is whether the driver intended to deprive the owner of the vehicle, even temporarily.

16I find the appellant meets the test in Marshall because knowing the driver’s licence was suspended, she prohibited him from using the vehicle. Against that prohibition, it appears that the driver deliberately removed the only accessible set of keys from the apartment and deprived the appellant of her vehicle.

17I am not persuaded by the respondent’s submission that the appellant took insufficient steps to prevent the driver from accessing keys to vehicle because the Marshall test does not impose that burden on an owner. The owner must only establish that the vehicle was taken without consent and the perpetrator intended to deprive the owner of it. The appellant’s description of the precautions she took to prevent the driver from driving her vehicle nevertheless lends credence to her claim that he was prohibited from driving it and that he drove the vehicle without consent. She always kept one set of keys with her and secured the second set.

18The evidence before me suggests the driver took the vehicle when he knew he was not permitted to, and the evidence establishes that he intended to deprive her of it for at least a temporary period of time. The circumstances meet the test for “stolen” for the purposes of s. 50.2(3)(a).

19I therefore find that the appellant has proven, on a balance of probabilities, that the vehicle was stolen.

Exceptional hardship

20Since I find that the vehicle was stolen, it is not necessary to consider the other ground in s. 50.2(3), exceptional hardship, on which the appellant relies.

CONCLUSION

21I find that the appellant has proven, in relation to s. 50.2(3)(a), that the vehicle was stolen. Since the appellant need only satisfy one of the five grounds in s. 50.2(3) in her appeal, it is not necessary to determine if the impoundment will result in exceptional hardship.

ORDER

22Pursuant to subsection 50.2(5) of the Act, I direct the Registrar to release the impounded vehicle.