Licence Appeal Tribunal File Number: 15924/MVIA

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

Between:

Suheir Arab

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Appellant:

Suheir Arab, Self-Represented

Fatima Ghrebi, Appellant’s Daughter (Arabic Interpreter)

For the Respondent:

Sadia Asraf, Representative

HEARD: June 3, 2024

OVERVIEW

1Suheir Arab, the appellant, appeals from the 45-day impoundment of her 2011 Volkswagen Routan under 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 May 12, 2024. At the time of the impoundment, the appellant’s son was driving the vehicle while his licence was under suspension resulting from a prescribed criminal conviction.

2The appellant appeals on the grounds that the vehicle was stolen at the time it was impounded and that the impoundment will result in exceptional hardship.

ISSUES

3The issues in dispute are:

i. Whether the vehicle was stolen at the time of the impoundment under section 50.2(3)(a) of the Act?

ii. Will the impoundment of the appellant’s vehicle result in exceptional hardship under section 50.2(3)(d) of the Act?

RESULT

4I find the vehicle was stolen, and therefore, pursuant to section 50.2(5), I order the respondent to release the vehicle. Since I have determined that the vehicle was stolen, I need not address whether the impoundment will result in exceptional hardship.

ANALYSIS

The appellant’s vehicle was stolen at the time of the impoundment.

5The 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.

6The word “stolen” is not defined in the Act.

7The Divisional Court, in the case of Marshall v. Ontario Registrar of Motor Vehicles, [2002] O.J. No. 745 (“Marshall”), 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.

8The appellant testified that on the date of the impoundment, her son stole the vehicle in the middle of the night while she was asleep. When she woke up, her son advised her that the vehicle had been impounded. The appellant acknowledged that she was aware that her son’s licence was suspended and that she has had explicit conversations with him that he was not to drive her vehicle and did not have permission. Despite these conversations he did not listen. The appellant submits that she would usually put her car keys in a secure place in her bedroom so that they were not accessible. However, on the date in question she was feeling unwell because she has serious health issues and wanted the keys to be in a location that was accessible to other family members in the event there was an emergency and she needed to be taken to the hospital. Further, her son had never previously taken the vehicle from her home since his licence has been suspended.

9The respondent takes the position that the appellant has not proven that the vehicle was stolen because no charges were laid against her son. The respondent also argues that despite the appellant being aware that her son’s licence was suspended, she did not take any preventative measures to ensure that the keys to the vehicle were in a locked and secure space. The respondent submits that the appellant could have taken additional steps to prevent the vehicle from being taken. Further, the respondent submits that the appellant’s son did not take the vehicle with the intention of depriving the appellant’s use of it.

10I find the appellant’s testimony to be credible and forthright, and I accept it. I find that the vehicle was stolen on the date of the impoundment because it was taken without the appellant’s permission. As highlighted in Marshall, the courts have defined a vehicle as stolen “when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.” I find that the son took the vehicle under the cover of darkness while the appellant was asleep because he did not have permission to drive the vehicle, and nobody was there to stop him. In this case, the driver took the vehicle without the appellant’s permission to use it on a temporary basis. I find this consistent with the definition of stolen highlighted by the court in Marshall.

11The respondent argues that because the appellant did not press charges and the keys were not locked up, they were accessible to the driver. However, I find that the availability of the keys does not equate to consent to drive the vehicle. Further, I believe the appellant that she would usually place her keys in a secure spot but because of her illness the keys needed to be accessible to other family members in the event she needed to be transported to the hospital. Further, she would not have been able to predict that her son would steal her vehicle in the middle of the night. In addition, although the appellant was aware that her son’s licence was suspended, she did not have reason to believe he would take the vehicle because he had never taken the vehicle since his licence has been suspended. I also believe the appellant that she had conversations with her son before the impoundment that he was not to drive her vehicle. Finally, I find that it is understandable that a parent would not insist that police press charges against their own child because of the potential consequences of those charges.

12Given all of the above, I find on a balance of probabilities that the driver took the appellant’s vehicle without consent or permission with the intent of depriving the appellant of it on a temporary basis. In the context of this case, this taking amounts to the driver having stolen the vehicle. The vehicle should therefore be released.

Conclusion

13The appellant has established that the vehicle was stolen on the date of the impoundment.

ORDER

14On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the appeal is granted, and the respondent is ordered to release the appellant’s motor vehicle.