Licence Appeal Tribunal File Number: 15929/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:

Shirley Hendrickson

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Shirley Hendrickson, self-represented

For the Respondent:

Sadia Ashraf, Agent for the Registrar

Heard by Teleconference:

June 14, 2024

OVERVIEW

1Shirley Hendrickson (the “appellant”) appeals the impoundment of her 2022 Ford Bronco 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 Act, 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

6Under s. 55.1 of the Act, 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 Eric Hendrickson (the “driver”), son of the appellant, whose licence was under suspension pursuant to ss. 41 and 43 of the Act. Accordingly, the vehicle was impounded for 45 days.

Stolen

8The appellant testified that when she finished her shift at work her vehicle was not in the employee parking lot where she had left it. She suspected it might have been taken by her son, the driver, because he lives in the same town (Hanover) and frequently asks if he can borrow her vehicle.

9She walked from her workplace to a friend’s house a few blocks away and before getting there received a call from police informing her that indeed her son was apprehended with the vehicle and the vehicle would be impounded.

10The appellant testified that she has only one additional set of keys to the vehicle which she keeps hidden in her home. The appellant locks her home when she is away. She testified that her son does not have keys to the home but when she questioned him after the impoundment, he said that he knew how to get into the house.

11The appellant testified that she does not know how he found the second set of keys and she expects that he searched through the house until he found them. The appellant lives alone and has not shared the location of her second set of keys with anyone. She does not recall the last time she confirmed the second set of keys were in their hidden location.

12Despite the long-standing prohibition on her son’s use of her vehicle, the appellant said that he asks to use it once or twice per month. She has repeatedly told him that he is not allowed to drive her vehicle because it is expensive; she cannot afford to be without it or have it damaged. She denied him the use of the vehicle as recently as one month ago. The last time he drove her vehicle was approximately 20 years ago.

13The appellant testified that she was unaware that her son’s driver’s licence was under suspension. The appellant submits that her vehicle was taken without her consent and against her specific instructions that he was not to drive it. She seeks an order from the Tribunal to release the vehicle on the ground that it was stolen.

14The respondent submits that the vehicle was not stolen because no criminal charges were laid and the appellant testified that the driver’s intention was only to take the vehicle temporarily i.e. he intended to return it. The respondent submits the appellant was unaware the driver’s licence was suspended and the reasons for the prohibition on its use have only to do with the vehicle being expensive.

15The respondent submits the appellant has not met her onus to prove the vehicle was stolen and seeks the Tribunal’s confirmation of the impoundment.

16I 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.

17In 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.

18The 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.

19I find the appellant meets the test in Marshall because the evidence before me suggests the driver took the second set of keys from the appellant’s house without her consent, took the vehicle while she was at work, and intended to deprive her of it for at least a period of time.

20I am not persuaded by the respondent’s submissions that the vehicle was not stolen because no charges were laid. There are many reasons why a vehicle owner might not wish to press charges against a family member, even one who had stolen their vehicle. The test in Marshall does not require that the owner press charges for the theft under the Criminal Code.

21Nor am I swayed by the respondent’s submission that the appellant’s reasons for prohibiting the use of the vehicle were unrelated to the driver’s suspended licence. The test in Marshall does not consider the reasons an owner might have for prohibiting the use of their vehicle. The Marshall test for “stolen” does not require that the perpetrator be expressly prohibited from driving the vehicle but the understanding, if any, an owner might have with a perpetrator regarding the use of their vehicle, helps establish whether the owner denied the driver their consent to drive the vehicle. Instructions prohibiting a person, particularly a family member or co-habitant, from driving an owner’s vehicle inform the context of consent, and provide information about whether consent might have been implied. For example, if an owner occasionally allows someone to drive their vehicle it might be more difficult to for them to prove that on a different occasion, they took the vehicle without consent.

22The appellant’s description of the precautions she took (hiding the second set of keys), and the numerous times she denied the driver the use of her vehicle, lend credence to her claim that he drove the vehicle without her consent.

23On the second part of the Marshall test, it is evident that the driver intended to remove the vehicle from the parking lot. The appellant testified that police notified her of the impoundment within 30 minutes after she left work. The Notice to Registrar shows the vehicle was impounded at 2:20 p.m., around the same time the appellant said she finishes work. The appellant testified that she did not know what time that day he took the vehicle but said that he may have used it to go to Owen Sound, approximately 30 minutes drive away.

24The evidence before me demonstrates that the driver took the vehicle without the owner’s consent, and that he intended to deprive her of it for at least a temporary period of time. In fact, he did deprive her of the vehicle because she was required to walk to her nearest friend’s house in Hanover after work. I find that the circumstances meet the test for “stolen” for the purposes of s. 50.2(3)(a).

25I therefore find that the appellant has proven, on a balance of probabilities, that the vehicle was stolen.

Exceptional hardship

26Since 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

27I 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

28Pursuant to subsection 50.2(5) of the Act, I direct the Registrar to release the impounded vehicle.