Licence Appeal Tribunal File Number: 15994/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:

Lisa M. C. Moreau

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Lisa Moreau, Self-Represented

For the Respondent:

Sadia Ashraf, Agent for the Registrar

Heard by Teleconference:

June 26, 2024

OVERVIEW

1Lisa Moreau (the “appellant”) appeals the impoundment of her 2015 Mitsubishi Lancer 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)).

Dispute on late filed documents – request for adjournment and resumption

4During the introductory portion of the hearing, it became apparent that three documents the appellant attempted to file with the Tribunal on June 14, 2024 were not received. The Tribunal had no record of them, nor did the respondent. They included pharmaceutical records, an employer verification letter and information relating to the appellant’s work schedule.

5The appellant re-sent the documents by email to the Tribunal during the introductory portion of the hearing and they were distributed to the respondent.

6The respondent sought an adjournment of the hearing and a resumption in several days’ time to allow it time to review the appellant’s documents. The respondent submitted that the late filing of the documents prejudices its interests as it had not had time to consider the documents’ consequences on the hearing and properly prepare its response.

7The appellant submitted that every day she goes without her vehicle represents lost employment income. She has only one source of income from work as a courier (which requires her vehicle) which yields $120 per day on average. The appellant submitted she had already exhausted her credit due to the vehicle being impounded since June 10, and had only $100 left to get her through until her vehicle can be released in mid-July. The appellant submitted that not proceeding with the hearing as scheduled would prejudice her by the potential loss of employment income she would suffer between now and the resumption date.

8Rule 16.2 of the Licence Appeal Tribunal Rules 2023 (“Rules”) sets out that oral adjournment requests may only be allowed in compelling circumstances where the party did not or could not have known of the circumstances giving rise to the adjournment request.

9I permitted the oral adjournment request to be made on the day of the hearing because the respondent could not have known of the missing documents until the hearing commenced.

10Rule 16.3 provides the factors to consider in granting an adjournment request. I considered the factors and denied the respondent’s adjournment request. These are my reasons for doing so:

a. There is little to no prejudice to the respondent from proceeding today. The documents in question merely support the Reasons for Appeal the appellant stated in her Notice of Appeal (NoA). For example, that she is employed, her work depends on having a vehicle, and she must attend a pharmacy daily for medication. The respondent received the NoA and would have had time to understand the basis of the appellant’s appeal. The documents support the appellant’s reasons for appeal in the NoA and add specificity, but do not reveal anything that has not already been stated in the NoA;

b. There is potential prejudice to the appellant by not proceeding as scheduled because if the Tribunal orders the vehicle released the delayed hearing will have resulted in missed employment earnings;

c. The reasons for being unable to proceed as scheduled do not have merit because a) the subject documents consist of only three emails representing approximately five pages of content and b) while the documents contain evidence upon which the appellant would seek to rely at the hearing, I was satisfied that the respondent would have a fair opportunity to consider the documents during the course of the hearing; and

d. An adjournment would delay this proceeding. Motor vehicle impoundment matters are already structured to expedite decisions on a timely basis. For example, these hearings forego pre-hearing conferences in favour of considering administrative matters during the introductory portion of the hearing event. Accordingly, delaying these types of proceedings must have sufficient basis. This adjournment request does not, given that I was satisfied that the respondent would be able to adapt as needed to deal with the documents in question.

ISSUES

11The issues in dispute are:

a. Was the vehicle stolen at the time of the impoundment?

b. Will the impoundment result in exceptional hardship?

RESULT

12I 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

13Under 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.

14The respondent submitted evidence that at the time of the impoundment the vehicle was being driven by Marcus Simard (the “driver”), former boyfriend 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.

Was the Vehicle Stolen?

15The appellant testified that the driver visited her the day of the impoundment seeking to stay at her residence. She refused to let him stay and an argument ensued, after which the driver left. The Notice to Registrar notes that the vehicle was apprehended for impoundment at 14:36 (2:36 p.m.). The appellant testified that she first learned her vehicle was impounded the next morning. The appellant stated that she thought the vehicle keys were in her purse but they may have been on the counter. She did not see how he obtained the keys. There is no second set of vehicle keys.

16The appellant testified that her relationship with the driver began in 2019 and over time he became abusive and threatening to her. He was jailed in relation to the abuse in September 2020 and was the subject of a restraining order that remained in place until recently. The driver broke the window of her vehicle in March 2022 in retribution for her not allowing him back to the appellant’s residence.

17The appellant testified that she was aware that the driver’s licence was suspended. She attended when he was in court in 2019 over driving-related charges and was aware that he was required to take a program and several steps to get his licence back. She testified that he did not complete the program. The appellant testified that the driver’s family members prohibit him from driving their vehicles.

18The appellant testified that the driver understands that he is prohibited from driving her vehicle and that he has never driven her vehicle. She stated that he likely took the vehicle to hurt her, as payback for not allowing him to stay at her residence. The appellant submits that the driver took her vehicle without consent and seeks an order to release the vehicle on the ground that it was stolen.

19The respondent submits the appellant has not met her onus to prove the vehicle was stolen because she did not pursue criminal charges in relation to the theft and knowing that her former boyfriend’s licence was suspended, she did not take steps to secure the vehicle keys to prevent him from taking the vehicle.

20The respondent also submits that the appellant did not specifically prohibit the driver from using the vehicle. The appellant did not have a conversation with him about the prohibition. The respondent seeks confirmation of the impoundment.

21I find the vehicle was stolen because the driver took the appellant’s vehicle without consent and intended to deprive her of its use.

22In 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.

23The 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 part of the 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.

24I find the appellant meets the tests in Marshall because the evidence before me demonstrates the driver took the only set of keys from the appellant’s residence, took the vehicle, and deprived her of it from the time he left the residence until it was apprehended later that day. The vehicle was not available to the appellant as she prepared for work the next day. I accept the evidence that the driver acted without the appellant’s consent.

25I am not persuaded by the respondent’s submissions that the vehicle was not stolen because the appellant did not lay charges against the driver. The appellant testified that although she inquired about pressing charges for the theft, she elected not to because she did not want to give the driver any additional reasons to act out against her or hurt her. Given the driver’s history of threatening and violent conduct towards the appellant, it is understandable that she would want to avoid any actions that might attract further vengeful behaviour from him. Moreover, the test in Marshall does not require that the owner press charges for the theft under the Criminal Code.

26Nor am I swayed by the respondent’s submission that the appellant took insufficient steps to prevent the driver from accessing keys to the vehicle. The Marshall test does not impose that burden on an owner. The steps an owner might take, or fail to take, in preventing their vehicle from being used/borrowed serve only to inform the context of consent for these purposes.

27In this case, the driver had not previously defied the understanding they had about use of the appellant’s vehicle. The appellant testified that the driver had never driven her vehicle and that any time they were together she always drove because he had no licence. Since the driver had not defied that understanding in the past, it was reasonable for the appellant to expect that he would not do so in the future, i.e. hiding the keys had not been necessary to that point.

28Any instructions or understanding that prohibits a person, particularly a family member or co-habitant, from driving an owner’s vehicle serve to 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. In this case, I find that consent would not have been implied.

29On the second part of the Marshall test, it is evident that the driver intended to deprive the appellant of her vehicle, at least temporarily. As noted above, the appellant was unaware the driver took her vehicle until the morning following the impoundment.

30The evidence before me demonstrates that the driver took the vehicle without the appellant’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 as it was not available for her work shift the next day. I find that the circumstances meet the test for “stolen” for the purposes of s. 50.2(3)(a).

31I therefore find that the appellant has proven, on a balance of probabilities, that the vehicle was stolen.

Exceptional hardship

32Since 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

33I 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

34Pursuant to subsection 50.2(5) of the Act, I direct the Registrar to release the impounded vehicle.