Licence Appeal Tribunal File Number: 16104/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:

Laura-ann Lefroy

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

Vice-Chair: Hande Bilhan

APPEARANCES:

For the Appellant: Laura-ann Lefroy, Appellant

For the Respondent: Sadia Ashraf, Program Advisor

Heard by Teleconference: August 6, 2024

OVERVIEW

1Laura-ann Lefroy (the “appellant”) appeals the impoundment of her 2013 Dodge Caravan on July 16, 2024 for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2At the time of the impoundment, her adult son was driving the vehicle while his driving privileges were under suspension resulting from a prescribed Criminal Code conviction.

3The appellant appeals on the grounds that the vehicle was stolen at the time it was detained in order to be impounded, as it was taken without her consent. She also appeals on the grounds that the impoundment will result in exceptional hardship, as she works multiple jobs as a part-time employee and as a sole proprietor and she depends on having a vehicle.

ISSUES

4The issues in dispute are:

1. Was the vehicle stolen at the time it was detained in order to be impounded?
2. Will the impoundment of the appellant’s vehicle result in exceptional hardship under section 50.2(3)(d) of the HTA?

RESULT

5Having considered the parties’ evidence and submissions, I find that the appellant has proven that the vehicle was stolen at the time it was detained.

6I do not need to consider the exceptional hardship appeal as the vehicle was stolen.

7Pursuant to subsection 50.2(5) of the HTA, I order the Registrar to release of the appellant’s vehicle.

ANALYSIS

8The appellant’s vehicle was impounded on July 16th, 2024, pursuant to s. 55.1(1)1 of the HTA, because her son was driving her vehicle while his licence was suspended for a prescribed Criminal Code conviction.

9The intent of the legislation is to promote public safety by preventing unlicensed drivers from operating motor vehicles. The 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, may appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”), allowing the appeal and that the Registrar release the vehicle.

10A vehicle owner may only appeal a vehicle impoundment on one or more of the five grounds provided in subsection 50.2(3). The appellant relies on s.50.2(3)(a) and (d) as noted above.

Vehicle Stolen

11The appellant testified that on the morning her vehicle was impounded, she left her home for work around 4:30 am to work her 5:00 am to 9:00 am shift at the Dollar Tree. She was picked up by her manager and noted that her car was in the driveway of her townhouse when she left. Close to the end of her shift she received a call from her daughter, who lives with her, informing her that her son was apprehended driving her vehicle and that the vehicle was impounded.

12The appellant testified that her son lives with his girlfriend but had stayed at her house the night before the impoundment. He took her vehicle after she went to work without asking or informing her. She stated that it has been a long-standing rule that neither of her children are allowed to use her vehicle as she pays for the vehicle and its insurance and feels that at her age, she is entitled to her own vehicle without sharing it. She also stated that she works multiple jobs in different places and needs access to her vehicle at all times. While her part-time job at the Dollar Tree does not always require a car, her other jobs do. Her work as a cleaning supplier in a rural area outside of Lakefield, Ontario requires her to carry vacuums and other cleaning supplies. Her work as a document shredder requires her to carry large amounts of paper from Port Perry, Ontario. Her caulking business requires transport of ladders and other construction supplies, with a current contract in Ajax, Ontario. I find her testimony convincing and find that it supports why she would not share her vehicle. Her livelihood depends on having access to her vehicle.

13The appellant testified that she employs her son and husband in the caulking contracts and drives them to work as her husband does not drive and she does not lend her car to her son. The son also receives rides for other occasional errands, both from the appellant and from her daughter, who owns her own car.

14The appellant admits to keeping her keys at her mantle but insists everyone knew they were not to use her vehicle. While she could not recall the exact last time she had allowed her son to drive it, she believes it had been at least two years or more.

15The respondent submits that the vehicle was not stolen because no criminal charges were laid, that the driver’s intention was not to deprive the appellant of her vehicle, and that the keys were left available to others.

16The respondent submits the appellant has not met her onus to prove the vehicle was stolen and seeks the Tribunal’s confirmation of the impoundment.

17I find the vehicle was stolen because the driver took the appellant’s vehicle without consent over her express instructions that he was not to use her vehicle.

18In motor vehicle impoundment matters involving the “stolen” ground, the Tribunal has applied, 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.

19The Marshall decision 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 HTA. 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.

20I find the appellant meets the test in Marshall because the evidence before me establishes the driver took the keys from the appellant’s house without her consent, drove the vehicle while she was at work, and intended to deprive her of it for at least a period of time as it would have been unavailable to her while he was using it without her consent.

21I am not persuaded by the respondent’s submissions that the vehicle was not stolen because no charges were laid. The test in Marshall does not require that the owner press charges for the theft under the Criminal Code. It may be relevant that the owner has not done so but need not be determinative. In this case I find that the appellant’s failure to press charges does not show the car was not stolen, because by the time she found out that her car was stolen, the son had already been apprehended by the police and the vehicle had been detained. It is understandable that a mother would not then go and press further charges against her son.

22On the second part of the Marshall test, it is evident that the driver removed the vehicle from his mother’s driveway with the intent of driving it for his benefit while depriving his mother of her own vehicle. The appellant testified while she couldn’t recall the exact time, her daughter notified her of the police call about the impending impoundment some time between 8:30 am and 9:00 am, just before her shift’s end. The Notice to Registrar shows the vehicle was detained at 8:30 am. Had the appellant needed her car for her own use, she would not have had access to it. To intend to deprive the owner of the vehicle does not mean that the driver needs to have known the owner would otherwise have needed to use the vehicle during the time period it was stolen. A vehicle can be stolen overnight when the thief knows it would otherwise be likely to have remained in the driveway. The fact that the vehicle might have been likely to remain parked at home during the appellant's shift does not detract from the fact that her son intended to deprive her of it at least temporarily when he took it without permission.

23I am also not persuaded by the respondent’s submission that the keys were left available to others. Simply leaving keys on a mantle or somewhere visible does not imply consent for others to take them, particularly in the context of explicit instructions to family members against driving the vehicle, as in this case. In a home environment any number of items are available to others and not held under lock and key. While someone routinely allowing the borrowing of certain items might convey implicit consent, someone finding an item and taking it despite the owner’s instructions to the contrary does not imply consent at all.

24For example, if the appellant occasionally allowed the son to drive her vehicle, leaving the keys available to him might have been evidence that he had implied consent to drive the vehicle on the day in question. Or if he had taken the vehicle without her consent previously, the appellant might have had to put more precautions in place to secure her keys. That was not the case here, where the appellant clearly and consistently stated that she does not allow others to use her vehicle and the last time she gave permission for her son to drive her vehicle was years ago. She had simply left her keys in her home as she went to work, secure in the knowledge that her family members were not allowed to drive it.

25The appellant also provided documentary evidence in the form of letters submitted as part of her appeal. The appellant’s son submitted a letter stating that he did indeed take the vehicle without his mother’s consent and expressed remorse. Her manager at the Dollar Tree also confirmed in writing that the appellant was at work when she received the call that her vehicle had been impounded.

26I find the appellant to have been a credible witness at the hearing. She gave her evidence in a forthright manner and the Registrar did not point to any inconsistencies.

27The evidence before me demonstrates that the driver took the vehicle without the owner’s consent, and that he intended to deprive her of it, at least for a temporary period of time. I find that the vehicle was “stolen” for the purposes of s. 50.2(3)(a).

Exceptional hardship

28Since 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

29I find that the appellant has proven that the vehicle was stolen under s. 50.2(3)(a). 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

30Pursuant to subsection 50.2(5) of the HTA, I direct the Registrar to release the impounded vehicle.