Michelle A Lloyd v. Registrar of Motor Vehicles, 2024 CanLII 77418

Licence Appeal Tribunal File Number: 16101/MVIA

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

Between:

Michelle A Lloyd

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Rebecca Hines

APPEARANCES:

For the Appellant: Michelle A Lloyd, Self-Represented

For the Respondent: Sadia Ashraf, Representative

Heard by Teleconference: August 6, 2024

OVERVIEW

1Michelle A. Lloyd, the appellant, appeals from the 45-day impoundment of her 2018 Mazda 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 July 12, 2024. At the time of the impoundment, the appellant's partner 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 prior to the impoundment she was living with her partner on a temporary basis because she was unemployed and was looking for employment in the Picton area. She submits that on the date of the impoundment, her partner stole the vehicle in the middle of the night while she was asleep. A friend woke her up in the early morning to advise her that her vehicle had been impounded. The appellant testified that she was not aware that her partner's licence was under suspension. However, she does not allow anyone to drive her vehicle because she worked so hard to obtain it and 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.

9The appellant acknowledged that her partner had taken her vehicle without her permission a week prior to the impoundment. When she realized her car was not in the parking lot, she called him and asked him to return it immediately which he did. Following this incident, she hid her car keys in her purse in a secure place in their bedroom so that they were not accessible. She submits that he had previously never gone through her purse or personal items before so she had no reason to suspect that he would on the date of the impoundment. Their relationship has since broken up and she had to move back in with her parents.

10The respondent takes the position that the appellant has not proven that the vehicle was stolen because no charges were laid against the driver. The respondent also argues that despite the appellant being aware that her partner had previously taken the vehicle without her permission, 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 the appellant conceded that she did not believe that her partner meant to take her vehicle with the intention of depriving the appellant's use of it.

11I find the appellant's testimony to be credible 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 appellant's then partner took the vehicle in the middle of the night while the appellant was asleep because he did not have permission to drive the vehicle, and nobody was there to stop him. This is supported by the notice of impoundment which confirmed that the vehicle was detained at 4:00 a.m. In this case, I find 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.

12The 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. I also believe the appellant that she had conversations with her partner before the impoundment that he was not to drive her vehicle. I am not persuaded by the respondent's submissions that the vehicle was not stolen because no charges were laid. I find there are many reasons why a vehicle owner might not wish to press charges against a family member or friend, even one who had stolen their vehicle. Moreover, the test in Marshall does not require that the owner press charges for the theft under the Criminal Code. In this case, the appellant was dependent on her partner to a certain degree because she was living with him at his residence. As a result, I find that it is understandable that she would not insist that police press charges against him.

13Given 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

14The appellant has established that the vehicle was stolen on the date of the impoundment.

ORDER

15On 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.