Paul Hammel v. Registrar of Motor Vehicles, 2024 CanLII 79210

Tribunals Ontario

Licence Appeal Tribunal

Licence Appeal Tribunal File Number: 16113/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 under section 55.1 of the Act for driving while suspended.

Between:

Paul Hammel Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

PANEL: Avril A. Farlam, Vice-Chair; Jan Dymond, Vice-Chair

Appearances: For the Appellant: Paul Hammel, Self-represented For the Respondent: Leila Pereira, Representative

HEARD: August 13, 2023

OVERVIEW

1Paul Hammel, the appellant, appeals from the impoundment of his 1985 Pontiac, the vehicle, on July 14, 2024, for 45 days. At the time it was impounded, the appellant’s vehicle was stopped by the police and Douglas Regier (the “driver”) was found to be driving it without a valid driver’s licence.

2The appellant appeals on two grounds: that his vehicle was stolen at the time of impoundment, and that the impoundment will result in exceptional hardship.

ISSUES

3The issues in dispute are:

i. Issue 1: Was the appellant’s vehicle stolen at the time it was detained in order to be impounded within the meaning of s. 50.2(3)(a) of the HTA.

ii. Issue 2: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

RESULT

4We find that the appellant’s vehicle was stolen at the time it was detained in order to be impounded.

5As a result, it is not necessary to consider the appellant’s second ground of appeal, whether the impoundment will result in exceptional hardship.

ANALYSIS

6The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

7An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on grounds (a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded, and (d), that the impoundment will result in exceptional hardship.

8Section 55.1(1) provides that where an officer is satisfied that a person driving a motor vehicle on a highway while his or her driver’s licence is under suspension, or in contravention of a condition that prohibits him or her from driving a motor vehicle that is not equipped with an ignition interlock device, shall detain the vehicle and shall impound it under s. 55.1(3).

Issue 1: Was the appellant’s vehicle stolen at the time it was detained in order to be impounded within the meaning of s. 50.2(3)(a) of the HTA

9We find the appellant’s vehicle was stolen at the time it was impounded. The burden is on the appellant to establish that his vehicle was stolen on a balance of probabilities and he has done so for the following reasons.

10The term “stolen” is not defined in the HTA. The Criminal Code definition of “theft” provides some guidance as follows:

322 (1) Everyone commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the things or of his property or interest in it;

(b) to pledge it or deposit it as security;

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

11The Divisional Court held in Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745 (Div. Crt), that the Tribunal should not limit the meaning of “stolen” only to an intention to take the vehicle permanently. The Court stated that the word “stolen” could also apply to an intention to take the vehicle temporarily.

12Within the meaning of s. 50.2(3)(a) of the HTA, “stolen” does not mean the use of an owner’s vehicle contrary to the owner’s instructions: See Auto Zone & Rentals Inc. v. Registrar of Motor Vehicles, 2016 ONLAT 10149, para. 16 (Exec. Chair).

13We are satisfied that the driver intended to deprive the appellant of the use of the vehicle either temporarily or permanently.

14We accept the appellant’s evidence that his daughter took the vehicle to a detailing business known to the appellant’s daughter to have it cleaned. This was to be a present for the appellant from his daughter and he was unaware of which detailing business she was going to take the vehicle to.

15After the vehicle was impounded by the police on Sunday, July 14, 2024 at 11:30 p.m., outside of business hours, the appellant went to the police station the next business day, discussed the impoundment with them, and learned from the police that charges would be laid against the driver.

16The appellant is co-operating with the police in the laying of charges against the driver. The appellant testified that he has made attempts to speak to the police officer whose name is on the Notice to Registrar filed. The appellant testified that he is willing to give a statement to the police that the vehicle was stolen by the driver but has not yet been able to connect with the police officer involved due to the holiday schedule of the police officer.

17Although the respondent submits that the driver has not been charged with theft and this tends to indicate the vehicle was not stolen, we accept the appellant’s testimony explaining the efforts he has made to date to co-operate with the police in the laying of charges. The appellant has contacted the police, made himself available to provide a statement to the police, and testified that he remains willing to do so that charges can be brought against the driver.

18Although the respondent submits that there were no restrictions placed on the use of the vehicle by the appellant’s daughter when she delivered it to the cleaning business and as a result the vehicle was not stolen, we do not agree with this submission. We accept the appellant’s evidence that the vehicle cleaning business would have no need to require its employee to drive the vehicle after cleaning it based on the appellant’s experience and expertise in business. The appellant is the owner of an auto body business and is familiar with when a vehicle needs to be driven after receiving service. Here we find that the vehicle was being driven outside of business hours on a Sunday for no apparent business purpose.

19Taken in totality, the evidence presented at the hearing satisfies us that the vehicle was more likely than not stolen on the day it was impounded. The appellant has established this ground of appeal.

Issue 2: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation

20We have already found that the appellant’s vehicle was stolen at the time it was detained in order to be impounded. As a result, it is not necessary to consider the appellant’s second ground of appeal, whether the impoundment will result in exceptional hardship.

Conclusion

21The appellant has established that his vehicle was stolen at the time it was detained in order to be impounded within the meaning of s. 50.2(3)(a) of the HTA.

22As a result, it is not necessary to consider the appellant’s second ground of appeal, whether the impoundment will result in exceptional hardship

ORDER

23Pursuant to subsection 50.2(5) of the HTA, we direct the respondent to release the vehicle to the appellant.