Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 16097/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

Between:

Thu Nguyen Luu Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

VICE-CHAIR: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Thu Nguyen Luu, Self-Represented For the Respondent: Leila Pereira, Representative

HEARD: August 9, 2024

OVERVIEW

1Thu Nguyen Luu, the appellant, appeals from the impoundment of her 2007 Nissan, the vehicle, on July 5, 2024 for 45 days. At the time of impoundment, the vehicle was being driven by Stacey Hamerton (the “driver”) whose driver’s licence was suspended.

2This appeal was originally scheduled to be heard July 31, 2024 but the hearing was adjourned because the appellant had received new information as to the process of having her name removed as the vehicle’s owner. The appellant at that time indicated that she may withdraw her appeal should this occur. Both parties advised the Tribunal that this process could take place prior to August 9, 2024. Accordingly, the Tribunal ordered an adjournment of the hearing to August 9, 2024.

3The appellant stated at the beginning of the hearing that she did not know which ground or grounds of appeal she relies on in this appeal.

4As a result, all four possible grounds of appeal have been considered, specifically: that her vehicle was stolen at the time of impoundment; that the driver’s licence of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension; and that she exercised due diligence in attempting to determine that the driver’s licence of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension; that the impoundment will result in exceptional hardship to her because the impoundment fees will cause financial hardship to her.

5The appellant’s position is that she sold the vehicle to the driver June 28, 2024, and is no longer the owner.

6The respondent’s position is that the appellant remains the registered owner of the vehicle, and that she has not established any of the four possible grounds of appeal.

ISSUES

7The 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: Was the driver’s licence of the driver not then under suspension within the meaning of s. 50.2(3)(b) of the HTA?

iii. Issue 3: Did the appellant exercise due diligence in accordance with s. 50.2(3)(c) of the HTA?

iv. Issue 4: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation?

RESULT

8I find that the appellant’s vehicle was not stolen at the time it was detained in order to be impounded. I find that the driver’s licence of the driver at the time it was detained in order to be impounded was under suspension. I find that the appellant did not exercise due diligence. I find that the impoundment will not result in exceptional hardship.

ANALYSIS

9The 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.

10An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant’s appeal is considered on all possible grounds of appeal, specifically, (a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded, (b) that the driver’s licence of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension, (c) that she exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension, and (d), that the impoundment will result in exceptional hardship.

11Section 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?

12I find the appellant’s vehicle was not stolen at the time it was impounded. The burden is on the appellant to establish that her vehicle was stolen on a balance of probabilities and she has not done so.

13The 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.

14The 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.

15Within 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).

16The appellant testified that she sold the vehicle to the driver on June 28, 2024 on the basis of a verbal agreement. In support of this, the appellant filed a photograph of cash taken June 28, 2024, a letter to her insurance broker dated June 29, 2024 cancelling her insurance on the vehicle, and a certified copy of a letter that the Ministry of Transportation (“MTO”) provided to her dated August 1, 2024.

17The appellant testified that she signed the ownership to the vehicle and gave it to the driver on June 28, 2024, following which she and her husband allowed the driver to drive the vehicle to his home so that he could put his own licence plates on the vehicle. The appellant and her husband followed the driver to his home in their vehicle and kept the licence plates from the vehicle. The appellant testified that that she relied on the driver to go to Service Ontario and register the sale.

18The appellant asked that her husband Ivan Kudelka (“husband”) be a witness after both the appellant’s evidence and the respondent’s evidence had been presented at the hearing. Although the respondent objected on the basis that the appellant had confirmed at the beginning of the hearing that she would be the only person testifying for the appellant, I allowed the appellant’s husband to testify.

19The appellant’s husband testified that he was present when the sale of the vehicle occurred and that he talked to the driver about the transfer of ownership of the vehicle. The appellant’s husband suggested to the driver that they should go together to the Ministry to register the sale, but the driver convinced he and the appellant that the driver “would take care of it”. The appellant’s husband testified that he and the appellant trusted the driver and believed that he would do as he said. The appellant’s husband confirmed that they allowed the driver to drive the vehicle to his home to put plates on it, and that they followed behind in their own vehicle.

20The appellant testified that after she was notified that the vehicle had been impounded, she went to Service Ontario and to tell them that she had sold the vehicle. The MTO sent the appellant a letter dated August 1, 2024, a certified copy of which was filed at the hearing which confirms that the appellant visited a Service Ontario centre on July 12, 2024, to apply for a status change of the vehicle to “SOLD” but notes that the vehicle will continue to be registered under the appellant’s name until the new owner completes the transfer process.

21The respondent’s documents filed at the hearing and the testimony of the respondent’s representative confirmed that the vehicle remains registered in the name of the appellant at the time of the hearing.

22It is clear from the testimony of both the appellant and her husband, that the driver had the appellant’s permission to drive the vehicle after the cash was exchanged on June 28, 2024.

23For the above reasons, I find that the appellant’s vehicle was not stolen.

Issue 2: Was the driver’s licence of the driver not then under suspension within the meaning of s. 50.2(3)(b) of the HTA?

24I find that driver’s licence of the driver was suspended within the meaning of s. 50.2(3)(b) of the HTA.

25The respondent filed records showing that the driver’s licence of the driver was suspended at the time of impoundment.

26The appellant brought forward no evidence to the contrary.

Issue 3: Did the appellant exercise due diligence in accordance with s. 50.2(3)(c) of the HTA?

27I find that the appellant did not exercise due diligence in accordance with s. 50.2(3)(c) of the HTA in attempting to determine that the driver had a valid driver’s licence that would allow him to drive the vehicle prior to giving him possession of the vehicle.

28To succeed on this ground of appeal, the appellant must show that he or she took reasonable steps to determine that the driver’s licence of the driver of the motor vehicle at the time it was impounded was not suspended and that it was valid. The circumstances of each case will dictate what steps would amount to due diligence.

29There is no evidence from the appellant that she exercised any due diligence at all.

30The appellant’s husband testified that he did not ask the driver if he had a valid driver’s licence before allowing him to drive the vehicle to his home and giving him possession of the vehicle.

31I find that the appellant did not exercise due diligence in accordance with s. 50.2(3)(c) of the HTA in attempting to determine that the driver’s licence of the driver was not under suspension at the time of impoundment.

Issue 4: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation?

32I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

33Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

…the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.

34If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must consider whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

35I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.

36Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

37The appellant testified that she has been able to obtain to get to work, and attend to her personal needs and appointments by using the other vehicle she owns.

38The records filed by the Registrar also establish that the appellant owns another vehicle in addition to the impounded vehicle, specifically a 2017 Acura.

39The appellant also testified that payment of the impoundment fee will be a hardship for her.

40I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.

41I find that the appellant has alternatives to the impounded vehicle available during the impoundment period, specifically her second vehicle, the 2017 Acura.

Appellant’s June 28, 2024 transaction with the driver

42Although the appellant and her husband appear to have believed that the vehicle had been sold on June 28, 2024 when the appellant accepted cash from the driver, allowed him to drive the vehicle, and gave possession of the vehicle to the driver, it is clear from the documents filed by the respondent and the MTO letter filed by the appellant, that the ownership registration of the vehicle remains in the appellant’s name.

43The appellant’s cancellation of her insurance on the vehicle, signing the vehicle ownership card and giving it to the driver were not effective steps to transfer title to the vehicle to the driver under the MTO’s ownership registration regime. As a result, the appellant continues to remain the registered owner.

44Although the appellant testified that she didn’t know this had to be done, the appellant’s husband suggested to the driver that they go to the Ministry together to complete the transfer, tending to indicate knowledge that this had to be done. However, even if the appellant was unaware of how to transfer the registered title to the vehicle, ignorance of this law is no excuse.

45Further, the appellant has still not changed the registered ownership of the vehicle, despite having being granted an adjournment of the hearing to do so by this Tribunal.

46Still further, the appellant has exercised the right of an owner granted by the HTA to appeal the impoundment by the vehicle which tends to indicate that the appellant recognizes that she is still the registered owner of the vehicle, or at the very least, is inconsistent with the appellant’s position that she is no longer the owner of the vehicle.

Conclusion

47The appellant has not established any of her grounds of appeal. The appellant has not established that her 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.

48The evidence is clear that the driver’s licence of the driver was suspended at the time the vehicle was impounded within the meaning of s. 50.2(3)(b) of the HTA and the appellant has not established otherwise.

49The appellant has not established that she exercised due diligence in attempting to determine that the driver’s licence was not under suspension when the vehicle was detained in order to be impounded, within the meaning of s. 50.2(3)(c) of the HTA.

50I also find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

51Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.