Neharika Virk v. Registrar of Motor Vehicles, 2024 CanLII 88870

Licence Appeal Tribunal File Number: 16211/MVIA

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

Between:

Neharika Virk

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

VICE-CHAIRS:

Jan Dymond Jeff Campbell

APPEARANCES:

For the Appellant:

Neharika Virk, Self-Represented

For the Respondent:

Sadia Ashraf, Representative

Heard by Teleconference: September 12, 2024

OVERVIEW

1Neharika Virk, the appellant, appeals from the 45-day impoundment of her 2024 Jeep Cherokee 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 August 17, 2024. At the time of the impoundment, the vehicle was located in the appellant’s driveway. She was advised by the police that her husband, H.V., had driven the vehicle on August 15, 2024 while his licence was under suspension as a result of a prescribed criminal conviction.

2The appellant appeals on the grounds that the vehicle was stolen at the time of the offence that led to its impoundment 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

4We find the vehicle was stolen, and therefore, pursuant to section 50.2(5), we order the respondent to release the vehicle. Since we have determined that the vehicle was stolen, we 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. We are satisfied that the appellant has established, on a balance of probabilities, that the vehicle was stolen at the time it was detained in order to be impounded.

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 respondent presented documentary evidence which established that the appellant is the registered owner of the vehicle and that the vehicle had been driven on August 15, 2024 by H.V. whose licence was suspended due to a prescribed criminal conviction.

9The appellant testified that H.V is her husband, that they live together with their three children, and that she was aware prior to the impoundment that his driver’s licence was under suspension.

10She further testified that she had instructed her husband that he was not to drive her vehicle, or indeed any vehicle, while his licence was under suspension. She testified that, when not in use, she kept her car keys in her purse on a shelf in her own closet, a closet not shared with her husband and into which he would have to enter. She acknowledged that keeping the keys out of reach of her children was part of the reason for keeping the keys in a relatively inaccessible location. A back-up set of keys is with her mother at a different location.

11She submits that on the date of the incident that gave rise to the impoundment, her husband stole the vehicle in the early evening while she was occupied caring for their three young children (ages 5, 2 and 10 months). He returned the vehicle, and she did not notice that her keys had been removed. She testified that she was unaware that he had taken the vehicle until the police arrived at their home to impound the vehicle two days later.

12She submits that he had never before taken the vehicle without her consent, either prior to or subsequent to his licence suspension, and that she had no reason to expect that he would do so. She testified that she was shocked to learn from the police that he had used it.

13The appellant provided a written statement from H.V. in which he states that the appellant "was completely unaware that I had found her keys and took her vehicle behind her back without her consent."

14The respondent accepts that the relevant issue is whether the vehicle was stolen at the time H.V. drove it, but takes the position that the appellant has not proven that the vehicle was stolen because she stored the keys in the same location she had prior to H.V.’s licence suspension. The respondent submits that the appellant could have taken additional steps to prevent the vehicle from being taken.

15We find the appellant’s testimony to be credible and accept it. We find that the vehicle was stolen on the date H.V. drove it, 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." We find that the appellant’s husband took the vehicle when his wife was otherwise occupied with their children because he did not have permission to drive the vehicle and knew that she would not notice its absence. We find the driver took the vehicle without the appellant’s permission to use it on a temporary basis. This is consistent with the definition of stolen highlighted by the court in Marshall.

16The respondent argues that because the keys were not locked up, they were accessible to the driver. However, we find that the availability of the keys does not equate to consent to drive the vehicle. We also believe the appellant’s testimony that she had conversations with her husband before the impoundment that he was not to drive her vehicle, and that she had no reason to expect that he would take it without her consent.

17Given all of the above, we 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

18The appellant has established that the vehicle was stolen.

ORDER

19On 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.