Dana Van De Walker v. Registrar of Motor Vehicles, 2024 CanLII 88900

Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 16206/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:

Dana Van De Walker Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

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

Appearances:

For the Appellant: Dana Van De Walker, Self-represented For the Respondent: Sadia Ashraf, Representative

HEARD: September 11, 2024

OVERVIEW

1Dana Van De Walker, the appellant, appeals from the impoundment of her 2015 GMC Yukon, the vehicle, on August 14, 2024 for 45 days. At the time it was impounded, the appellant’s vehicle was stopped by the police and the appellant’s husband, Kirk G. Van De Walker (“husband”), was found to be driving it without a valid driver’s licence.

2The appellant appeals on two grounds: that her vehicle was stolen at the time of impoundment, and that the impoundment will result in exceptional hardship to her because the cost of the impoundment fees will cause financial 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

4I find that the appellant’s 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. As a result, it is unnecessary to consider the appellant’s exceptional hardship ground of appeal.

ANALYSIS

5The 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.

6An 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.

7Section 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

8I find the appellant’s vehicle was 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 done so for the following reasons.

9The appellant testified that she learned from the police after the impoundment that her husband had been driving the vehicle with the keys to her vehicle which she kept at her home in a place known to her husband.

10However, her husband does not currently reside at the appellant’s home and has not done so since the spring of 2024. He is not allowed to be at her residence.

11In addition, her husband gave a written Undertaking to the police in connection with his court appearance in April, 2024 in respect of a criminal charge involving the appellant’s property (“no contact Undertaking”) that he would not go to her home or communicate with her.

12Because of the no contact Undertaking, the appellant said she changed the electronic code to the front door so that her husband would not know the code but did not feel she had to have all the locks on the house changed because he was not allowed to be at the property.

13The appellant testified that she was staying with her mother for two days in another municipality at the time her husband took the vehicle. The appellant learned of the impoundment of her vehicle from the police who asked her if she would charge her husband with stealing the vehicle but she declined to do so as she did not want to “complicate” matters for him as he had been incarcerated.

14The appellant testified that she later came to learn that her husband took her vehicle a day or so after he took their son Ethan’s vehicle and her son’s vehicle was also impounded by the police.

15Although the appellant testified that she does not think that her husband intended to deprive her of the use of the vehicle, either temporarily or permanently, she also said that she does not know why he took the vehicle. In any event, the actions of her husband did in fact deprive her of the use of the vehicle, at least temporarily.

16I find the appellant’s testimony to be credible. Her evidence about the no contact Undertaking is corroborated by the written no contact Undertaking which she filed.

17The 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.

18The 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.

19Within 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).

20Here, I am satisfied that the appellant’s husband intended to deprive the appellant of the use of the vehicle either temporarily or permanently.

21Her husband was not allowed to be at the appellant’s home pursuant to the no contact Undertaking and he knowingly violated the no contact Undertaking in taking the keys to the vehicle from the appellant’s home and driving it without her knowledge or permission.

22Taken in totality, the evidence presented at the hearing satisfies me that the vehicle was stolen on the day it was impounded within the meaning of s. 50.2(3)(a) of the HTA. The appellant has proven 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

23I have found that the appellant’s evidence supports a finding 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. Given this finding, there is no need to consider the appellant’s second ground of appeal.

Conclusion

24The appellant has 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. As a result, it is unnecessary to consider the appellant’s exceptional hardship ground of appeal.

ORDER

25Pursuant to subsection 50.2(5) of the HTA, I order the Registrar to release the appellant’s impounded vehicle.