Tribunals Ontario
Licence Appeal Tribunal
Licence Appeal Tribunal File Number: 16207/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:
Ethan Van De Walker Appellant
and
Registrar of Motor Vehicles Respondent
DECISION
VICE-CHAIR: Avril A. Farlam, Vice-Chair
Appearances:
For the Appellant: Ethan Van De Walker, Self-represented For the Respondent: Sadia Ashraf, Representative
HEARD: September 11, 2024
OVERVIEW
1Ethan Van De Walker, the appellant, appeals from the impoundment of his 2010 Honda Civic, the vehicle, on August 12, 2024 for 45 days. At the time it was impounded, the appellant’s vehicle was stopped by the police and the appellant’s father, Kirk G. Van De Walker (“father”), 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 to him 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 his vehicle was stolen on a balance of probabilities and he has done so for the following reasons.
9The appellant, a 22-year-old man who lives in Nova Scotia, testified that he learned about the impoundment of his vehicle from his mother Dana Van De Walker after his father had been arrested. He was told that his father was found by the police to have been driving the vehicle on the road. The appellant testified that he also learned that while his father was driving the vehicle on the road, he was in an accident and that the vehicle had suffered significant damage and may be a total loss.
10The appellant testified that when he moved to Nova Scotia in 2022, his partner could not drive and he had no means to bring the vehicle with him. The appellant said that he parked the vehicle at his mother’s home, left the keys at his mother’s home, and cancelled the insurance on the vehicle. The appellant said he asked his father to start the vehicle occasionally in the driveway of his mother’s home so that the battery would not die, but his father was not given permission to drive it on the road and it was not insured. The limited permission he gave his father to start the vehicle on private property for maintenance purposes only because there was no insurance on the vehicle.
11The appellant testified that he did not wish to charge his father with stealing the vehicle, and he did not report it as stolen to the police.
12Although the appellant testified that he does not think that his father intended to deprive him of the use of the vehicle, either temporarily or permanently, the actions of his father did in fact deprive him of the use of the vehicle, temporarily, if not permanently.
13The appellant said that his mother prepared the Notice of Appeal for him to sign but he did not read it. Although the Notice of Appeal indicated that the appellant sold the vehicle to his father, his mother’s understanding was not correct. The appellant’s arrangement with his father was instead that the vehicle was to be parked at her home, and started for maintenance purposes only, on private property so that he could use it or sell it later.
14I find the appellant’s testimony to be credible. His evidence was forthright and consistent.
15The 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.
16The 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.
17Within 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).
18Here, I am satisfied that the appellant’s father intended to deprive the appellant of the use of the vehicle either temporarily or permanently.
19That the appellant did not give his father permission to drive the vehicle on the road is consistent with the appellant cancelling the insurance on the vehicle.
20Taken 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
21I have found that the appellant’s evidence supports a finding 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. Given this finding, there is no need to consider the appellant’s second ground of appeal.
Conclusion
22The 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. As a result, it is unnecessary to consider the appellant’s exceptional hardship ground of appeal.
ORDER
23Pursuant to subsection 50.2(5) of the HTA, I order the Registrar to release the appellant’s impounded vehicle.
LICENCE APPEAL TRIBUNAL
Avril A. Farlam, Vice-Chair
Released: September 16, 2024