Licence Appeal Tribunal File Number: 15213/MVIA

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

Between:

Tanya Mifflin

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Rupinder Hans

APPEARANCES:

For the Appellant: Tanya Mifflin

For the Respondent: Leila Pereira, Representative

HEARD: December 11, 2023

OVERVIEW

1Tanya Mifflin, the appellant, appeals from the 45-day impoundment of her 2015 Mazda CX5 motor vehicle pursuant to 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 5, 2023. At the time of the impoundment, the appellant’s friend, C.S, was driving the vehicle while his licence was under suspension resulting from a prescribed Criminal Code conviction.

2The appellant’s vehicle was impounded for 45 days which expired on September 19, 2023. She filed her appeal on September 7, 2023, which is the 33rd day after the impoundment. This was 18 days past the appeal date deadline. Consequently, the appellant made a motion for an extension of time to file the appeal, which was granted by decision of the Tribunal, dated December 1, 2023.

3The appellant appeals on the grounds that the vehicle was stolen at the time it was impounded and that the impoundment will result in exceptional hardship.

ISSUES

4The 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. Whether the impoundment will result in exceptional hardship, under section 50.2(3)(d) of the Act.

RESULT

5I find the vehicle was stolen, and therefore, pursuant to section 50.2(5), I order the release of the motor vehicle. I do not need to decide the ground of exceptional hardship.

ANALYSIS

6The respondent presented evidence which establishes that:

i. the appellant is the registered owner of the impounded vehicle, a 2015 Mazda CX5 (the “vehicle”);

ii. on August 5, 2023, the police discovered the impounded vehicle being driven by C.S. (the “driver”); and

iii. C.S’s licence was under suspension for a Criminal Code conviction at the time it was impounded.

Whether the vehicle was stolen at the time of the impoundment

7The burden is on the appellant to prove on a balance of probabilities that the vehicle was stolen. I am satisfied that the appellant has established, on a balance of probabilities, that the vehicle was stolen at the time of the impoundment.

8The word “stolen” is not defined in the Act.

9The Divisional Court, in the case of Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745, 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.

10The appellant testified that she had not given the driver her consent or permission to drive the vehicle.

11The appellant testified that she and her minor daughter were temporarily residing with the driver, her friend. She and her daughter had been residing with the driver about a month and a half before the impoundment occurred. She testified that she was fully aware that he did not have driving privileges. She testified that she and the driver had a conversation about his driver’s licence being suspended when she moved into his residence. She testified that she told him that he cannot drive the vehicle as he did not have a valid driver’s licence.

12The appellant testified that she only has one key for the vehicle that she normally keeps in her purse. She believed that most people do not look into other people’s purses and that the vehicle key was secure in her purse. She did not believe that he would go through her purse and take the vehicle key. She testified that she would normally keep her purse in her bedroom while she slept. On the day of the impoundment, her purse was kept on a chair in her bedroom. She believes that he came into the bedroom while she slept and took the vehicle key. She testified that she did not hear him come into her bedroom and take the key as she was asleep.

13The appellant testified that she found out the vehicle was impounded when a police officer drove the driver back to the residence and he woke her up to tell her what occurred. She testified that he apologized to her for taking the vehicle. She testified that she does not know why he was not charged with theft of the vehicle. She testified that she tried to have him charged with theft and contacted both the local police and the Ontario Provincial Police. At the time of the hearing, the appellant was no longer residing with the driver.

14The appellant testified that she was unaware of the driver’s prior infractions or criminal conviction but was fully aware that he did not have a valid driver’s licence. She testified that she did not foresee that the driver would take the vehicle or that he would enter her bedroom and take her keys out of her purse. Her purse was not kept in the common areas of the residence, but instead, in her bedroom which she believed was a safe location.

15I find the appellant’s testimony to be credible and forthright, and I accept it.

16I find that the appellant did not give consent to the driver to drive the vehicle at the time of the impoundment. I find that the appellant kept the car keys out of the common areas of the home and they were not easily accessible. She kept the keys in her purse which was on a chair in her bedroom. I find her testimony forthright when she testified that she had no idea that the driver would take the vehicle and she did not give him consent. She knew that he did not have driving privileges and told him clearly that he could not drive the vehicle.

17I accept her testimony that she informed the police that the driver took the vehicle without her permission and that he should be charged with theft. I find that she has met her burden.

18Given all of the above, I find, on a balance of probabilities, that the driver took the appellant’s vehicle without her consent or permission with the intent of depriving the appellant of it. In the context of this case, this taking amounts to the driver having stolen the vehicle. The vehicle should therefore be released.

19Having made this determination, there is no need to consider the ground of exceptional hardship.

Conclusion

20The appellant has established that her vehicle was stolen at the time of the impoundment.

ORDER

21On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the appeal is allowed.