Corazon Pacada v. Registrar of Motor Vehicles, 2024 CanLII 92080

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 pursuant to Section 55.1 of that Act

Between:

Corazon Pacada Appellant

-and-

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicators: Jeffery Campbell, Vice-Chair Jan Dymond, Vice Chair

Appearances:

For the Appellant: Corazon Pacada, Appellant For the Respondent: Sadia Ashraf, Agent

Heard by teleconference: September 24, 2024

Overview

1Corazon Pacada (the “appellant”) appeals the 45-day impoundment of her 2013 Hyundai Tucson (the “vehicle”) on August 16, 2024, under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). At the time of the impoundment, the vehicle was being driven by the appellant’s son Jayzon John Pacada (the “driver”) whose licence was suspended due to a criminal conviction.

2The appellant appealed the impoundment to the Tribunal on August 22, 2024.

ISSUE

3The issue to be determined is:

i. Whether the vehicle was stolen at the time it was detained in order to be impounded, under s. 50.2(3)(a) of the Act.

RESULT

5For the reasons set we below, we confirm the impoundment of the vehicle.

EVIDENCE AND ANALYSIS

Issue 1 – The vehicle was not stolen at the time it was detained.

6The respondent presented documentary evidence which established that the appellant is the registered owner of the vehicle, and that the vehicle was stopped while being driven by a person whose licence was suspended due to a Criminal Code conviction for a prescribed offence. We are, therefore, satisfied that the vehicle was validly impounded.

7The appellant testified that she went to bed at approximately 9:30 p.m. on the night of the impoundment. At approximately 10:00 p.m. she noticed that her vehicle was not in the driveway. At approximately 11:30 p.m., she received a call from the driver who told her that the vehicle was impounded.

8The appellant lives with the driver and the driver’s wife. The appellant testified that she has told the driver a number of times since his licence suspension that he is not to drive the subject vehicle. The appellant reported that she allows the driver’s wife to use the vehicle but provides regular instructions to the driver’s wife that she is not to allow her husband to drive the vehicle.

9The appellant testified that she has two sets of keys to the vehicle. She keeps one set of keys to the vehicle in her room (which she had in her possession when she went to bed), and the wife of the driver has the other set. The appellant reported that when not in use, the driver’s wife keeps the keys in the room she shares with the driver.

10On the night of the impoundment, the appellant gave the driver’s wife permission to use her car to buy groceries, accompanied by the driver. She testified that she instructed the driver’s wife that the driver was not to drive the car. At 10:00 p.m. upon finding that her car was not in the driveway and that the driver’s wife was at home, the appellant stated that she inquired about the vehicle. The appellant reported that the driver’s wife said the driver had taken the vehicle and that she (the driver’s wife) thought that the appellant had given the driver permission to do so.

11After the impoundment, the appellant went to the police station to inquire about her vehicle and the impoundment. She was given a number with an extension to call which she later did more than once. However, she did not receive any return calls. Consequently, the appellant was never able to speak with the police concerning the impoundment.

12The appellant did not indicate that she intended to charge the driver with theft and indicated that she does not believe that it was the driver’s intention to deprive her of the vehicle.

13The respondent submitted that the vehicle was not stolen as no criminal charges were laid by the appellant nor did she inquire with the police about potential actions she could take. The respondent further submitted that the appellant left the keys with the driver’s wife; did not take steps to discourage the driver from taking the vehicle, and that she did not believe that the driver intended to deprive her of the vehicle.

14The word “stolen” is not defined in the Act.

15The Divisional Court in Marshall v. Ontario (Registrar of Motor Vehicles) [2002] O.J. No. 745 (Div. Ct.), (“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.

16In impoundment cases, the burden is on the appellant to prove that the vehicle was stolen. The proof must be established on a balance of probabilities.

17In this case, it is the appellant’s testimony that the driver did not have her consent to drive the vehicle, and that she believes it was the driver’s intent to return with the vehicle.

18We find that, although she did not consent to the driver’s use of the vehicle, the appellant did not take sufficient steps to ensure that the driver did not have access to the vehicle. Specifically, the appellant’s decision to give the driver’s wife ongoing access to the keys resulted in easy access for the driver.

19Although it was the appellant’s testimony that her vehicle was taken without consent, she also testified that it was her belief that the driver intended to return with the vehicle (thereby not intending to deprive the appellant of it). This, as well the appellant’s failure to take reasonable precautions to ensure that the driver did not operate the vehicle while his licence was under suspension, leads us to find that the vehicle was not stolen.

CONCLUSION

18Given the above, we find that appellant has failed to establish, on a balance of probabilities, that the vehicle was stolen at the time it was detained in order to be impounded.

WE ORDER AS FOLLOWS:

19For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, we confirm the impoundment order.