Licence Appeal Tribunal File Number: 16208/MVIA
In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.
Between:
Martyn C. Dolson
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR: Rupinder Hans
APPEARANCES:
For the Appellant: Martyn C. Dolson, Self-Represented
For the Respondent: Leila Pereira, Representative
HEARD: September 23, 2024
OVERVIEW
1Martyn C. Dolson, the appellant, appeals from the 45-day impoundment of his 2010 Ford motor vehicle 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 25, 2024. At the time of the impoundment, Katherine McNeil was driving the vehicle while her driver’s licence was under suspension resulting from a prescribed criminal conviction.
2The appellant’s vehicle is impounded for 45 days until October 9, 2024.
3The appellant appeals on the grounds that the vehicle was stolen at the time it was detained in order to be 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 it was detained in order to be impounded 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. As a result, 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 2010 Ford motor vehicle (the “vehicle”);
ii. on August 25, 2024, the police discovered the impounded vehicle being driven by Katherine McNeil (the “driver”); and
iii. Ms. McNeil’s driver’s licence was under suspension for a Criminal Code conviction at the time the vehicle was detained in order to be 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, on the day of the impoundment, he had not given the driver his consent or permission to take the vehicle. He testified that he has known the driver for about 12 years and they are not close friends. Instead, he sees her every few months.
11On the day of the impoundment, the appellant and his three friends, which includes the driver, had been assisting his sister in setting up for an Easter Seals event. He testified that afterwards they all proceeded to his residence for some breakfast. He shares the residence with his elderly mother. The appellant testified that they arrived at his home around 8 a.m., and made breakfast, and ate along with his mother. After breakfast, they all sat in the living room chatting and he fell asleep on the living room sofa. He testified that he was woken up around 11 a.m. when the driver called him and his phone rang. The driver told him that she had taken the vehicle and been pulled over by the police, and that it may not go well.
12The appellant testified that he was asleep on the living room sofa when the driver took the vehicle without his permission or knowledge. The car keys were on the kitchen counter where he normally leaves them. He had no knowledge that the driver took his keys off the counter and drove the vehicle while he has napping. He testified that she had not asked to borrow or use the vehicle. She had never borrowed or driven the vehicle on any prior occasion. He had never seen her drive. There had been no discussion on her using the vehicle at any time.
13The appellant testified that he did not think that anyone would take his vehicle as he had known his three friends for awhile. He testified that he did not feel the need to lock up the car keys from them.
14The appellant testified that after he received the impoundment documentation, he told the driver that he was filing an appeal alleging that the vehicle was stolen by her as she took it without his permission. He testified that if this meant that he would need to charge her with theft, then so be it, as he needed the vehicle back.
15The appellant did not file a police report alleging theft. However, he testified that he told the police services that the driver had taken the vehicle without his permission, and that he had no idea she had taken the vehicle while he slept.
16The appellant testified that after the impoundment, the driver told him that she took the vehicle so that she could drive to the mall to run an errand for her mother, and that she thought he would not mind. He testified that he would not have allowed her to use the vehicle without making inquires.
17I appreciate that the appellant testifying to the Tribunal about what the driver told him is hearsay evidence. There are inherent dangers to accepting hearsay because they are statements made by another person who did not testify at this hearing, and their evidence cannot be tested by cross-examination. That said, section 15(1) of the Statutory Powers Procedure Act allows this Tribunal may consider all evidence provided that it is relevant to the-subject matter of this proceeding. I accept and admit the hearsay evidence about what the driver told the appellant because it is relevant as to whether the appellant gave his consent to the driver to take the vehicle.
18But this hearsay evidence is not crucial for my decision. I accept the testimonial evidence of the appellant, which is not hearsay.
19I find that the appellant did not give permission to the driver to take the vehicle. I accept his compelling testimony that he fell asleep on the living room sofa, and thereafter, unbeknownst to him the driver took the vehicle while he slept. I accept his testimony that the driver had not sought his permission to take the vehicle and had never driven the vehicle on any prior occasion. I find his testimony credible when he testified that he had no idea that the driver would take his vehicle, and he did not think he needed to lock away the vehicle keys.
20I accept his testimony that he told the police that the driver had taken the vehicle without his knowledge or permission. While the appellant did not ask the police to charge the driver with theft of the vehicle, I do not find that this leads to the conclusion that the appellant gave consent or permission to the driver. To the contrary, the testimony of the appellant was clear that the driver did not have his consent to drive the vehicle.
21In addition, I find the driver intended to deprive the appellant of the use of the vehicle. She took the vehicle keys from the kitchen counter while the appellant slept. She did not seek his permission to use the vehicle and she had never driven the vehicle on any prior occasion. I find her actions demonstrate that she intended to deprive the appellant of the vehicle whether temporarily or permanently.
22I find that the appellant has met his burden.
23Given all of the above, I find, on a balance of probabilities, that the driver took the vehicle without the appellant’s 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.
24The appellant need only prove one of the grounds in s. 50.2(3) of the Act in order for the vehicle to be ordered released. Since I find that the vehicle was stolen, there is no need to consider the ground of exceptional hardship in s. 50.2(3)(d).
Conclusion
25The appellant has established that his vehicle was stolen in accordance with s. 50.2(3)(a) of the Act.
ORDER
26Pursuant to subsection 50.2(5) of the Act, I direct the Registrar to release the impounded vehicle.
Released: October 4, 2024
Rupinder Hans
Adjudicator