Licence Appeal Tribunal File Number 16242/MVIA

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

Between:

Patricia L. Yazbeck

Appellant

and

The Registrar of Motor Vehicles

Respondent

DECISION

VICE-CHAIR:

Jan Dymond

APPEARANCES:

For the Appellant:

Patricia L. Yazbeck, Appellant

For the Respondent:

Leila Pereira, Representative

HEARD: October 15, 2024

OVERVIEW

1Patricia L. Yazbeck (the "appellant") appeals the impoundment of her 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 29, 2024. At the time of the impoundment, the appellant's son James Timmington ("the driver") was driving the vehicle with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.

2The appellant appeals on the grounds that the vehicle was stolen at the time it was detained in order to be impounded; that the appellant exercised due diligence to confirm that the driver had a valid driver's licence, and that the impoundment will cause exceptional hardship.

ISSUES

3The issues in dispute are:

i. whether the vehicle was stolen at the time it was detained in order to be impounded in accordance with section 50.2(3)(a) of the Act; or

ii. whether the owner of the motor vehicle exercised due diligence in attempting to determine that the driver's licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension or subject to the condition described in paragraph 2 of subsection 55.1 (1) under section 50.2(3)(c) of the Act; or

iii. whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

RESULT

4I find the vehicle was stolen, and therefore, pursuant to section 50.2(5), I order the respondent to release the vehicle. Since I have determined that the vehicle was stolen, I need not address whether the appellant exercised due diligence or whether the impoundment will result in exceptional hardship.

ANALYSIS

The appellant's vehicle was stolen at the time of the impoundment.

5The 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.

6The word "stolen" is not defined in the Act.

7The Divisional Court, in the case of Marshall v. Ontario Registrar of Motor Vehicles, [2002] O.J. No. 745 ("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.

8The respondent presents documentary evidence which established that the appellant is the registered owner of the vehicle and that the vehicle had been driven by the driver whose licence was suspended due to a criminal conviction and failure to complete a mandatory driver remedial program.

9The appellant testifies that the driver is her son. Although his permanent residence is listed at another address, he sometime stays with the appellant. The appellant testifies that she was aware prior to the impoundment that his driver's licence was under suspension for an offence that occurred five years previously.

10The appellant testifies that she had instructed the driver on multiple occasions over the years that he was not to drive her vehicle while his licence was under suspension, an understanding that is born out by the fact that she frequently drives her son. She testifies that, when not in use, she regularly changes the location of her car keys – moving them to different purses and different places within each purse and that they are not readily available to the driver. She additionally states that she only has one set of car keys and therefore wants to be sure of where they are at all times.

11The appellant submits that the driver did not have her consent to drive the vehicle on the day of the impoundment; that he had never before taken the vehicle without her consent and that she had no reason to expect that he would do so.

12On the day of the impoundment, the appellant agreed to lend her vehicle to a third party to drive her son to an event. The appellant testifies that she asked the third party if he had a valid driver's licence and he responded in the positive. She acknowledges that she did not ask to see the third party's driver's licence or check its validity. The appellant states that the third party was aware that her son's licence was under suspension and that her son was not to drive the vehicle.

13The driver did not testify at the hearing but provided written testimony stating that, at the time of the impoundment, he was aware that he was not to drive his mother's vehicle and that he had lied to his mother about enlisting the third party to drive the vehicle in order to use the vehicle without her permission.

14I find the appellant's testimony and the driver's witness statement to be credible and accept them.

15The respondent acknowledges that the appellant had told her son not to drive the vehicle but takes the position that the appellant has not proven that the vehicle was stolen because appellant authorized the third party to drive the vehicle. The respondent does not submit any evidence or citations to support its position. I disagree that the vehicle had to be in the possession of the appellant at the time it was taken in order to find it to have been stolen.

16As highlighted in Marshall, the courts have defined a vehicle as stolen "when it is taken without the owner's consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily."

17I find that, on the day of the impoundment, the driver was aware that he was not to drive the vehicle and lied to the appellant for the express purpose of taking the vehicle without her permission. I find the driver took the vehicle without the appellant's permission to use it on a temporary basis. I find this consistent with the definition of stolen highlighted by the Court in Marshall.

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

Conclusion

19The appellant has established that the vehicle was stolen on the date of the impoundment.

ORDER

20On the basis of the evidence presented at the hearing, and pursuant to subsection 50.2(5) of the Act, the appeal is granted, and the respondent is ordered to release the appellant's motor vehicle.