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 the Act.

Between:

Elaine M. Eames

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR:

Jan Dymond, Vice Chair

APPEARANCES:

For the Appellant:

Elaine M. Eames, Self-Represented

For the Respondent:

Leila Pereira, Representative

Heard by Teleconference: March 13, 2025

OVERVIEW

1Elaine M. Eames, the appellant, appeals the 45-day impoundment of her 2021 Toyota 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 February 21, 2025. At the time of the impoundment, the appellant's son, Richard S.D. Eames ("the driver"), was driving the vehicle while his licence was under suspension resulting from a prescribed criminal conviction.

2The 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.

3The Registrar submitted documents confirming that the driver's licence of the driver of the motor vehicle at the time it was detained in order to be impounded was under suspension. Accordingly, I find that the vehicle was lawfully impounded pursuant to s. 55.1(1) of the Act.

ISSUES TO BE DETERMINED

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. Will the impoundment of the appellant's vehicle 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 respondent to release the vehicle. Since I have determined that the vehicle was stolen, I need not address whether the impoundment will result in exceptional hardship.

ANALYSIS

6The owner of a vehicle which has been impounded under s. 55.1 of the Act may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

7An owner may appeal only on the grounds set out in s. 50.2(3) of the Act. The appellant appeals under s. 50.2(3)(a) on 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 under s.50.2(3)(d) of the Act and relevant regulation.

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

8The 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.

9The word "stolen" is not defined in the Act.

10The 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.

11The appellant testifies that she was aware that the driver does not have a driver's licence and that she had instructed him not to use the vehicle on multiple occasions. She also testifies that she has taken steps to ensure that he could not access the vehicle. She states that she has two sets of fobs for her vehicle, one set that she keeps with her at all times and a spare fob that she had hidden in a cup on the top shelf of a kitchen cupboard to prevent her son from taking the vehicle.

12She testifies that on the day that the vehicle was detained in order to be impounded, she was visiting her next-door neighbour and that the main key fob for the vehicle was with her in her purse. She states that, when she returned home, she found that the driver had located the hidden key and taken her vehicle without her consent. She testifies that she immediately called 911 to report that the driver had taken the vehicle without her consent and that the driver was driving without a valid driver's licence or insurance. She testifies that the police located the vehicle, apprehended the driver and impounded her vehicle. The appellant testifies that she was advised by the police that charges were being laid against the driver but that they could not reveal the specific charges. The appellant states that she did not ask the police to charge the driver with theft of her vehicle.

13The appellant reports that the driver had taken the vehicle on one previous occasion approximately four months ago. She states that on that occasion, the driver stole her purse that contained the key fob from behind a sofa where she had hidden it and took the vehicle while the appellant was sleeping. She testifies that she called the police but that the driver returned the vehicle prior to the police attending. The police advised her that, because there was no proof that the driver had driven, no charges would be laid. She testifies that at no time did she have an indication that the driver had located the hidden fob and, therefore, no reason to consider moving it. She testifies that immediately following this event, she told the driver that he was not to drive her vehicle and that she has reinforced it many times between that day and the day that the vehicle was detained in order to be impounded.

14The respondent takes the position that the appellant has not proven that the vehicle was stolen because she had the opportunity to ask that charges be laid but did not do so. The respondent also argues that despite the appellant being aware that the driver had previously taken the vehicle without her permission, she did not take additional preventative measures to ensure that he could not access the vehicle's key fob such as moving the fob around frequently or putting it in a locked drawer or safe.

15I am satisfied that the appellant took reasonable steps to ensure that the driver was aware that he did not have the appellant's consent to drive the vehicle and that the appellant took reasonable steps to prevent the driver from accessing the key fob. I disagree with the respondent's position that the appellant should have taken additional steps such as moving the key fob frequently or putting it in a locked drawer because there is nothing to suggest that either of those steps would have reduced the likelihood of the driver finding the key fob on the day that the vehicle was detained in order to be impounded.

16I also am not persuaded by the respondent's submissions that the vehicle was not stolen because no charges were laid. The test in Marshall does not require that the owner press charges for the theft under the Criminal Code. In this case, I find the appellant's position that she did everything she could is supported by her testimony that she called 911 and reported that the vehicle had been taken without her consent.

17I find that the vehicle was stolen on the date of the impoundment because it was taken without the appellant's permission by an individual who knew he did not have the appellant's consent to drive her vehicle at any time. As 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." In this case, 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 the vehicle was detained in order to be impounded under s.50.2(3)(a) of the Act.

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.