Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 16956/MVIA

In the matter of 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 under section 55.1 of the Act for driving while suspended.

Between:

Lorraine Book Appellant

and

Registrar of Motor Vehicles Respondent

DECISION

VICE-CHAIR: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Lorraine Book, Self-represented For the Respondent: Leila Pereira, Representative

HEARD: May 7, 2025

OVERVIEW

1Lorraine Book, the appellant, appeals from the impoundment of her 2018 Hyundai (the "vehicle") on April 7, 2025 for 45 days.

2The appellant appealed on the ground that her vehicle was stolen at the time of impoundment. In her Notice of Appeal, the appellant states that she did not give permission to the fellow named to take her car and that she needs the release expedited so she can return to work. The appellant owns her own cleaning business.

3At the time it was impounded, the appellant's vehicle was stopped by the police and Keith Wilkins (the "driver") was found to be driving it without a valid driver's licence.

4At the beginning of the hearing the appellant indicated she would like to use an additional ground of appeal, specifically exceptional hardship. The Registrar of Motor Vehicles (the "respondent") had no objections to the appellant adding this additional ground of appeal at the hearing.

5The appellant appeals on two grounds: that her vehicle was stolen at the time of impoundment, and that the impoundment will result in exceptional hardship to her because she needs the vehicle to get to her work, to transport herself and other family members to medical appointments and to provide transportation for her mother.

ISSUES

6The issues in dispute are:

i. Issue 1: Was the appellant's vehicle stolen at the time it was detained in order to be impounded within the meaning of s. 50.2(3)(a) of the HTA.

ii. Issue 2: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

result

7I find that the appellant's vehicle was not stolen at the time it was detained in order to be impounded. I find that the impoundment will not result in exceptional hardship.

ANALYSIS

8The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the "HTA") may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

9An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on grounds (a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded, and (d), that the impoundment will result in exceptional hardship.

10Section 55.1(1) provides that where an officer is satisfied that a person driving a motor vehicle on a highway while his or her driver's licence is under suspension, or in contravention of a condition that prohibits him or her from driving a motor vehicle that is not equipped with an ignition interlock device, shall detain the vehicle and shall impound it under s. 55.1(3).

Issue 1: Was the appellant's vehicle stolen at the time it was detained in order to be impounded within the meaning of s. 50.2(3)(a) of the HTA

11I find the appellant's vehicle was not stolen at the time it was impounded. The burden is on the appellant to establish that her vehicle was stolen on a balance of probabilities and she has not done so.

12The appellant testified that on the day the vehicle was impounded, she was visiting friends. While she was inside the venue, the driver asked the appellant to give him the keys to the vehicle so that he could get something out of the vehicle. The appellant confirmed in her testimony that she gave the driver the keys to the vehicle without any discussion restricting the use of the keys. Later, another person told her that the vehicle had been impounded by the police.

13The appellant testified that she walked to the location where she had been told the police had impounded the vehicle and learned that the driver had been driving the vehicle.

14The appellant testified that she told the police that she gave the driver permission to drive the vehicle and has never changed her statement to the police even though she spoke to the police the day following the impoundment. The appellant regrets having made this statement to the police but is afraid to change her statement.

15When asked, the appellant testified that she had no information as to whether the driver intended to deprive the appellant of the use of the vehicle either temporarily or permanently.

16The term "stolen" is not defined in the HTA. The Criminal Code definition of "theft" provides some guidance as follows:

322 (1) Everyone commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent

(a) to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the things or of his property or interest in it;

(b) to pledge it or deposit it as security;

(c) to part with it under a condition with respect to its return that the person who parts with it may be unable to perform; or

(d) to deal with it in such a manner that it cannot be restored in the condition in which it was at the time it was taken or converted.

17The Divisional Court held in Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745 (Div. Crt), that the Tribunal should not limit the meaning of "stolen" only to an intention to take the vehicle permanently. The Court stated that the word "stolen" could also apply to an intention to take the vehicle temporarily.

18Within the meaning of s. 50.2(3)(a) of the HTA, "stolen" does not mean the use of an owner's vehicle contrary to the owner's instructions: See Auto Zone & Rentals Inc. v. Registrar of Motor Vehicles, 2016 ONLAT 10149, para. 16 (Exec. Chair).

19I am not satisfied that the driver intended to deprive the appellant of the use of the vehicle either temporarily or permanently. When asked about this in cross-examination, the appellant said she had no information to give about this.

20The appellant had no evidence that she charged the driver with stealing the vehicle or reported the vehicle stolen which is consistent with her testimony that she told the police that gave the driver permission to drive the vehicle.

21Taken in totality, the evidence presented at the hearing does not satisfy me that the vehicle was stolen on the day it was impounded. Giving the driver the keys to the vehicle without restriction indicates in my view that the appellant gave express or implied consent to the driver to operate the vehicle. This is also consistent with the appellant's statement to the police. The appellant has not proven this ground of appeal.

Issue 2: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation

22I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

23The appellant testified that she is self-employed full-time in her own cleaning business. During the impoundment period so far, she has been able to continue some of her business activity but not all by walking to some of her customers premises, renting a vehicle for part of the time until she could no longer afford it, and paying a neighbour to provide transportation to her when they are available. The appellant testified that uber and lyft services are available where she lives but they are unaffordable for her. The appellant said that her business has been reduced by an estimate one-third during the impoundment period so far.

24The appellant also testified that she has been able to walk to obtain groceries, does not need any prescription medicine, and lives alone so there are no others in her household that she is responsible to care for.

25Section 10 of O. Reg. 631/98 (the "Regulation") sets out the criteria and factors that I must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

…the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.

26If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must consider whether the impoundment will result in:

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

27I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.

28Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

29It is apparent from the appellant's testimony that arranging alternate transportation is financially difficult and inconvenient for her. However, under the legislation, inconvenience is not a factor which the Tribunal can take into consideration.

30I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.

31The appellant has been able to continue her business during the impoundment period, servicing a reduced number of customers, by walking, renting a vehicle, and obtaining transportation from a neighbour. The appellant has also been able to walk to obtain groceries.

32I find that the appellant has alternatives to the impounded vehicle available during the impoundment period including walking, ubers and other ride services, transportation from a neighbour, and has rented a vehicle for part of the impoundment period, albeit at a cost.

33The appellant has not proven this ground of appeal.

Conclusion

34The appellant has not established either of her grounds of appeal. The appellant has not established that her vehicle was stolen at the time it was detained in order to be impounded within the meaning of s. 50.2(3)(a) of the HTA.

35I also find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

36Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant's vehicle.