8346 v. Registrar of Motor Vehicles, 2013 CanLII 69338

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE:

2013-10-18

FILE:

8346/MVIA

CASE NAME:

8346 v. Registrar of Motor Vehicles

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to section 55.1(3) of the Act

Applicant

Applicant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Applicant:

Self-represented

For the Respondent:

Sonia De Santis, Agent

Heard by teleconference:

October 10, 2013

REASONS FOR DECISION

1A hearing was held on October 10, 2013, by teleconference, to consider the Applicant’s appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

2Pursuant to section 50.2 (5) of the Act, the Tribunal CONFIRMS THE IMPOUNDMENT. As a result, the Applicant’s motor vehicle will remain detained at the impound facility until the conclusion of the 45 day impound period.

BACKGROUND

3A motor vehicle was impounded pursuant to section 55.1 of the Act and the impoundment was appealed by the owner. The owner, motor vehicle and date of appeal in this matter are as follows:

Owner: The Applicant

Motor Vehicle: 2002 Mazda MLS (the “vehicle”)

Date of Appeal: September 23, 2013

PRELIMINARY ISSUES

4The vehicle was impounded on September 4, 2013. The time for filing an appeal to this Tribunal expired on September 19, 2013. The Applicant filed her appeal on September 23, 2013. She brings a motion to extend the time for filing her appeal pursuant to the provisions of s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, which states:

7. Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,

(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and

(b) give the directions that it considers proper as a result of extending the time.

5The Applicant provided background facts in support of the motion. She stated that she was in the vehicle when it was impounded. She had permitted the suspended driver to drive the vehicle on several occasions because he was more familiar with the city in which the vehicle was impounded. She believed that he had a valid driver’s licence because he had told her so. She did not ask to see his licence and, in her view, it would not be normal behaviour to do so before letting a friend drive. Unfortunately this particular friend, now an ex-friend, has a long history of licence suspensions for violations of several provisions of the Criminal Code. In short, he is a scoundrel.

6When the vehicle was impounded, the impounding police officer gave the Applicant a copy of the Notice to Registrar. The appeal rights to this Tribunal are set out on one side of the Notice to Registrar. The Applicant did not read them. The Applicant stated that the police officer advised her that most people do not pay the towing and storage fees. They leave the vehicle with the impoundment facility to be sold to pay off these fees. The Applicant decided on this course of action and took no steps to assert her rights until September 23, 2013. On September 10, 2013, she went away on vacation, returning on September 22, 2013. On the day she returned, she was talking to a friend who informed her that she would still be liable for the towing and storage fees even if the impoundment facility sold the vehicle.

7The Applicant is a single mother with one child. She is currently attending post-secondary education. She lives with her parents who help her with her child. Her parents do have cars but she is not permitted to drive them because she is not currently insured on them. She can get to her classes. She lives in a large urban area and the Tribunal takes adjudicative notice of the fact that it is served with the usual emergency medical services. Her concern, and the hardship she alleged, is her inability to pay for the impoundment fees and the impact that expense might have on her ability to continue her education. The suspended driver is currently incarcerated and can provide no compensation for the impoundment fees.

8In order to succeed in her motion, the Applicant must demonstrate that there are reasonable grounds to grant the extension of time. In considering an extension of time, there already exists a body of case law setting out a test for considering relief from the late filing of appeals. The test was reaffirmed by the Divisional Court recently in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492. Mr. Manuel had appealed a decision of this Tribunal not to extend the time for filing an appeal from a decision of the Registrar to revoke his registration. He was three days late in filing his appeal. The test applied by the Tribunal and endorsed by the Court had four elements:

14The LAT cited the relevant sections of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, and Frey v. MacDonald, stating that it would consider the following factors as constituting “reasonable grounds” for assessing this request for an extension of time in which to file an appeal:

1. The existence of a bona fide intention to appeal [within the appeal period];

2. The length of the delay;

3. Prejudice to the other party; and,

4. The merits of the appeal.

9While the Court endorsed the four part test, it was at pains to point out that the test is simply a guide to assist in determining the justice of the case and should not be slavishly followed as a sort of flow chart. A weaker fact situation under one head may be balanced by stronger facts under one or more of the remaining factors.

10By her own admission, the Applicant had no intention to appeal until after the expiry of the appeal period. It was her intention simply to permit the impoundment facility to keep the vehicle and sell it to recover the impoundment costs.

It was not until she was informed that her plan might still leave her liable for a considerable amount of money that she formulated an intention to appeal – several days after the expiry of the appeal period.

11In considering the length of the delay, the Tribunal must be cognizant of the fact that the impoundment period in this instance is for 45 days. A delay of several days becomes a major issue when a proceeding must, by its nature, be expedited. Costs accrue on a daily basis and must be paid by the Applicant if she is unsuccessful or by the taxpayers of Ontario if she is successful. The Tribunal is of the view that the four day delay in this case is a significant factor to be taken into consideration. That same exposure to impoundment costs may be considered to create a prejudice to the Registrar, albeit a prejudice contingent on the outcome of the proceeding.

12The fourth part of the test concerns the merits of the Applicant’s appeal. There are four potential grounds upon which an applicant can appeal an impoundment: the vehicle was stolen at the time it was stopped, the licence of the driver at the time was not then under suspension, the owner exercised due diligence to determine that the driver held a valid driver’s licence or the loss of the vehicle will cause exceptional hardship to a person other than the suspended driver. The Tribunal is of the view that none of the grounds of appeal are likely to succeed. The Applicant admits that she was a passenger in the vehicle when it was stopped, having given the suspended driver authority to drive it. She made no attempt to confirm whether the driver had a licence other than accept his word that he did. It is not in dispute that the driver’s licence was suspended at the time of the impoundment. Finally, the Applicant’s concern about hardship arises solely out of her liability to pay for towing and impoundment charges, something the Tribunal does not take into account because of the right to recover these charges from the suspended driver, however theoretical that right may be in any given case.

13The Tribunal finds that the Applicant has failed to establish reasonable grounds for an extension of time to file her appeal. Accordingly, her motion for an extension of time is denied and the vehicle will remain at the impoundment facility until the expiry of the impoundment period.