Licence Tribunal
Appeal d'appel en
Tribunal mati?re de permis
DATE:
2014-01-14
FILE:
8522/MVIA
CASE NAME:
8522 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
DECISION AND ORDER
ADJUDICATOR:
Simon Dann, Member
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Sonia De Santis, Agent
Heard by teleconference:
January 7, 2014
REASONS FOR DECISION AND ORDER
A hearing was held on January 7, 2014, by teleconference, to consider the ApplicantÕs appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the ÒActÓ).
Pursuant to section 50.2 (5) of the Act, the Tribunal CONFIRMS THE IMPOUNDMENT. As a result, the ApplicantÕs motor vehicle will remain detained at the impound facility until the conclusion of the 45 day impound period.
BACKGROUND
A 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: 2003 Pontiac GAG (the ÒvehicleÓ)
Date of Appeal: December 18, 2013
PRELIMINARY ISSUES
The vehicle was impounded on November 25, 2013. The 15 day period for filing an appeal to this Tribunal expired on December 10, 2013.
The Applicant, who was the driver of the vehicle at the time of the impoundment and also the owner, filed her appeal on December 18, 2013 and 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:
- 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.
In determining whether or not to grant the extension, the Tribunal may consider other factors such as whether there was a bona fide intention to appeal, the length of the delay, whether there is prejudice to the other party and the merits of the appeal.
The Applicant described the basis of her late filing of the appeal as being that she was uninformed of the law relating to vehicle impoundment appeals and that the appeal must be filed within 15 days of the impoundment.
When asked if she knew the reason for the impoundment, the Applicant acknowledged it was due to the fact that she was, at the time of the impoundment, a disqualified driver.
She said she received an impoundment and release form from the impounding officer but did not ask the police officer any questions about the impoundment. She acknowledged it was initially her intention to wait to the end of the impoundment period.
At a later date, being on or around December 14th, the Applicant said she was speaking with a co-worker who advised her to appeal the impoundment.
The Applicant said she then researched the subject, including Internet searches and contacts with police and Tribunal staff, to learn what steps she had to go through in order to file an appeal. The Applicant's completed appeal form was received by the Tribunal on December 18th.
When the Applicant was asked if there was any illness or other reason whereby she may have been obstructed or prevented from filing an appeal on time, she replied "no" and it was just that she did not know about the appeal opportunity.
In closing summaries, the Registrar's Agent submitted that the Applicant did not originally intend to appeal the impoundment but only appealed after speaking with a co-worker.
The Applicant summarized her position by reiterating her lack of knowledge about the impoundment and appeal process. She said the information is not clear enough for the public to easily understand the importance of the 15 day filing period and there is not enough emphasis on that point.
In 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 in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492. The test applied by the Tribunal and endorsed by the Court had four elements (which are also referenced above):
The existence of a bona fide intention to appeal [within the appeal period];
The length of the delay;
Prejudice to the other party; and,
The merits of the appeal.
While the Court endorsed the four part test, it pointed 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.
By her own admission, the Applicant said she had no original intention to appeal until four or more days after the expiry of the 15 day appeal period. This changed after speaking with a co-worker and it was then that she began her research on the appeal process. The completed appeal was delivered to the Tribunal's office 8 days after the expiry of the impoundment period.
In considering the length of the delay, the Tribunal keeps in mind that the impoundment period in this instance is for 45 days. A delay of a week or more 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 8 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.
The fourth part of the test concerns the merits of the ApplicantÕs appeal. While there are four potential grounds upon which an applicant can appeal an impoundment, the appeal in this case is made on the ground that the loss of the vehicle will cause exceptional hardship to a person(s) other than the suspended driver.
The Tribunal is also of the view that this ground of appeal is unlikely to succeed as the Applicant, who is the vehicle owner, admits that she was the driver of the vehicle when it was stopped and that she knew she was a disqualified driver.
The ApplicantÕs concern about hardship (as written in her Notice of Appeal) arises out of the impact on other family members who are dependent on the vehicle for transportation to work, education, and medical appointments. But, as the 45 day impoundment period was scheduled to expire two days from the hearing date, it appears evident that alternatives to the Applicant's vehicle have been found and others have managed without the impounded vehicle.
The Applicant's appeal is therefore seen to be based on her liability to pay for towing and impoundment charges, something the Tribunal does not, generally, take into account.
It is also the Tribunal's view that the Applicant, who is both the owner and was the disqualified driver of the vehicle at the time of the impoundment, bore a responsibility to understand the implications of the vehicle impoundment, the process of impoundment and any possible remedies, especially if she knew that the loss of the vehicle could have potentially adverse impacts on other members of her family.
Therefore, the 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.
LICENCE APPEAL TRIBUNAL
Simon Dann, Member
Released: January 14, 2014