Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8755/CVIS
CASE NAME: 8755 v. Registrar of Motor Vehicles
Appeal under Section 50.3 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to Section 82.1 of that Act
Transit Logistics Solutions Inc. Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kenneth W. Koprowski, Vice-Chair
APPEARANCES:
For the Appellant: Holly Kennedy, Agent
For the Respondent: Patrick S. Moore, Counsel
Heard in Windsor May 12, 2014
REASONS FOR DECISION AND ORDER
This is an appeal to the Licence Appeal Tribunal by Transit Logistics Solutions Inc. (the "Appellant") respecting an Impoundment of a trailer ("the trailer") pursuant to sections 50.3 and 82.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("the Act"). The Appellant also brought a Motion to extend the time for filing an appeal of the Order of Impoundment dated March 22, 3014. The Motion was heard on May 12, 2014, before the hearing on the merits of the appeal.
FACTS:
The facts leading up to the impoundment were not in dispute. The trailer in question was impounded for the period of 15 days effective March 22, 2014, until April 6, 2014. The Order for Impoundment was made because of critical defects that were found in the brakes of the trailer on the date of inspection, which was March 22, 2014. The trailer was registered to Nova Logistics Inc. It was towed by a cab registered to the Appellant.
The Tribunal received the Notice of Appeal on April 7, 2014. The appeal was considered to have been filed one day late. The appeal should have been filed by no later than April 6, 2014, by virtue of the wording of section 50.3(1) of the Act which states as follows:
50.3 (1) The owner of a commercial motor vehicle or trailer that is impounded under section 82.1 may, upon paying the fee established by the Tribunal, appeal the impoundment to the Tribunal.
(Emphasis is added)
Section 50.3(1) provides that the owner of the trailer may appeal while the trailer is impounded. After April 6, 2014, the trailer was no longer impounded, so that, by the time the appeal was filed on April 7, 2014, it could no longer be said that the trailer "is impounded." Therefore, the Appellant brought a Motion to extend the time for filing its appeal.
The Registrar argued against the Motion.
In addition, both parties brought all their witnesses to the hearing of the Motion, in anticipation of possibly having a further hearing on the merits of the appeal, depending on the outcome of the Motion. If the Motion were allowed, and the Appellant granted an extension of time to file its appeal, the hearing on the merits could proceed.
Although the Tribunal often adjourns proceedings to provide written reasons for its decision at a later date, it seemed unreasonable to do so in the circumstances of this case. If the parties and their witnesses were dismissed, and if the Motion were subsequently granted, then the parties would have to return yet again for the hearing of the appeal on its merits, thereby adding further time and causing additional expense and inconvenience to them and to their witnesses.
Therefore, the Tribunal considered it prudent to recess and consider the arguments on the Motion and then to provide its Decision, orally, on May 12, with written reasons to follow. At the conclusion of its deliberations, the Tribunal informed the parties on May 12 that the Tribunal dismissed the Motion. What follows are the reasons for that Decision.
The Appellant's position
The Appellant put forward three arguments.
First, Ms. Kennedy argued that she believed that the appeal could not be filed until after the impound period was completed. This was her first appeal of an Order for Impoundment of one of the Appellant's vehicles. She had never dealt with this issue previously.
Secondly, it was always the intention of the Appellant to appeal the Order of Impoundment.
Thirdly, Ms. Kennedy argued that the Appellant had an argument on the merits. She argued that the brakes in question needed only an air fitting to be repaired. She argued that the defect was not a critical defect because, once the repair to the air line was completed, the brakes functioned properly. In addition, the trailer had been inspected four days previously at a different inspection station and no issues were found with the trailer.
The Respondent's position
Counsel for the Respondent argued, first, that there was no reason that the Appellant could not have been able to determine the time within which it was to appeal. Information on the appeal process was given to the trucker at the time of the Order of Impoundment. Also, the Order itself referred the Appellant to the Tribunal's address, telephone numbers and website, so that Ms. Kennedy or anyone associated with the Appellant could have obtained the necessary information using that contact information.
Secondly, counsel questioned whether the Appellant had standing to appeal the Order of Impoundment. He relied on the provisions of section 50.3(1) of the Act, cited earlier in these Reasons. The section clearly states that it is the "owner" who may appeal the impoundment. In this case, the owner of the trailer that was impounded, as shown in the registration of the trailer, found at Tab 8 of the Respondent's Exhibit Book, was Nova Logistics Inc., located at 379 Arlington Boulevard in Windsor, Ontario. The Appellant was not the owner. As well, the address of the Appellant was entirely different.
The Act gives a right of appeal only to the owner. It was Nova Logistics Inc. who should have appealed, not the Appellant. Counsel further argued that an Order extending the time to appeal could not be granted to a party (that is, the Appellant) that did not have the right to appeal in the first place. Further, any misunderstanding by the Appellant about when the appeal should be filed is irrelevant if it did not have that right to begin with.
Thirdly, counsel for the Registrar argued that the appellant did not have an argument on the merits. Section 50.3(3)(b) provides that the relevant time to consider whether there was a critical defect was at the time of the inspection, and not after repairs were made, as the Appellant had argued. Section 50.3(3)(b) states:
(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may order the Registrar to release the vehicle are,
(b) that the commercial motor vehicle or trailer had no critical defects at the time of the inspection under section 82.1.
(Emphasis is added)
Counsel argued that, despite repairs having been done to the trailer after the Order of Impoundment was issued, the repairs could not negate the critical defect at the time of the inspection. It did not matter whether the repair was simple or complex. The quality of repair did not matter because the relevant time for establishing a critical defect was the time of the inspection. In support of this argument, counsel referred the Tribunal to an earlier Decision of this Tribunal on that issue, Sunrise Equipment Auctions Inc. (Re) [2007] O.L.A.T.D. No. 278, at paragraph 93.
By way of reply, Ms. Kennedy did not deny that the addresses of the Appellant and Nova Logistics Inc. were different. However, she argued that the principal officer of each corporation was the same. Notwithstanding that, she further acknowledged that the individual officer's name does not appear on the registration certificate of the trailer. She further acknowledged that she was aware that a corporation is an entity separate from the individual officers of that corporation.
ISSUE:
The issue that the Tribunal had to consider, initially, was whether the Appellant should be granted an extension of time within which to file its appeal.
LAW:
In addition to the sections of the Act cited earlier in these reasons, the Act authorizes the Tribunal to make only one of two decisions on an appeal; that is, to confirm the impoundment or to order the Registrar to release the vehicle. Section 50.3(5) states:
(5) The Tribunal may confirm the impoundment or order the Registrar to release the vehicle.
APPLICATION OF THE LAW TO FACTS:
The Tribunal agrees that the Appellant does not have standing to appeal the Order of Impoundment of the trailer issued March 22, 2014. The owner of the trailer was Nova Logistics Inc. Section 50.3(1) clearly states that it is the owner who may appeal the Order of Impoundment. Transit Logistics Solutions Inc., the Appellant, is not the owner. Extending the time to appeal the Order does not, in the circumstances of this case, create a right for the Appellant that did not exist in the first place.
The Tribunal also agrees with the Registrar's position that the time to establish a critical defect is at the time of inspection on the day on which the Order of Impoundment was issued, and not after repairs were made and not at the time of any previous inspection.
Therefore, for the foregoing reasons, the Tribunal dismisses the Appellant's Motion for an order to extend the time to appeal the Order of Impoundment dated March 22, 2014.
As a consequence of the Tribunal's finding on the Motion, the Appellant's appeal of the Order of Impoundment is denied.
DECISION:
Upon the application by Transit Logistics Solutions Inc. to appeal the impoundment dated March 22, 2014, of a trailer, pursuant to Section 50.3 of the Highway Traffic Act, and having dismissed the Motion of the Appellant to extend the time to file its appeal, on having heard the submissions of the Registrar and of the Appellant;
IT IS THE DECISION OF THE TRIBUNAL that the impoundment be confirmed.
LICENCE APPEAL TRIBUNAL
Kenneth W. Koprowski Vice Chair
Released: May 27, 2014