Licence Appeal Tribunal
FILE: 8876/MVDA
CASE NAME: Ryen Maxwell v. Registrar, Motor Vehicle Dealers Act, 2002
Motion for an Order to Extend the Time to File an Appeal under the Motor Vehicle Dealers Act, 2002, S.O. 2002, c. 30, Sch. B, and Regulations
Ryen Maxwell Appellant
-and-
Registrar, Motor Vehicle Dealers Act, 2002 Respondent
ADJUDICATOR: Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Appellant: Pradeep Chand, Counsel Murray Snider, Counsel
For the Respondent: Michael Rusek, Counsel
Heard in Toronto: June 13, 2014
REASONS FOR DECISION AND ORDER
BACKGROUND
This is a hearing before the Licence Appeal Tribunal (the "Tribunal") arising out of a Notice of Motion, dated June 4, 2014, to extend the time to allow Ryen Maxwell to appeal against a Notice of Proposal to Revoke Registration (the "NOP") issued by the Registrar, Motor Vehicle Dealers Act, 2002 (the "Registrar") on April 29, 2014. Mr. Maxwell has been registered as a motor vehicle salesperson since 2004.
At the motion, Counsel were in agreement that the deadline for filing an appeal of the NOP was May 14, 2014 though the Registrar, in his letter to Mr. Maxwell enclosing the NOP, advised that the appeal must be filed "within 18-days of the date of the proposal" (original emphasis). It is not disputed that by letter dated May 14, 2014, Mr. Chand, Counsel for Mr. Maxwell, wrote to the Registrar advising that his office had been retained by Mr. Maxwell in the matter and requested the consent of the Registrar to the late filing of the appeal. Mr. Rusek, on behalf of his client the Registrar, consented to that extension to May 30, 2014. In that letter, he acknowledged that Mr. Chand had informed the Registrar of Mr. Maxwell's "intention to appeal the Notice of Proposal dated April 29, 2014".
An appeal was not filed on Friday, May 30, 2014. A representative of the Registrar contacted the Tribunal on the morning of Monday, June 2, 2014 and confirmed that Mr. Maxwell had not filed an appeal whereupon the Final Notice revoking the registration was prepared and issued that day. On June 3, 2014, Mr. Chand sent a letter, by email, to Mr. Rusek stating that "due to an administrative error", his client's Notice of Appeal was not sent to the Tribunal and to the Registrar on May 30, 2014 and requested the Registrar's consent to the filing of the Notice of Appeal on that day. The Notice of Appeal was filed on June 3, 2014 and the Notice of Motion to extend the time for filing the appeal was delivered on June 4, 2014. The Registrar opposes the extension of time.
DECISION
The Tribunal has considered the materials filed by the parties, the law and submissions of Counsel and grants the relief sought, for the following reasons.
ANALYSIS
Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, gives the Tribunal the power to extend the time to file an appeal:
...if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, ...
In exercising that power, the Tribunal is guided by the principles for consideration on motions for the extension of time set out in the decision of the Divisional Court in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492, on appeal from this Tribunal. The decision sets out the four factors to be considered in assessing a request for an extension of time, as follows:
- The existence of a bona fide intention to appeal;
- The length of the delay;
- Prejudice to the other party; and
- The merits of the appeal.
Citing Frey v. MacDonald, [1989] O.J. No. 236 (C.A.), the Court stated that the general rule is that time for an appeal is not extended unless the appellant has shown that these factors support an extension. However, the Tribunal notes that the courts have also determined that these factors are simply a guide to assist in determining the justice of the case. A weaker fact situation under one head may be balanced by stronger facts under one or more of the remaining factors.
The Tribunal will assess each of these factors in light of the material before it and the submissions of the parties.
Intention to Appeal
Mr. Rusek in his letter dated May 20, 2014, to Mr. Chand acknowledged that the Appellant had an intention to appeal. Mr. Chand had been retained for that purpose. On that basis, Mr. Rusek consented to an extension to May 30, 2014. The facts support a finding by the Tribunal that this ground has been met.
Length of the delay
As noted above, the statutory time period for filing an appeal is 15 days. In this instance, on or about May 14, 2014. The Registrar as is his usual practice allows for 18 days. Mr. Chand, on behalf of Mr. Maxwell, requested and was given an extension by the Registrar of a further 2 weeks, to Friday, May 30, 2014. The appeal was not filed that day, but rather 2 business days later, a delay that was the result of an administrative error, as stated by Mr. Chand in his letter to Mr. Rusek.
Mr. Rusek noted that in the Manuel decision, the Tribunal denied an extension when the appeal was filed only three days late. Here, the appeal might be said to be two weeks late. The Tribunal is guided by the principles noted above, in light of the particular facts. Mr. Chand, in his letters of May 14 and June 3, 2014, offered an explanation for the delay. The explanation for the latter delay of 2 business days, though unfortunate, and perhaps embarrassing for Counsel, is not unreasonable.
Prejudice to the Other Party
Mr. Chand submitted that his client would suffer extreme prejudice if not permitted to appeal the NOP; he would lose his livelihood. That may well be true, but the Tribunal is required to consider the prejudice to the Registrar that would result from the extension of the time period. The Registrar moved immediately following the expiry of the initial extension to carry out the NOP. He was entitled to do so. The Registrar is mandated to protect the car buying public. Mr. Rusek submitted that there was considerable risk to the public. The NOP, dated April 29, 2014, is detailed and extensive. The allegations are serious. However, the Tribunal also notes that the transactions in issue are for a time period between May 2011 and January 2013. The Registrar may have cause for concern, but on the face of this NOP, the risk does not appear to be immediate and ongoing.
The Tribunal concludes, therefore, that there is not significant prejudice to the Registrar on the facts before it.
The Merits of the Appeal
It is up to an appellant on a motion for an extension of time to demonstrate some merit to his case. Mr. Chand in his submissions stated that disclosure has not been provided and he is lacking full particulars and is therefore unable to respond with a defence at this stage. The reasons for appeal as set out in the Notice of Appeal are scant. However, this is not a situation like Manuel where there had been previous disciplinary proceedings involving the appellant and findings made in previous proceedings on the basis of which the Tribunal could reasonably conclude that the appeal did not have merit. The Tribunal notes, however, that given the lack of evidence regarding this factor, it could not weigh this factor in favour of the Appellant. The Tribunal notes that Mr. Maxwell has been registered as a salesperson since 2004 and presumably this has been his livelihood for the past 10 years. That registration has now been revoked with, as Mr. Chand submits, considerable hardship resulting to him and his family.
Justice of the Case
As has been stated in the jurisprudence, the "justice of the case" is the overriding consideration. Here, the Registrar recognized the intention to appeal. An initial extension was given. There was a delay in filing the appeal even then. It was a delay of two days. As stated in Manuel, a relatively short delay will not always result in an extension, however, neither should a final order made in circumstances such as this preclude an extension. This is neither a lengthy nor unexplained delay. Further, this was not a delay of Mr. Maxwell's doing. The Tribunal cannot conclude that he is the author of his own misfortune. Mr. Chand has acknowledged that an administrative error occurred at his office. The justice of the case would not be served by depriving Mr. Maxwell his right to appeal on these facts.
The Tribunal is therefore granting the relief requested. However, the Registrar's mandate to protect the public interest is not diminished. While the NOP contains allegations only, these are serious and touch on numerous transactions.
Neither counsel made submissions at the hearing regarding costs although Mr. Chand in his materials stated that he would be seeking costs in the event that the Registrar did not consent to the motion. The parties may request a teleconference hearing to deal with this issue though in these circumstances, the Tribunal urges the parties to proceed with the merits of the matter expeditiously, a course of action which will more reasonably serve the parties' respective interests.
ORDER
Given the foregoing, the Tribunal orders:
The motion is granted and the time for the Appellant to file his appeal is extended to June 3, 2014, the date on which it was filed. As a result, the Final Notice dated June 2, 2014 is set aside and Mr. Maxwell's registration is no longer revoked.
A pre-hearing will be scheduled to take place within 30 days of this order.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
Released: June 18, 2014