Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2014-01-29
FILE:
8552/MVIA
CASE NAME:
8552 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:
Mary Ann Spencer, Member
APPEARANCES:
For the Applicant:
No appearance
For the Respondent:
Sanjay Kapur, Agent
Heard in Toronto:
January 28, 2014
REASONS FOR DECISION
A hearing was held on January 28, 2014, at Toronto, 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 “HTA” or the “Act”).
THE TRIBUNAL RULED TO CONFIRM THE IMPOUNDMENT pursuant to section 55.1(3) of the HTA. As a result, the Applicant’s motor vehicle will remain detained at the impound facility for 45 days.
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 VOLKS CGC (the “vehicle”)
Date of Appeal: January 13, 2014
PRELIMINARY ISSUES
The hearing in this matter was scheduled to commence at 9:30 a.m. by teleconference. At the time scheduled for the hearing, the Applicant did not join the conference and the hearing was adjourned to enable Tribunal staff to contact the Applicant. Staff was unable to reach the Applicant at the telephone number he provided to the Tribunal and left messages. Tribunal staff advised that they had spoken to the Applicant a week before the hearing and had confirmed the hearing date and time. The Tribunal also notes that the Notice of Hearing had been sent by courier to the address provided by the Applicant. The Applicant failed to respond to staff’s messages, and, after a thirty minute adjournment, the hearing proceeded in his absence.
The Applicant’s vehicle was impounded on December 18, 2013. Section 9 of Ontario Regulation 631/98 states:
An appeal to the Tribunal under section 50.2 of the Act with respect to the impoundment of a motor vehicle under section 55.1 of the Act shall be commenced by filing with the Tribunal a notice of appeal, together with the fee established by the Tribunal, within 15 days after the day the vehicle was detained under subsection 55.1 (1) of the Act.
The Applicant therefore had until January 2, 2014 to file an appeal. The Applicant’s appeal was filed on January 13, 2014 together with a motion for an extension of the time period in which to file the appeal pursuant to section 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 making its decision, the Tribunal has been guided by the four part test for reasonable grounds to grant a motion for extension of time. These are:
That there was a bona fide intention to appeal within the time limit;
The length of the delay;
That there is not prejudice to the Registrar; and
The merits of the appeal.
The Applicant’s Notice of Appeal was filed eleven days late and twenty six days after the vehicle was impounded. In his Notice of Motion (Exhibit 1), the Applicant wrote that he attempted to telephone the Tribunal on January 3, 2013 but that his call was not answered. He tried again “a few days later”. The Tribunal notes that even the Applicant’s first contact with the Tribunal was outside of the time period in which to file the appeal. Notwithstanding the fact that the Tribunal recognizes that the impoundment took place just before the holiday season, the apparent lack of a sense of urgency suggests that the Applicant was not overly concerned with filing the appeal. This is reinforced by the fact that the Applicant also failed to attend the hearing even though he had spoken to Tribunal staff a week earlier. The Tribunal also notes that there is potential for prejudice to the Registrar given the length of delay as the Registrar would be responsible for accrued costs should the Applicant be successful in the appeal.
With respect to the merits of the appeal, the Applicant is the suspended driver in this case. The Tribunal notes that the Applicant’s driver’s licence is suspended until November 20, 2014 for the offence of failing to remain at the scene of an accident. In his Notice of Appeal (Exhibit 2), the Applicant writes that he did not know his licence was suspended and indicates he “was not told”. Given the fact that the Applicant was charged with an offence under the Criminal Code, this explanation stretches credulity.
In his written reasons for appeal, the Applicant indicated that he was appealing on the grounds of exceptional hardship and noted that because there is no public transportation in the municipality in which he resides, he and his family are experiencing difficulty getting to work and to school. In the absence of any testimony from the Applicant, the Tribunal cannot determine what alternatives to the impounded vehicle are available to him. The Applicant also wrote that he would not be able to afford to pay the costs required to release the vehicle from the impoundment facility. Section 10(3) of Ontario Regulation 631/98 specifically precludes the consideration of financial or economic loss by the suspended driver. For the above reasons, the Tribunal concludes that the appeal would have little reasonable chance of success.
The Tribunal finds that the Applicant has failed to establish reasonable grounds for an extension of time to file his appeal and therefore the motion is denied and the vehicle will remain impounded until the expiry of the impoundment period.
LICENCE APPEAL TRIBUNAL
_______________________
Mary Ann Spencer,
Presiding Member
RELEASED: January 29, 2014