Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2015-02-26
FILE: 9370/MVIA
CASE NAME: 9370 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.
Appellant
Appellant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Geneviève Blais, Member
APPEARANCES: For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: February 24, 2015
REASONS FOR DECISION
A hearing was held on February 24, 2015, by teleconference to consider the Appellant’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 Appellant’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 Appellant
Motor Vehicle: 2007 FORD ESC (the “vehicle”)
Date of Appeal: February 4, 2015
PRELIMINARY ISSUES
The Appellant’s vehicle was impounded on January 13, 2015. 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 time for filing an appeal to this Tribunal expired on January 28, 2015. The Appellant filed her appeal on February 4, 2015. She brings a motion to extend the time for filing her 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 the 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 Appellant’s Notice of Appeal was filed seven days late and 22 days after the vehicle was impounded. Mr. Kapur objected to the granting of an extension of time and argued that the Appellant was in the vehicle at the time of the impoundment and had a responsibility to take the necessary steps to file the appeal in a timely manner, if indeed she intended to do so.
The Appellant provided the following facts in support of her motion. She acknowledged she was in the vehicle when it was impounded. As she was tired, her partner, the suspended driver, drove the vehicle. She told the arresting officer that she was aware her partner was a suspended driver for life. When the vehicle was impounded, the impounding police officer gave the Appellant a copy of the Notice to the Registrar. By her own admission, the Appellant did not read the information provided on the one side of the Notice to the Registrar which sets out the time frames for filing an appeal.
The Appellant stated that within two or three days of the impoundment she tried to obtain information on the return of her vehicle. She telephoned two agencies that defend traffic tickets and was told to see a Justice of the Peace. The Appellant was still within the time for appeal but she waited 10 days to see a Justice of the Peace, who provided her with a Notice of Appeal. She was told to set an appointment with another Justice of the Peace to review the appeal. At the appointment on January 30, 2015, she was informed she had the wrong forum and was provided the appropriate contact information to appeal. The Appellant delayed another four days to file the appeal. She stated she needed time to access a computer, complete the forms and borrow money to pay the fee for the appeal.
The Appellant resides with the suspended driver. She is currently in receipt of social assistance and cares for their six month old child. She lives in a small rural community with access to some services. Since the date of the impoundment she has relied on friends and an aunt for transportation. She has paid for rides; however, her testimony suggests that the rides have cost her less than what she would likely have spent on gas to operate the vehicle for the same time period. She can get her groceries and attend a local clinic for medical appointments for her child. Her concern, and the hardship she alleged, is her inability to pay for the impoundment fees and the increased transportation costs associated with the suspended driver who travels some distance during the week to attend a program and who requires rides on weekends to serve a term of incarceration.
The Appellant was unable to provide reasons as to why she waited about two weeks before taking steps to seek the necessary information to file an appeal. Although she acknowledged that access to a computer is available at a local community office approximately ten minutes away from her residence, she was unable to explain the apparent lack of urgency to attend the office to do her own independent research.
Regarding the length of the delay and the prejudice to the Registrar, the Tribunal is mindful of the fact that the impoundment period is 45 days. A delay in appealing becomes significant when a proceeding must, by its nature, be expedited. Costs accrue on a daily basis and must be paid by an Appellant if unsuccessful or by the Respondent Ministry if she is successful. Mr. Kapur submitted that a delay of seven days is significant. He cited a decision by this Tribunal in 8346 v. Registrar of Motor Vehicles, where the Appellant was four days late and Vice-Chair Flude stated:
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.
Finally, regarding the merits of the appeal, in reviewing the reasons for the appeal set out in the Notice of Appeal, the Tribunal is of the view that the appeal would have little reasonable chance of success. The 45 day impoundment period expires three days following this hearing. The evidence indicates that the Appellant does have reasonable alternatives to the impounded vehicle for her present needs. She admits she was a passenger in the vehicle when it was impounded and she allowed the suspended driver to drive the vehicle. The Appellant’s concern about hardship seems related to her liability for the impoundment charges and the current costs of transportation associated with the suspended driver.
The provisions in section 10 of Ont. Reg. 631/98 are very strict and they limit what the Tribunal may consider as being exceptional hardship. That section specifically precludes the Tribunal from considering the financial or economic loss by the suspended driver. Furthermore, the Tribunal cannot consider hardship for the owner unless the owner demonstrates that “no alternative to the impounded vehicle is available,” as well as other requirements. In this case, the evidence is clear that the owner has reasonable alternatives to the impounded vehicle.
In conclusion, the Tribunal finds that the Appellant 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
Geneviève Blais, Presiding Member
RELEASED: February 26, 2015