Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2015-06-22
FILE:
9593/MVIA
CASE NAME:
9593 v. Registrar of Motor Vehicles
Motion for an Order to Extend time to file an 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
MOTION DECISION
ADJUDICATOR:
Geneviève Blais, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Sonia De Santis, Agent
Heard by teleconference:
June 16, 2015
REASONS FOR DECISION
A hearing was held on June 16, 2015, by teleconference, to consider the Appellant’s motion to extend the time for filing an appeal. The Appellant wishes to pursue an appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA” or the “Act”).
At the conclusion of the hearing, the Tribunal gave an oral decision denying the motion, with written reasons to follow. These are the reasons.
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 DODG, SPR (the “vehicle”)
Date of Appeal: May 27, 2015
THE MOTION
The Appellant’s vehicle was impounded on April 24, 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 May 8, 2015. The Appellant filed her appeal on May 27, 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 provided the following facts in support of her motion. She acknowledged that, when the vehicle was impounded, her husband, the suspended driver gave her
a copy of the Notice to Registrar that had been provided to him by the police officer. The Appellant stated she did not read the information provided on the back side of the Notice to the Registrar which sets out the time frames for filing an appeal. She admitted that it did not cross her mind to fully read the document and take steps to file the appeal, even though the impounded vehicle is used to operate the family business.
Approximately two weeks later, the Appellant attended the police station to inquire about an appeal and alleged they were unable to assist her. Soon after, she contacted her lawyer who advised her of the proper procedures. In spite of this information, she delayed a further two weeks to file the appeal. The Appellant was unable to explain the additional delay.
The Appellant indicated that she and her husband operate a small flooring company. The impounded vehicle contains the tools for the business. The absence of the tools and the inability to use the vehicle prevented them from operating the business, which is their main source of income. The Appellant acknowledged that she owns another vehicle which has provided an alternative to the impounded vehicle.
The Appellant stated that the vehicle was impounded at her home. She provided the following version of events as told to her by a company employee. The vehicle was in the driveway and the employee wanted to switch the vehicle to park his own car for the day. Her husband, the suspended driver, decided to drive the vehicle out of the driveway to allow the employee to park his car. The police happened to be in the area at that time and stopped her husband. The Appellant did not witness the incident as she was in the house. The Appellant is aware that her husband is a suspended driver and he was forbidden to drive the vehicle. She had instructed the employee not to allow him to drive at any time.
The Appellant acknowledged that on June 8, 2015, as the impoundment period had expired, she paid the impoundment fees and the vehicle has been released from the impound facility.
The Registrar’s Agent objected to the granting of an extension of time and argued that the Appellant had a responsibility to take the necessary steps to file the appeal in a timely manner, if indeed she intended to do so. She did not act in good faith and was not mindful of deadlines. The Appellant has failed to provide valid reasons that prevented her from filing the appeal on time.
The Tribunal notes that the Appellant’s Notice of Appeal was filed 18 days late and 33 days after the vehicle was impounded. By her own admission, she failed to completely read the Notice to Registrar and the appeal rights to this Tribunal. She took no steps to assert her rights in a timely fashion. The Tribunal, on the evidence, cannot conclude that there was a bona fide intention to appeal within the prescribed time period.
In considering the length of the delay, the Tribunal is mindful that the impoundment period in this instance is for 45 days. A delay of several days becomes a major issue 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 Registrar if an appellant is successful. An18-day delay beyond the statutory appeal period is a significant factor to be taken into consideration in assessing prejudice to the Registrar.
With respect to the merits of the appeal, the Tribunal does not need to resolve whether the Appellant would be successful; it must determine whether there are reasonable grounds for the appeal. The reasons for appeal set out in the Appellant’s Notice of Appeal indicate that she is appealing on the grounds of due diligence and of exceptional hardship.
The Appellant states that she trusted an employee to ensure that her husband would not drive the vehicle and she had forbidden her husband to drive the vehicle. However, this is not the nature of the “due diligence’ that the Act speaks to; s 50.2(3) of the Act reads:
(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 motor vehicle are,
(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;
(b) that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension;
(c) that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension; or (emphasis added)
(d) that the impoundment will result in exceptional hardship.
Here, the Appellant knew the driver, her husband, had his licence suspended. The facts in this case do not constitute due diligence as contemplated by s. 50.2(3)(c). There may possibly be facts that would a defence of ‘stolen’, but the Tribunal need not determine that in coming to a decision on this motion.
With respect to the defence of exceptional hardship, the provisions in section 10 of O. Reg. 631/98 are very strict and they limit what the Tribunal may consider as being exceptional hardship. The Appellant lives in an urban area and has a second vehicle. She has an alternative to the impounded vehicle. That fact would very much diminish the likelihood of success on this ground.
Considering the evidence and submissions of the parties, the Tribunal is of the view that the justice of the matter requires the denial of an extension of time. Weighing all of the factors, particularly the length of the delay, the lack of a credible explanation for the delay and the significant prejudice to the Registrar that might result from an adverse finding, the Tribunal finds that the Appellant has failed to establish reasonable grounds for an extension of time to file its appeal.
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.
LICENCE APPEAL TRIBUNAL
Geneviève Blais, Member
RELEASED: June 22, 2015