Licence Appeal Tribunal
FILE: 9736/GAR
CASE NAME: 9736 v. Director of Vehicle Inspection Standards
Motion for an Order to Extend the Time to File an Appeal under the Highway Traffic Act, R.S.O. 1990, c. H.8
Qualander Shah dba Shah’s Auto Sales & Service and Qualander Shah Appellant
-and-
Director of Vehicle Inspection Standards Respondent
ADJUDICATOR: Patricia McQuaid, Vice-Chair
APPEARANCES:
For the Appellant: Ben Hogan, Paralegal
For the Respondent: Patrick Moore, Counsel
Heard in Toronto: September 14, 2015
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 August 18, 2015, to extend the time to allow Qualander Shah dba Shah’s Auto Sales & Service and Qualander Shah to appeal against a Notice of Proposal (the “Proposal”) to refuse to issue a motor vehicle inspection station licence to Qualander Shah and to refuse to register him as a mechanic, issued by the Director of Vehicle Inspection Standards (the “Director” or the “Respondent”) on March 18, 2014.
At the motion, Counsel for the Respondent advised that the Proposal was sent to the Appellant by registered mail on March 21, 2014. Deemed delivery was, therefore, on March 26, 2014. The deadline for filing an appeal of the Proposal was 15 days thereafter, namely, on or about April 10, 2014. The appeal and this Notice of Motion were filed with the Tribunal on August 19, 2015. The Respondent opposes the motion.
DECISION
The Tribunal has considered the materials filed by the parties and the submissions of Mr. Hogan and Mr. Moore, and denies 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
As noted above, the Proposal was deemed to have been served on March 26, 2014. There was no information provided by the Appellant as to the date of actual receipt. The 15 day appeal period ended on or about April 10, 2014. Mr. Hogan submitted that Mr. Shah needed time to pay the fines that resulted from his various convictions under the Act, in January 2013. Those convictions form the basis, in part, of the Director’s Proposal. The fines were due to be paid in January 2014. Mr. Hogan stated that the fines were paid around the time that the Notice of Appeal was finalized, therefore, some time in the summer of 2015. The Appellant may have had a long term plan to support reinstatement of his licence and registration by the Director, but there is no evidence before the Tribunal which demonstrates an intention to appeal during the appeal period, that is, in March-April 2014.
Length of the delay
The delay in filing the Notice of Appeal was almost 16 months. No extenuating circumstances of any sort were offered by way of explanation. Mr. Hogan acknowledged that there was indeed “some delay”. The length of the delay might be better characterized as excessive.
Prejudice to the Other Party
The Tribunal is required to consider the prejudice to the Director as a result of the delay that would result from an extension of the appeal period. In this instance, the Appellant has not been operating an inspection station since November 2012, when he voluntarily terminated his licence. The consumer protection aspect of the Director’s role is not therefore a significant concern at this stage. Mr. Moore conceded that there may be institutional issues in terms of securing the appropriate Ministry witness, but there is no specific prejudice to which he could refer the Tribunal.
The Tribunal concludes, therefore, that there is no significant prejudice to the Director 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. Hogan stated that since his conviction in January 2013, the Appellant has had no further problems (though it must be noted that he has not been authorized to perform motor vehicle inspections since November 2012). He has re-organized his business in a manner which will mitigate the risk of issues encountered in the past. He has no criminal record. Mr. Hogan suggested that the time that Mr. Shah has been without a licence has been a penalty in and of itself. However, it must be noted that the length of time without a licence, arises in large measure from the very fact that he did not appeal the Proposal in a timely way. Mr. Hogan submitted that what Mr. Shah would be requesting at a hearing is a second chance, for which there is precedent in the Tribunal’s jurisprudence.
Mr. Moore acknowledged that there is a substantial amount of discretion with the Tribunal as to whether an appellant should be granted a second chance, but submitted that it is not at all clear that this Appellant would be given that second chance on these facts. Mr. Shah had 12 convictions under the Act in 2013, for among other things, certifying a vehicle when it was not properly inspected. He submitted that there is a large amount of uncontradicted evidence, by way of convictions since 1983, of non- compliance with the Act and regulations.
It is possible that a Tribunal member hearing an appeal of this matter might grant that second chance. However, the Tribunal does put some weight on the fact that the matters cited in the Proposal are not merely allegations, but convictions in industry related matters. As stated in the Manuel decision, an appellant can demonstrate some merit to the case by offering some clear and specific evidence that he would put forward at a hearing to support his position; here, the Tribunal has no evidence from Mr. Shah as to what changes he has made to his business operation. In light of this, the Tribunal could not weigh this factor in the Appellant’s favour.
Justice of the Case
As has been stated in the jurisprudence, the “justice of the case” is the overriding consideration. The other factors considered above may properly be understood to be factors to assist in assessing whether the justice of the case requires that the extension be granted. This was both a very lengthy and a largely unexplained delay. The explanation that Mr. Shah needed the time to pay his outstanding fines is not persuasive. Mr. Shah is still in the motor vehicle service business. He has his own garage and employs three mechanics. He is, however, not able to conduct the required inspections on the vehicles without the licence. This means that he has to pay someone else to do the inspections, which may lead to delays and increased costs, and hence reduces his profits. Mr. Hogan stated that the Appellant is struggling as a small business owner, and that may well be, but based on the evidence before the Tribunal, it cannot conclude that the fact that he is without this licence is at the root of that struggle.
A delay of almost 16 months is so extraordinary that other factors would need to be very strong to justify an extension, even where there is no significant prejudice to the Respondent. The Tribunal does not find that the justice of the case requires that an extension be granted.
Further, Mr. Moore stated that the Appellant is permitted to re-apply for the licence and registration. While there can be no guarantees of a positive response to such an application, this would give Mr. Shah the opportunity to put a fulsome set of facts before the Director regarding the steps taken by him in the preceding year or two which may cause the Director to re-evaluate his concerns regarding Mr. Shah’s ability to operate a motor vehicle inspection station in compliance with the Act and its regulations.
Given the foregoing, the extension of time for the filing of the appeal is denied.
LICENCE APPEAL TRIBUNAL
Patricia McQuaid, Vice-Chair
Released: September 29, 2015