Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 9824/MVIA
CASE NAME: 9824 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: Marc D’Amours, Vice-Chair
APPEARANCES:
For the Appellants: Christopher Watkins, Counsel
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: November 6, 2015
REASONS FOR DECISION
A teleconference hearing was held on November 6, 2015 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”).
Pursuant to section 50.2(5), the Tribunal CONFIRMS THE IMPOUNDMENT. As a result, the Appellant’s motor vehicle will remain detained at the impound facility for 90 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: 2005 Dodge RPC (the “vehicle”)
Date of Appeal: November 6, 2015
The Appellant’s vehicle was impounded on August 18, 2015. Pursuant to section 9 of O. Reg. 631/98, an Appellant has 15 days to file an Appeal. A Notice of Appeal was filed on September 30, 2015, twenty eight days past the prescribed delay. A hearing to consider an extension of time to file the Notice of Appeal was scheduled on October 21, 2015. On that day, at the time scheduled, the Tribunal waited 30 minutes because counsel did not appear, and denied the extension. On October 26, 2015, the Tribunal received the Appellant’s Motion to set aside the October 26, 2015 decision, and to ultimately decide on the merits of the impoundment.
The Tribunal heard the motion and the Appellant made submissions on all of the issues.
The Tribunal must first consider the Motion to allow the Appellant to set aside the Tribunal’s decision to confirm the motor vehicle’s impoundment as a result of counsel’s non-attendance.
MOTION FOR SETTING ASIDE THE TRBUNAL’S DECISION
On October 26, 2015, the Appellant filed a Notice of Motion for an extension of time to file the Appeal outside the legislated timeline.
Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, 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.
As noted in the Divisional Court’s decision in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492, four factors are to be considered in assessing a request for an extension of time:
The existence of a bona fide intention to appeal, within the appeal period;
The length of the delay;
Prejudice to the other party (the Registrar); and
The merits of the appeal.
The Appellant’s Counsel indicated, in his Notice of Motion, that he had mis-diarized the hearing date. He, immediately, after taking knowledge of this error, filed a new Notice of Motion to extend the time for the Appeal.
The hearing was scheduled for Wednesday, October 21, 2015, and the Notice of Motion was filed on Monday, October 26, 2015. This is merely two business day after the scheduled Hearing date. The Appellant was incarcerated at the time of the Hearing, and he could not attend. Through his counsel, the Appellant did file a Notice of Appeal, on September 30, 2015. The Appellant cannot be faulted for counsel’s absence at the hearing.
The Tribunal finds that there are reasonable grounds for an extension of time. The Appellant had filed a Notice of Appeal on September 30, 2015 confirming a bone fide intention to appeal. The delay in bringing forward this Notice of Motion was only two business days. Given the very short delay, there is no undue prejudice to the Ministry of Transportation.
The Tribunal must now consider the initial Notice of Motion for an extension of time to file the Appeal outside the legislated timeline.
As set forth, the same criteria are to be applied to this Notice of Motion.
The Appellant was arrested on August 18, 2015 for different driving violations. At that time, his motor vehicle was initially impounded for a period of 45 days. The Registrar, upon receiving the Notice of Impoundment, increased the impoundment to 90 days. That decision was based on the fact that the Appellant had been subject of previous motor vehicle impoundments. Subsection 55.1(3) of the Act states:
(3) A motor vehicle detained under subsection (1) shall be impounded as follows:
For 45 days, if there has not been any previous impoundment under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
For 90 days, if there has been one previous impoundment under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
For 180 days, if there have been two or more previous impoundments under this section, within a prescribed period, with respect to any motor vehicle then owned by the owner of the vehicle currently being impounded.
At the Hearing, the Appellant’s counsel indicated that his client had resolved his matters before the Court, on September 2, 2015. At the time of this Hearing, his client was incarcerated, and had been so since his arrest on August 18, 2015.
The Notice of Motion indicates that the Appellant had no knowledge that an Appeal could be filed. It also discloses that “once he retained Mr. Watkins, he was advised of this appeal process.” The Notice of Appeal was filed on September 30, 2015.
The Tribunal cannot conclude that the Appellant had a bone fide intention to file a Notice of Appeal. The Appellant, after being informed of his rights to Appeal, filed a Notice of Appeal 28 days later. That is a long time, and this length of time can cause undue hardship to the Ministry of Transportation if the Appellant is successful in his Appeal, since the Ministry would have to pay the impoundment fees that accumulate each day. Therefore, the initial Notice of Motion to extend the time to file the Notice of Appeal is denied.
Furthermore, in regards to the fourth factor – the merits of the appeal, the Tribunal finds that this appeal does not have any merit. As confirmed by the Appellant’s counsel, and by the increased impoundment period, the Appellant had been subject to a prior motor vehicle impoundment. The Appellant relies solely on exceptional hardship to have his motor vehicle released, specifically on section 50.2(3)(d) which reads as follows:
(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
(d) that the impoundment will result in exceptional hardship.
An Appellant can only rely on section 50.2(3)(d) if it is first impoundment pursuant to section 50.2(4), which indicates:
(4) Clause (3)(d) does not apply if there was a previous impoundment under section 55.1 with respect to any motor vehicle then owned by the same owner.
Hence, even the Appellant were to be granted his motion to extend the time for his appeal, he would not be able to argue the grounds of exceptional hardship.
DECISION
After considering the evidence and the motion to extend the time for appeal, pursuant to the authority vested in the Tribunal under section 50.2(5) of the Act, the Tribunal denies the motion to extend time, and confirms the impoundment of the Appellant’s motor vehicle, and it will remain at the impound facility for 90 days.
LICENCE APPEAL TRIBUNAL
Marc D’Amours, Vice-Chair
RELEASED: November 9, 2014