New Horizons Car & Truck Rentals Ltd. o/a Discount Car & Truck Rentals v. Registrar of Motor Vehicles, 2015 CanLII 9431

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-01-29

FILE:

9276/MVIA

CASE NAME:

9276 v. Registrar of Motor Vehicles

Motion for an Order to Extend the 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

New Horizons Car & Truck Rentals Ltd. o/a Discount Car & Truck Rentals

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION ON MOTION

ADJUDICATOR:

D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Appellant:

Robert Byers, Agent

For the Respondent:

Sanjay Kapur, Agent

Heard by teleconference:

January 6, 2015

REASONS FOR DECISION ON MOTION

1A hearing was held on January 6, 2015, by teleconference to consider the appeal of New Horizons Car & Truck Rentals Ltd. o/a Discount Car & Truck Rentals (the “Appellant”) pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”). As a preliminary matter, the Appellant brings a motion to be permitted to file its appeal outside the 15 day appeal period set out in the Act. Since a motion for late filing involves a preliminary review of the merits of the case, rather than bifurcate the process, the Tribunal heard the motion and the appeal on the merits concurrently.

2The Tribunal dismisses the motion for late filing. As a result, the Appellant’s motor vehicle will remain detained at the impound facility until the conclusion of the 180 day impoundment period.

BACKGROUND

3A 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: 2014 RAM RTR (the “vehicle”)

Date of Appeal: December 8, 2014

PRELIMINARY ISSUES

4The vehicle was impounded on September 29, 2014. The time for filing an appeal to this Tribunal expired on October 14, 2014. The Appellant filed its appeal on December 8, 2014. It brings a motion to extend the time for filing its appeal pursuant to the provisions of section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, which states:

7. 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.

5The Appellant’s Agent is the repair manager for the Appellant. He provided background facts in support of the motion. The Appellant is a corporation engaged in renting vehicles to the public. It has a contract with Aviva Insurance to provide vehicles to insureds who have lost the use of their car as a result of an accident. In the current instance, Aviva Insurance contacted the Appellant’s Insurance Call Centre (“ICC”) and asked for a car to be provided to one of its policy holders.

Since the transaction is arranged by the insurance company, the ICC prepopulates a rental agreement with the insured’s name, address and licence details. The insured then picks up the vehicle at one of the Appellant’s offices after showing proof of insurance and an unexpired driver’s licence that corresponds with the prepopulated form.

6In this instance, the insured picked up the vehicle after showing the required documentation. Sometime later he was stopped by the police and it was determined that his licence to drive was under suspension pursuant to the Criminal Code for driving with more than 80 mgs of alcohol in his blood. The police impounded the vehicle and a Notice of Impoundment was served on the Appellant.

7This is not the first time a vehicle owned by the Appellant has been impounded under the Act’s provisions. The earlier instances involved situations where the driver at the time of impoundment was someone other than the renter of the vehicle. In the case of car rental companies, there are regulations providing for the return of the vehicle to the car rental company prior to the expiry of the impound period, provided always that the rental company pays the costs of the towing and the impoundment fees up to the date of the release of the vehicle.

8After receiving the Notice of Impoundment, the Appellant contacted the Registrar and forwarded a copy of the rental agreement. The Registrar noted that the driver and the renter were one and the same. By October 9, 2014, at the latest, still within the appeal period, the Registrar informed the Appellant that he was not prepared to release the vehicle in this case. Thereafter, the Appellant took no further steps to commence an appeal until December 8, 2014. The reason was that its internal procedures were deficient in bringing the Notice of Impoundment to the attention of the proper person within the company, a situation that has now been corrected by administrative policy changes.

9In order to succeed in its motion, the Appellant must demonstrate that there are reasonable grounds to grant the extension of time. In considering an extension of time, there already exists a body of case law setting out a test for considering relief from the late filing of appeals. The test was reaffirmed by the Divisional Court recently in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492. Mr. Manuel had appealed a decision of this Tribunal not to extend the time for filing an appeal from a decision of the Registrar to revoke his registration. He was three days late in filing his appeal. The test applied by the Tribunal and endorsed by the Court had four elements:

14The LAT cited the relevant sections of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, and Frey v. MacDonald, stating that it would consider the following factors as constituting “reasonable grounds” for assessing this request for an extension of time in which to file an appeal:

1. The existence of a bona fide intention to appeal [within the appeal period];

2. The length of the delay;

3. Prejudice to the other party; and,

4. The merits of the appeal.

10While the Court endorsed the four part test, it was at pains to point out that the test is simply a guide to assist in determining the justice of the case and should not be slavishly followed as a sort of flow chart. A weaker fact situation under one head may be balanced by stronger facts under one or more of the remaining factors.

11It is impossible to conclude that the Appellant had any intention to appeal within the appeal period. It was aware approximately five days before the expiry of the appeal period that the Registrar considered this case to be different from the other impoundment cases and would not release the vehicle. Thereafter, it took no action for approximately two months. Internal administrative inefficiencies cannot overcome the clear knowledge available to the Appellant that the vehicle was impounded and that the Registrar would not release the vehicle unless the Appellant were to be successful on an appeal to this Tribunal.

12The delay in commencing the appeal, approximately 55 days after the expiry of the appeal period, constitutes almost one third of the whole impoundment. It is significant both in its own right and as a source of potential prejudice to the Registrar. If the Appellant were to be successful, the Registrar would be liable for extensive towing and storage fees of several thousand dollars. In the view of the Tribunal, this prejudice outweighs any prejudice suffered by the Appellant arising out of the loss of the vehicle for an extensive period.

13The fourth part of the test concerns the merits of the Appellant’s appeal. The Appellant argues that by asking for and confirming that the suspended driver had an unexpired driver’s licence in his possession, it had exercised due diligence in determining that the licence was not then under suspension. The Registrar argues that it is insufficient to simply see an unexpired licence; the Appellant should have called the Registrar’s hotline to determine if the licence was, in fact, valid. The Tribunal does not need to resolve whether the Appellant would have been successful in its case. It must simply determine that there are reasonable grounds for the appeal. The Tribunal notes that there is no regulatory requirement to look behind a driver’s licence that is valid on its face. The Tribunal accepts, without determining the issue, that there were facts which would support a defence of due diligence on the part of the Appellant.

14Considering 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.

15Accordingly, its motion for an extension of time is denied and the vehicle will remain at the impoundment facility until the expiry of the impoundment period.