Licence Appeal Tribunal / Tribunal d'appel en matière de permis
FILE: 10011/MVIA
CASE NAME: 10011 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.
10011 Appellant
-and-
Registrar of Motor Vehicles Respondent
MOTION DECISION
ADJUDICATOR: Geneviève Blais, Member
APPEARANCES:
For the Appellant: MC, the Appellant’s daughter, as Agent
For the Respondent: Steve Grootenboer, Agent
Heard by teleconference: February 11, 2016
REASONS FOR DECISION
A hearing was held on February 11, 2016, 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”). The Appellant was represented by his daughter, Ms. C.
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: 2005 CHEV, L55 (the “vehicle”) Date of Appeal: January 26, 2016
THE MOTION
The Appellant’s vehicle was impounded on December 16, 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 December 31, 2015. The Appellant filed his appeal on January 26, 2016. He brings a motion to extend the time for filing his 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 daughter, MC represented the Appellant, who is elderly and has difficulty speaking English and relies on her for many matters. The suspended driver is her 40 year old brother. Her brother and his 11 year old daughter reside with the Appellant.
At the time of the impoundment, MC was travelling out of the country. When she returned two weeks later, she learned that her parents were very upset as the suspended driver, her brother, would not allow them to make telephone calls or answer the telephone. She believes that her brother was scared and hiding from the police.
MC stated that her husband went to the Appellant’s home and read the Notice of Impoundment. The Notice of Motion to extend time states: “Also when finally my son in law came over . . . to help me with the appeal he had call the Licence Appeal Tribunal and he was told that it was too late to make an appeal and that the time left to get the car released is soon and that it would be $17 a day. I was never aware that it can get to $55 a day.” MC stated that she did not look further into the matter and took no action to read the Notice of Impoundment herself and verify the information related to her by her husband.
Approximately five days before the 45-day impoundment period expired, MC contacted the impoundment facility to inquire about the impound costs. MC stated that she was shocked at the considerable amount of money he would have to pay for the release of the vehicle. She then decided to contact the Tribunal and was provided the information to file the appeal. She felt sorry for her parents who were paying the price for their son’s actions. In the written reasons for appeal, the Appellant indicated that he was appealing on the ground that his son had stolen the vehicle keys while he was asleep and taken the vehicle without his consent.
MC acknowledged that on January 30, 2016, as the impoundment period had expired, the Appellant 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 or his agent had a responsibility to take the necessary steps to file the appeal in a timely manner, if indeed they intended to do so. He submitted that the Appellant did not act in good faith and was not mindful of deadlines; and that the Appellant had no intention to appeal, and he formed an intention and grounds for appeal only when informed of the impoundment costs.
The Tribunal notes that the Appellant’s Notice of Appeal was filed 25 days late and 41 days after the vehicle was impounded. In the Notice of Motion, it states, as told to MC by her father, that when an attempt was made by MC’s husband to contact the Tribunal to file an appeal within the prescribed time period, he was advised it was too late to do so. Yet three weeks later and well beyond the time period in which to file the appeal, MC was provided with the appropriate procedures and forms to file the appeal by Tribunal staff. The Tribunal accepts the direct evidence of MC on this issue. In her evidence, MC acknowledged that she initially took no further steps to pursue the appeal and the sense of urgency to file the appeal occurred when the impound fees were known. The Tribunal, on the evidence, concludes that there was not 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. A 25-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 Notice of Appeal indicate that the Appellant is appealing on the grounds that the vehicle was stolen at the time it was being detained.
The owner may appeal the impoundment on only four specific grounds set out in subsection 50.2(3):
(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.
The meaning of “stolen” is not defined in The Highway Traffic Act.
The Shorter Oxford English Dictionary, 3rd ed., provides the definition of “stolen” as follows:
Stolen: 1. Obtained by theft. 2. Accomplished or enjoyed by stealth; secret. 3. Of time: obtained by contrivance
Theft: 1. The action of a thief; the felonious taking away of the personal goods of another; larceny 2. That which is or has been stolen; the proceeds of thieving.
The Criminal Code of Canada (the "Code") R.S.C. 1985, Chap. C-46, also provides some guidance in sections 1 and 322(1) about the meaning of “stolen,” although this is in the criminal law context.
The Divisional Court held in Marshall v Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745 that the Tribunal should not limit the meaning of “stolen” only to an intention to take the vehicle permanently. The Court held that the term “stolen” could also apply to an intention to take the vehicle temporarily. The Court reviewed the circumstances of that case and stated:
“In our opinion a vehicle is ‘stolen’ in this context when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.”
In her evidence the Appellant’s Agent stated that her parents are somewhat intimidated by their son and have little control over his actions. In the documents disclosed for the hearing, the Registrar’s Agent filed a letter from the police officer involved in the vehicle impoundment incident. The police officer stated that when he spoke to the Appellant at the time of the impoundment, the Appellant “did not give any indication whatsoever” that his son had taken the vehicle without his consent; nor was any information provided to suspect that the vehicle was stolen. The Tribunal notes that the Appellant may be able to challenge this police evidence at a full hearing, or perhaps provide a good explanation. On the other hand, the Appellant has provided no more than a statement that the vehicle was taken without consent.
It is true that the parties do not need to submit full evidence and arguments on the merits of the case given that the Tribunal does not need to resolve whether the Appellant would or would not be successful. As noted above, the Tribunal does not have enough information to determine if the defence of stolen is supportable, but even if it is assumed that it is, it does not overcome the other factors in the four-part test, especially the lengthy delay in filing this appeal and the significant prejudice to the Registrar resulting from an appeal after the 45 day impoundment period, with its attendant costs, has ended.
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 absence of a bona fide intention to appeal within the appeal period, 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 at this late stage, the Tribunal finds that the Appellant has failed to establish reasonable grounds for an extension of time to file his appeal.
Accordingly, the motion for an extension of time is denied.
LICENCE APPEAL TRIBUNAL
Geneviève Blais, Member
RELEASED: February 18, 2016