Appellant v. Registrar of Motor Vehicles, 2017 CanLII 23904

LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017-03-24

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act for driving while suspended.

Between:

Appellant

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Geneviève Blais, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Steve Grootenboer, Agent

Place and date of hearing:

By teleconference March 21, 2017

REASONS FOR DECISION AND ORDER

OVERVIEW

1. A hearing was held on March 21, 2017, by teleconference, to consider the appeal of the Appellant pursuant to section 50.2 of the Highway Traffic Act (the "HTA" or the "Act").
2. As a preliminary matter, the Appellant brought a motion to be permitted to file her appeal outside the 15-day appeal period set out in the Act. I first heard the motion for the extension of time, which I granted, then continued with hearing the parties' evidence with respect to the appeal.
3. The Appellant's vehicle was impounded on February 11, 2017 when her son drove the vehicle while his licence was under suspension. The time for filing an appeal to this Tribunal expired on Sunday February 26, 2017. The Appellant filed her appeal on March 1, 2017. The appeal was filed three days late.
4. Based on the evidence, I concluded that the justice of the case would not be served by depriving the Appellant of her right to appeal. While the three day delay in this appeal could potentially cost the Ministry some extra days of impoundment fees, that is not enough prejudice when weighed against the Appellant's loss of her right to appeal this impoundment if the time for extending her appeal is not granted. Therefore, the motion for the extension of time was granted.
5. The Appellant appealed the impoundment to the Tribunal on the basis that the impoundment will result in exceptional hardship. She resides 45 kms away from her work location and she submits that without her car she has to arrange for rides from family and friends. This arrangement has been very inconvenient and she is asking the Tribunal to order the Registrar to release her vehicle.
6. I am required to determine whether the impoundment will result in exceptional hardship, considering the relevant provisions of the Highway Traffic Act, R.S.O. 1990, c. H.8 and regulations. While the impoundment of the vehicle has caused inconvenience for the Appellant, the Appellant has not demonstrated that there is no alternative to the impounded vehicle, as she has successfully obtained rides which have allowed her to maintain her employment and attend to her daily living since the impoundment. Accordingly, I confirm the impoundment.

MOTION TO EXTEND TIME

Issue:

1. Has the Appellant established reasonable grounds to support an extension of time?

EVIDENCE:

1. The Appellant provided the following explanation in support of her motion for the extension of time to file her appeal. She stated that on the day of the impoundment she was provided with the Notice of Motor Vehicle Impoundment by a police officer who attended her house and he mentioned she could appeal. However he did not provide any further detail or direction on the appeal process. The Appellant stated that she had no previous experience with filing an appeal and had no knowledge of the process. She did not think of reading the back of the Notice to Registrar document. She candidly stated she did not know what to do. It was only when her older son assisted her a few weeks later in obtaining and completing the forms from the Tribunal's website did she file the appeal which was three days beyond the time limit for filing. The Notice of Appeal was received by the Tribunal on March 1, 2017.
2. Mr. Grootenboer, the Agent for the Registrar, stated that the Appellant did not act in good faith and she failed to take steps to inform herself about the appeal process to respect the time limits to file the appeal. The delay constitutes a significant prejudice to the Ministry since the Ministry must pay the ongoing impoundment storage fees if the Appellant's appeal is granted. These factors must be considered in the granting an extension of time for late filing of the appeal.

ANALYSIS:

1. The time for filing an appeal to this Tribunal expired on February 26, 2017. The Appellant filed her appeal on March 1, 2017. In order to succeed in her motion the Appellant must show that there are reasonable grounds for the Tribunal to grant the extension of time. Section 7 of the Licence Appeal Tribunal Act, 1999, gives the Tribunal the power to extend the time to file an appeal if the Tribunal is satisfied that there are reasonable grounds for the extension and for granting relief.
2. 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 the assessing a request for the extension of time, as follows:

• That there was a bona fide intention to appeal within the time limit;
• The length of the delay; In considering
• That there is not prejudice to the Registrar; and
• The merits of the appeal

1. The four factors of the test is simply a guide to assist in determining the justice of the case and it does not have to be followed rigidly. A weaker fact situation under one factor may be balanced by stronger facts under one or more of the remaining factors.
2. In the facts of this case, after considering the evidence and submissions regarding the motion to extend the time for appeal, I concluded that the Appellant should be allowed to file her late appeal. In reaching this conclusion, I accepted the Appellant's testimony that when she became aware of how to appeal, she filed her appeal. She was forthright in her testimony and provided a satisfactory explanation of being confused about the appeal process. Furthermore, while the three day delay in this appeal could potentially cost the Ministry some extra days of impoundment storage fees if the Appellant were to succeed in her appeal, this is not enough prejudice when weighed against the Appellant's loss of her right to appeal this impoundment if the time for extending her appeal is not granted.
3. In these circumstances, the Appellant should be permitted an opportunity to present her evidence and submissions about whether she has met the exceptional hardship test for setting aside this impoundment. As such, the motion for the extension of time is allowed.

ISSUE FOR THE APPEAL OF THE IMPOUNDMENT

15. Will the impoundment result in exceptional hardship?

EVIDENCE:

1. The owner of the impounded vehicle is the Appellant. The motor vehicle, a 2015, RAM, RTR vehicle was impounded on February 11, 2017. The Appellant filed an appeal in this case on March 1, 2017.
2. The Appellant stated that on the morning of the impoundment, her 22 year old son, the suspended driver, who was living with her, told her he was taking the vehicle to drive to do an errand. She stated it was early in the morning and she was not fully awake when her son casually told her he was using the vehicle. The Appellant acknowledged the vehicle keys were on a key rack near the front door and easily accessible. Although she knew her son did not have a valid licence, she had not been concerned that he would take the vehicle and took no measures to ensure the keys were not available to her son.
3. The Appellant stated that she requires the vehicle to get to work. She resides in a remote northern community and her workplace location is 45 kms away from her residence. She stated she works full time, five days a week. Since the impoundment of the vehicle, she has relied on rides from her niece and co-workers. She candidly admitted that this arrangement has worked well for her. Although she has missed work, the reasons were not related to the loss of the vehicle. Due to medical issues she was off work for two weeks and she missed another five days work due to poor weather conditions and family commitments. The Appellant stated that relying on others for rides has been quite inconvenient; however she conceded that she has managed through the period of the vehicle impoundment. She stated she is not at risk of losing her employment. In her testimony, the Appellant indicated no financial concerns, other than to state that as she was off work for a few weeks because of medical issues, her monthly income was reduced.
4. Mr. Grootenboer provided in documentary evidence a copy of the Ministry of Transportation records indicating that the impounded motor vehicle is registered in the name of the Appellant, as owner. A copy of the notice prepared by the officer who detained the impounded motor vehicle indicated that the driver at the time of the impoundment had been convicted of Impaired Driving under the Criminal Code of Canada and his licence was suspended until March 29, 2017. The Registrar's evidence indicates that the suspended driver has never been licensed.

LAW

1. Under the HTA, where a police officer is satisfied that a person was driving while suspended under certain provisions of the HTA, the officer is required to detain and impound the vehicle. Section 55.1 of the HTA sets out the scope of the authority, the impound period and other requirements and obligations. The impound period is 45 days if there has been no previous impoundment in the last two years.
2. Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal and on which the Tribunal may order the Registrar to release the motor vehicle. The Appellant appeals on the basis of paragraphs (d) of subsection 50.2(3), which states:

50.2(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.

(d) that the impoundment will result in exceptional hardship.

1. Subsection 50.2(4) states that an owner may not rely on the ground of exceptional hardship if a vehicle owned by him or her has previously been impounded.
2. Section 10 of O. Reg. 631/98 (the "Regulation") sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement, as set out in s. 10(1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

...the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period

1. If the Appellant is able to establish that there is no alternative to the impounded vehicle, then the Tribunal shall consider, under s. 10(1), whether the impoundment will result in:

a. a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

b. a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily.

1. In limited circumstances described below, the Tribunal may also consider whether the impoundment will result in the following types of losses, listed in s. 10(2) of the Regulation:

• financial or economic loss to any person;
• loss of employment or employment opportunity to any person; or
• loss of education or training or of an educational or training opportunity to any person

1. The financial, employment and educational losses listed above may only be considered if all of the criteria listed in s. 10(3) of the Regulation are met:

i. no alternative to the impounded motor vehicle is available;

ii. the loss will be immediate, significant and lasting;

iii. the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and

iv. the impact of the loss,

I. will be upon a person other than the person whose driving while his or her driver's licence was under suspension resulted in the impoundment of the motor vehicle, and

II. will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d).

1. Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
2. Following a hearing, under s. 50.2(5) of the HTA, the Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.

ANALYSIS

1. In summary, the Appellant stated she requires her vehicle to drive to work.
2. Mr. Grootenboer indicated that the Appellant has alternatives to the impounded vehicle and there has been no loss of employment. Since the impoundment, she has found alternate means of transportation to attend work and provide for her daily needs. Exceptional hardship, as defined by the Regulation, has not been met.
3. The owner of the motor vehicle, the Appellant, must establish the ground of appeal based on a balance of probabilities.
4. In order to establish exceptional hardship under s. 50.2(3)(d) of the HTA, the Appellant must first establish that there is no alternative to the impounded vehicle, which requires that she consider every reasonable option that could eliminate or adequately mitigate any threat or loss, including using another vehicle and making arrangements to do without any motor vehicle during the impound period. If the Appellant is able to establish that there is no alternative, the Appellant must then show that the impoundment will result in either a threat to health or safety or an employment, financial or educational loss that meets the criteria set out in s. 10(3) of the Regulation. The Appellant submits that the impoundment has resulted in an inconvenience for her.
5. Since the Appellant's vehicle was impounded she has found other ways to get to work without having her vehicle. She acknowledged that, although somewhat inconvenient, these arrangements have worked out well. These alternatives have allowed her to continue her employment and attend to her personal daily needs. The Appellant was unable to prove she has no alternative to the impounded vehicle to pass the first hurdle for showing exceptional hardship under the Regulation.
6. The Tribunal accepts the Appellant's evidence that the impoundment has been inconvenient and affected the ease of getting to work. Nevertheless, there is an alternative to the impounded vehicle, and therefore the legal test for exceptional hardship under s. 50.2(3)(d) of the HTA has not been met. The Appellant's current arrangement is an alternative to the impounded vehicle within the meaning of s. 10 of the Regulation.
7. While the Tribunal understands that as a result of the impoundment, the Appellant has incurred some inconvenience, there is an alternative to the impounded vehicle. Therefore, the Tribunal is not able to consider any employment or financial loss under s. 10(2)(b) or (c). In any event, the Appellant has not established an employment or financial loss that meets the criteria of the Regulation, as there is no evidence that the Appellant is at risk of losing her employment as a result of the impoundment.
8. Accordingly, the Appellant has not established that the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER

1. For the reasons set out above, pursuant to subsection 50.2(5) of the HTA, the Tribunal confirms the impoundment of the Appellant's motor vehicle. The vehicle will remain at the impound facility for the remainder of the impoundment period.

LICENCE APPEAL TRIBUNAL

Geneviève Blais, Member

Released: March 24, 2017