LICENCE APPEAL TRIBUNAL
Safety, Licensing Appeals and Standards Tribunals Ontario
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: Luisa Ritacca, Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Steve Grootenboer, Agent
Place and date of hearing:
By teleconference: May 12, 2017
REASONS FOR DECISION AND ORDER
OVERVIEW:
A hearing was held on May 12, 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”) from an impoundment of her motor vehicle.
The Appellant’s motor vehicle (2007 Ford, FX5) was impounded on March 21, 2017 when her fiancé drove the vehicle while his licence was under suspension. The Tribunal received the Appellant’s Notice of Appeal on April 25, 2017.
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 considered both the Appellant’s motion for extension of time and her appeal at the same time. I reserved my decision on both the preliminary motion and the appeal.
Based on the evidence, which I summarize below, I have concluded that the Appellant has failed to establish reasonable grounds for an extension of time to file her appeal. As such, I have not gone on to consider the appeal.
MOTION TO EXTEND TIME:
Issue:
- Has the Appellant established reasonable grounds to support an extension of time?
Position of the Parties:
(i) The Appellant
In support of her motion for an extension of time, the Appellant submitted that she was not aware of her right to appeal the impoundment until a few days before she did so at the end of April 2017. The Appellant explained that at the time of the impoundment, she was in the vehicle with her fiancé and their two children and that she was in medical distress due to pre-term labour contractions. She submitted that given her medical distress and the fact that her young children were in the car, she did not pay much attention to the Notice to Registrar / Notice of Suspension and Impoundment which was handed to her by the police officer on scene (the “Notice”). She stated that she simply handed the document over to her fiancé and that she did not look at it again until several weeks later. She believed that she had no right of appeal and that she should focus instead on raising the money to pay for the impoundment costs at the end of the 45-day period.
When asked about the notice by the Registrar’s Agent, the Appellant acknowledged that she read the front of the Notice, but did not think to look at the back, which sets out her appeal rights. She also acknowledged that she did not ask her fiancé to review the Notice more closely.
Both in support of the motion and the appeal, the Appellant explained that at the time of the impoundment, she was suffering from pre-term labour contractions and had just days before been released from hospital. She was on instruction from her midwife to stay on bed rest as much as possible and as a result, the Appellant stated that she was not focused on the impoundment or getting her vehicle back in any serious manner.
The Appellant confirmed that the vehicle is now out of impoundment. The vehicle was available to be released as of May 5, 2017. The Appellant indicated that she borrowed money from her fiancé’s mother to pay for the vehicle’s release.
Finally, while the Appellant acknowledged that she is once again free to use her vehicle, she explained that given her financial circumstances, she would likely have to sell the vehicle in order to pay her fiancé’s mother back and to pay her next month’s rent.
(ii) The Registrar
The Registrar argued that significant prejudice would be suffered by the Registrar if the motion for the extension of time was granted. The vehicle was impounded for the full 45-days. If the Appellant were allowed to proceed with her appeal and succeed on the appeal, the Registrar would be required to pay the full impoundment fees, some of which could have in theory been avoided had the Appellant filed her appeal on time.
Further, the Registrar submitted that the Appellant has failed to demonstrate any reasonable grounds for the Tribunal to grant the extension of time sought. The Appellant had notice of her right to appeal as at March 21, 2017. She took no steps to inform herself of her rights of appeal and she took no steps to ask her fiancé to do so. While the Registrar recognized that the Appellant had ongoing health issues during the relevant time period, the Registrar argued that the Appellant’s health issues should not have prevented her from taking proper steps to inform herself as to her rights following the impoundment. It would not have taken the Appellant much effort to read through the documents she received from the police officer the day the vehicle was impounded, nor would it have taken her considerable effort to fill out the requisite appeal forms in a timely fashion.
The Law:
Section 9 of Regulation 631/98 (Long-Term Vehicle Impoundment under Section 55.1 of the Act) provides that an appeal of an impoundment under s. 55.1 of the Act must be filed within 15 days of the impoundment.
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, it may, (a) extend the time for giving notice either before or after the expiration of the limitation of time so limited…
- 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.
- While the Court of Appeal in Frey v. MacDonald, [1989] O.J. No. 236 (C.A.), 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, I also recognize that 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.
Application of the Law to the Facts:
The Appellant’s vehicle was impounded on March 21, 2017. The time for filing an appeal expired on April 5, 2017. The Appellant’s Notice of Appeal was received by the Tribunal on April 25, 2017, some 20-days after the expiry of the appeal period.
The Appellant admitted that she did not consider appealing until she had discussions with the owner of the impound lot about how to get her vehicle returned. In the circumstances, there is no evidence before me that the Appellant had a bona fide intention to appeal. Further, the length of the delay is not insignificant. The Appellant waited until less than 10-days before the expiry of the impoundment period to appeal. There was no real reason provided for the delay other than the Appellant’s failure to review the documents she received at the time of the vehicle impoundment.
Further, I accept that the delay exposes the Registrar to potential prejudice should the appeal be allowed to proceed and be granted. Having waited so late to appeal, the full cost of the impoundment has been incurred. If the appeal were allowed, the Registrar would then be faced with repaying that full amount. Had the Appellant filed her appeal on time, the matter could have been dealt with more expeditiously.
Finally, while I have not reached a decision on the merits of the appeal, I would note that in order to succeed on the appeal, the Appellant would have had to establish that the impoundment would result in exceptional hardship. The vehicle has been returned and while I appreciate that the Appellant has had ongoing financial difficulties – in part due to the fact that she could not easily get to work during the impoundment period – I am not convinced that she could have satisfied the Tribunal that she has suffered exceptional hardship as a result of the impoundment.
ORDER
For the reasons set out above, the Tribunal finds that the Appellant has failed to establish reasonable grounds for an extension of time to file her appeal.
The Appellant’s motion is dismissed.
Released: May 30, 2017
LICENCE APPEAL TRIBUNAL
____________________________ Luisa Ritacca, Member