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:
K.J.
Appellant
And
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Stephen Scharbach, Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis, Agent
Place and Date of Hearing: Teleconference
June 29, 2018
REASONS FOR DECISION AND ORDER:
Overview
1The appellant is the owner of a 2017 Dodge Journey. She states that on May 20, 2018, her partner, whose driver’s licence is suspended, took her vehicle while she was asleep. He was stopped by the police and once it was determined that his licence was suspended the appellant’s vehicle was impounded for 45 days.
2The appellant appeals the impoundment on the single ground that the impoundment will result in exceptional hardship.
3The deadline for filing the appeal was 15 days after the impoundment and the appellant filed her appeal two days late. Accordingly, she brought a motion to extend the time for filing her appeal.
4The parties requested that I consider the motion to extend and if an extension is granted that I proceed to hear the appeal on its merits. I agreed to that approach and thus the two issues raised in this appeal are:
(a) Should the 15-day time limit for filing an appeal be extended to allow the appellant to appeal the impoundment, and if so;
(b) Should the Registrar be ordered to release the appellant’s vehicle on the ground that the impoundment will result in exceptional hardship?
DECISION
5The 15-day time limit for filing this appeal shall be extended to allow the appellant to appeal the impoundment.
6On the facts presented, I conclude that the impoundment will not result in exceptional hardship to the appellant and the appeal is denied.
ISSUE # 1 - MOTION TO EXTEND TIME FOR APPEAL
7Section 50.2 of the Highway Traffic Act provides that the owner of a vehicle impounded under s.55.1 (as in this case) may appeal the impoundment to this Tribunal.
8Ontario Regulation 631/98 provides that such an appeal shall be commenced by filing a notice of appeal with the Tribunal within 15 days after the vehicle was detained.
9In this case the vehicle was detained on May 20, 2018 and the 15-day appeal period expired on June 4, 2018. The Notice of Appeal was filed with the Tribunal on June 6, 2018.
10Under s. 7 of the Licence Appeal Tribunal Act, the Tribunal may extend that appeal period if it is satisfied that there are “reasonable grounds” for doing so.
11The Tribunal has applied a test to determine whether “reasonable grounds” exist and that test has been endorsed by the Divisional Court1. The test involves a consideration of four elements:
(a) The existence of a genuine intention to appeal within the time period.
(b) The length of the delay
(c) Prejudice to the other party
(d) The merits of the appeal
12The Divisional Court stated in the Manuel case that the test is a guide to assist in determining the justice of the case and need not be rigidly followed. A weaker fact situation under one factor may be balanced by stronger facts under one or more of the other factors. The onus is on the appellant to establish the factual foundation for granting the extension.
13Taking those factors in consideration I conclude that justice in this case requires granting the appellant’s request for an extension.
(a) Genuine Intention to Appeal within the Time Period.
14The appellant demonstrated that she intended to appeal the impoundment within the 15-day period.
15She stated that she found out about the impoundment on Sunday, May 20, 2018. The following Monday was a statutory holiday. After the long weekend she got in touch with the police force that impounded the vehicle and she was directed to the court house in Orangeville to speak with a Justice of the Peace (“JP”). The JP did not think he had jurisdiction and advised her to go back and speak to the police.
16The appellant again contacted the police who advised her to go back to the courthouse and speak with the Crown’s office. She spoke with the Crown’s office who sent her to the legal aid office. A staff member in the legal aid office informed her of the correct appeal period on June 5 and she completed and filed the notice of appeal the next day.
17The Registrar’s agent pointed out that a notice of impoundment was mailed to the appellant by the Ministry of Transportation (“MTO”) by regular mail on May 23. That notice contained information about commencing an appeal to the Tribunal including reference to the 15-day deadline. However, the appellant’s address on the MTO system was not current and she did not receive that notice.
18I acknowledge that it was the appellant’s responsibility to make sure that her address with the MTO was correct. However, I am nevertheless convinced that the appellant had a genuine intention to commence an appeal within the time period.
(b) Length of Delay
19In this case the appeal was filed two days after the deadline, a period I do not consider excessive, especially in view of the fact that the appellant was taking active steps to find out how to appeal and filed her appeal the day after she got the correct information.
(c) Prejudice to the Registrar
20The Registrar does not appear to be prejudiced by the delay resulting from extending the appeal deadline by four days. There was no suggestion that information or witnesses are no longer available or that the extension hampered the Registrar’s ability to respond to the appeal.
(d) Merits of the Appeal
21The onus is on the appellant to establish that her appeal has some merit. Taking into account the particulars contained in the notice of appeal as well as the information provided by her during the motion, I conclude that her appeal is arguable and does not lack merit.
22The appellant’s appeal is based on exceptional hardship. She described how the impoundment impacted her financial status and her ability to properly care for her infant son. While her appeal may or may not be successful I cannot conclude that it has no merit.
Conclusion on the Motion
23In my view justice of the case requires granting the extension. The appellant’s vehicle has been impounded for 45 days due to the suspended driving of someone else. The impoundment will have an impact on the appellant and she has a significant interest in having the merits of her appeal considered. She intended to appeal the impoundment within the deadline but was delayed because of lack of information about the appeal process. That lack of information was caused in part because she failed to update MTO’s records as required but also because administration of justice officials were unable to effectively assist her.
24In all of the circumstances, the justice of the case requires that the appeal period be extended and the appeal be heard on its merits.
ISSUE # 2 – WILL THE IMPOUNDMENT RESULT IN EXCPETIONAL HARDSHIP?
25I have concluded that the impoundment will not result in exceptional hardship to the appellant. In order to find exceptional hardship, the appellant must demonstrate that there is no alternative to the impounded vehicle. On the facts of this case, alternatives to the impounded vehicle are available to the appellant.
(a) Appellant’s Circumstances
26The appellant states that she is the single mother of a 17-month-old infant. The driver of the vehicle at the time of the impoundment is the father of her child. The appellant and the father are no longer together and she receives no support or assistance from him.
27The appellant works full time days Monday to Friday while her son is in day-care. She walks the infant 10 minutes to daycare and then walks for 40 minutes to get to work. The infant should be picked up at 5 p.m. but without a vehicle it is sometimes difficult for the appellant to arrive on time.
28In order to get to work, pick up her son, get groceries or run other errands, the appellant sometimes walks, uses public transportation when available, and occasionally the appellant’s mother helps with rides. However, her mother’s availability is limited as she also works full time and at different locations. The appellant cannot afford to take taxis or UBERs on a regular basis.
29The appellant also stated that she is currently making payments on the impounded vehicle of $436/month. Once the impound period is over she can only recover her vehicle if she pays the towing, impound costs and taxes, estimated to be approximately $4,000. The appellant stated that she and her partner were about to move into a house together. They are no longer together and she lost her deposit of $1,800, leaving her particularly financially stressed at the moment and unable to pay the impound costs.
30The Registrar’s agent pointed out that there is a second vehicle registered in the appellant’s name that was plated as of April 2018, and, according to the MTO records, it is fit to drive. However, the appellant states that vehicle is located on the property of a friend of her ex-partner and, despite MTO records, the vehicle is not operable and is only suitable for scrap.
31In response to a question from the Registrar’s agent, the appellant stated she is in good health and neither she nor her son have missed any doctor’s appointments due to the impoundment.
32In summary, the appellant states that she is being punished for the driving while under suspension of her partner. She requests that I order the Registrar to release her impounded vehicle on the basis that she is suffering exceptional hardship.
(b) The Criteria to Determine Exceptional Hardship
33Subsection 50.2(3) of the HTA lists four grounds on which an owner may appeal an impoundment of their motor vehicle. The appellant appeals on the basis of paragraph (d) of subsection 50.2(3) – that the impoundment will result in exceptional hardship.
34Section 10 of Ontario Regulation 631/98 (the “Regulation”) sets out several factors that the Tribunal must consider, and others that the Tribunal may not consider, in determining whether exceptional hardship will result from an impoundment.
35Firstly, I am required to consider whether an alternative to the impounded vehicle is available. If no alternative is available, I am required to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle (s.10 (1)).
36In order to show that no alternative is available, the owner must demonstrate that every other option has been considered, including using another vehicle or making arrangements to do without the vehicle during the impound period.
37Secondly, I am prohibited from considering inconvenience to any person in determining whether exceptional hardship results from an impoundment (s. 10(2)).
38Thirdly, the regulation (s.10(3)) provides that l may only consider financial or economic loss as exceptional hardship if the owner demonstrates certain factors including that no available alterative to the impounded vehicle is available.
(c) Has Exceptional Hardship been Demonstrated?
39Taking those considerations into account, I conclude that realistic alternatives to the impounded vehicle are available to the appellant in this case.
40Since the impoundment, the appellant has been able to manage her employment and child care responsibilities without a vehicle through a mixture of walking, public transportation, occasional taxis/UBERs and assistance from her mother. I have no doubt that the impoundment has been stressful and difficult to manage, especially for a full-time employee and mother of a young infant.
41I consider those difficulties to be significantly inconvenient, however, they do not rise to the level of exceptional hardship. The appellant has been able to utilise alternatives to attend work, get her child to day-care and doctor’s appointments, and otherwise carry out the normal tasks of daily life.
42The appellant states that the impoundment will result in exceptional hardship because it will cause her a financial loss she is unable to afford, principally the cost of the impoundment itself, now estimated to be $4,000 at the end of the 45-day impound period.
43However, the regulation provides that I may only consider financial or economic loss if the appellant demonstrates that there is no available alternative to the impounded vehicle. As stated above, I have concluded that realistic alternatives to the impounded vehicle are available to the appellant.
SUMMARY
44On the motion to extend the appeal deadline, I conclude that the appeal period in this case shall be extended to allow the filing of the appellant’s notice of appeal.
45On the appeal itself, I conclude that the impoundment will not result in exceptional hardship because the appellant has not demonstrated that there is no alternative to the impounded vehicle.
ORDER
46For the reasons set out above, pursuant to subsection 50.2(5) of the HTA, I confirm 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
_______________________
Stephen Scharbach, Member
Released: July 11, 2018
Footnotes
- Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492