Tribunal File Number: 11122/MVIA
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 s. 55.1 of the Act.
Between:
M.B
Applicant (Moving Party)
And
Registrar of Motor Vehicles
Respondent (Respondent on Motion)
DECISION AND ORDER ON MOTION
Adjudicator: Sandeep Johal
Appearances:
For the Appellant: M.B.
For the Respondent: Sanjay Kapur
Place and Date of Motion: Teleconference January 19, 2018
REASONS FOR DECISION ON MOTION AND ORDER
A. OVERVIEW:
1This is a motion to extend the time to appeal a motor vehicle impoundment.
2The appellant’s vehicle was impounded on November 23, 2017 because it was being operated by a driver whose driver’s licence was under suspension as a result of a Criminal Code conviction. The appellant filed her appeal of the impoundment on November 28, 2017 however her payment by way of a pre-paid credit card was rejected. She provided the filing fee to the Tribunal on or about December 14, 2017, after the expiry of the 15-day appeal period.
3For the reasons that follow, the motion is allowed and this appeal shall be heard as soon as the Tribunal can schedule a hearing.
B. THE ISSUE TO BE DECIDED:
4The issue to be decided on this motion is whether the appellant has established reasonable grounds to support an extension of time.
C. THE LAW:
5Pursuant to section 9 of Ontario Regulation 631/98 issued under the Highway Traffic Act, R.S.O. 1990, c. H. 8, (“the Act”) an appeal of a long-term impoundment is required to be filed within 15 days after the day the vehicle was detained together with the fee established by the Tribunal.
6The Tribunal has jurisdiction to extend the time for filing of an appeal pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, which reads:
Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by 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.
7In Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492, the Divisional Court ruled that the overriding consideration on a request for an extension of time is whether the justice of the case requires that the extension be granted. The factors to be considered in making this determination are:
a. The existence of a bona fide intention to appeal within the appeal period;
b. The length of the delay;
c. Prejudice to the other party; and
d. The merits of the appeal.
8The appellant has the onus to establish that the justice of the case requires the granting of the extension, but he or she need not satisfy all four factors. Rather, the analysis requires a balancing of the conclusions reached when applying the facts of the case to the factors.
D. DISCUSSION AND ANALYSIS:
9Having assessed the evidence in the context of the applicable factors it is my determination that the justice of the case favours the granting of the extension.
10The appellant submits that her vehicle was taken by her boyfriend without her knowledge shortly after midnight on the day the vehicle was impounded. She submits she left the keys on her bedside night table where they always are.
11The appellant submits that her boyfriend took her vehicle to put gas into her vehicle as she had a doctor’s appointment later that morning. M.B.’s boyfriend was pulled over by police and it was discovered by police that his licence was suspended due to a criminal code violation and as a result M.B.’s vehicle was impounded for 45 days.
12The appellant submits that the impoundment has resulted in exceptional hardship as she has two small children and is currently pregnant. The impoundment of the vehicle has prevented her from attending doctor’s appointments for herself and for her children.
Did the appellant have a bona fide intention to appeal?
13Looking at the first of the four factors to be considered, the appellant knew of the appeal period and in fact she filed her appeal on November 28, 2017, well within the 15-day appeal period. There is a requirement to pay a non-refundable fee of $100 and the appellant attempted to make that payment by way of a pre-paid credit card.
14The appellant was unaware that her payment was not processed because pre-paid credit cards were not an acceptable form of payment. The appellant became aware of this when she called the Tribunal approximately “one to two weeks” later and was advised that her payment was not processed and her Notice of Appeal was not complete. She immediately obtained a money order and mailed it out to the Tribunal. Once the payment was processed, the 15 days appeal period had expired.
15I find the appellant had a bona fide intention to appeal the matter within the 15 day appeal period. The late payment of the fee was completely out of her control. She rectified the payment issue immediately upon learning that her pre-paid credit card was not an acceptable mode of payment, and therefore, it is my finding that she established that she formed the intent to appeal within the 15-day appeal period and has satisfied this factor.
The length of the delay
16On the second factor, the length of the delay, it is my finding that any delay caused in the appeal was not as a result or for a reason that could be attributed to the appellant. As soon as she found out her payment was not accepted, she mailed a money order to the Tribunal the next day. This supports the appellant’s request.
Prejudice to the Registrar
17The third test is prejudice to the opposing party. If the appellant is successful on the merits of her appeal, the respondent would be responsible for the fees payable for towing and storage. The delay will be longer as the time to schedule and hear this motion has delayed the hearing of the appeal on its merits, and if the appellant’s appeal is successful the respondent will be prejudiced to the extent that it will have to pay storage costs for the additional days. However, the appellant should not be penalized for seeking to exercise her right to seek an extension of time.
Merits of the appeal
18The final factor is a consideration of the merits of the appeal. This does not require me to make a determinative ruling on the merits, but only to assess whether the appellant has a reasonable chance of success. In her Notice of Appeal only one ground was raised. That the impoundment will result in exceptional hardship. During the motion the appellant raised a second ground of appeal, that being that her vehicle was stolen.
19In my view the appellant has a reasonable chance of succeeding on the appeal. On the facts presented on the motion it is possible for the Tribunal to determine that there is exceptional hardship and that her vehicle was stolen
20Having assessed the submissions of the parties in the context of the applicable factors it is my determination that the justice of the case favours the granting of the extension.
E. ORDER ON MOTION
21On the appellant’s motion to extend the time to appeal, the Tribunal Orders:
a. The appellant’s request for an extension of time to file her appeal is granted.
b. The parties, on consent, will proceed directly to hearing without first participating in a case conference.
c. The Tribunal shall schedule this appeal to be heard on an expedited basis.
F. PROCEDURAL MATTERS
22I am ordering that this appeal proceed directly to hearing without first having a case conference. I am dispensing with the case conference due to the delay resulting from the scheduling and hearing of this motion. I believe that the parties will not be prejudiced by proceeding directly to hearing as they both have consented to have this appeal heard as soon as possible. Further, the information exchanged between the parties during the motion includes the information that would be exchanged in a case conference. It also appears that the respondent has served on the appellant and the Tribunal all of the documents on which she will be relying on at the appeal hearing.
23The issues to be determined at the hearing are:
a. Whether the impoundment will result in exceptional hardship as defined by the Highway Traffic Act and the Regulations;
b. Whether the appellant’s vehicle was stolen at the time it was impounded;
24The appellant, M.B., shall provide the respondent and the Licence Appeal Tribunal with copies of any additional documents on which she intends to rely at the hearing to be delivered by email no later than 4:30 p.m. on Tuesday, January 23, 2018.
25The respondent, the Registrar of Motor Vehicles, shall provide the appellant and the Licence Appeal Tribunal with copies of any additional documents on which he intends to rely at the hearing, to be delivered by email no later than 4:30 p.m. on Wednesday, January 24, 2018.
26The hearing shall take place on January 26, 2018, commencing at 1:30 p.m. at which time the parties are directed to call the following number:
27At the hearing, the appellant shall be prepared to present her evidence and submissions to the hearing adjudicator.
28At the hearing, the Registrar’s agent shall be prepared to present the Registrar’s evidence and submissions to the hearing adjudicator.
29After hearing the evidence and submissions, the hearing adjudicator will assess the evidence and submissions and make a determination on the issue raised in the appeal.
30The hearing adjudicator may amend the case management process set out in this Order, subject to the submissions from the parties, as deemed fit.
31Nothing in this Order affects any requirement under the Highway Traffic Act.
32The Licence Appeal Tribunal (LAT) Common Rules of Practice and Procedure (effective October 2, 2017), apply to this appeal except where varied by this Order.
33If the parties reach an agreement on the issues in dispute prior to the scheduled hearing date, and/or decide to withdraw their appeal, they shall immediately advise the Tribunal. They shall serve the respondent and file with the Tribunal a copy of the Notice of Withdrawal. The Tribunal will thereafter cancel the hearing. The Tribunal’s Notice of Withdrawal is available at www.lat.gov.on.ca.
LICENCE APPEAL TRIBUNAL
Sandeep Johal, Adjudicator
RELEASED: January 25, 2018