F.M. v. Registrar of Motor Vehicles, 2018 CanLII 105352

Date: 2018-01-17

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:

F.M.

Appellant (Moving Party)

-and-

Registrar of Motor Vehicles

Respondent (Respondent on Motion)

DECISION AND ORDER ON MOTION

Panel: Ted Crljenica, Vice-Chair

Appearances:

For the Appellant: F.M.

Marc-Roger Gagnė, Paralegal

For the Respondent: Stella Velocci, Agent

Place and Date of Motion: Teleconference

January 5, 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 26, 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 December 14, 2017, three days 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.

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. THE FACTS:

9The appellant immigrated to Canada six years ago. She is fluent in French but her ability to communicate in English is limited. Had this been known to the Tribunal this motion could have been scheduled before a Tribunal member qualified to conduct hearings in French.

10I did not adjourn the motion to another date to be heard by a French speaking Tribunal member as it would add further delay to an appeal of an impoundment that expires five days after the day of the motion. The appellant’s legal representative translated on behalf of the appellant. My comprehension of French is sufficient to determine he accurately translated the questions put to the appellant and her answers to those questions.

11D.B., the driver of the appellant’s vehicle, and the appellant are in a relationship, the details of which were not clear from the evidence. The appellant allows D.B. to driver her vehicle.

12On May 28, 2017, six months prior to the impoundment in question, D.B. was driving the appellant’s vehicle and was stopped by the police. It appears that he was driving with at least 50 mg of alcohol in 100 ml of blood, in violation of section 48 of the Act. The vehicle was impounded for seven days and D.B. was issued a 90-day administrative licence suspension. This licence suspension was scheduled to expire on August 26, 2017. It also appears that this was D.B.’s second suspension under section 48 as a first suspension is for only three days.

13On July 5, 2017, D.B. was found guilty of impaired driving on May 28, 2017 and his driver’s licence was suspended for one year commencing on the date of conviction.

14According to the appellant, D.B.’s driver’s licence was mailed to him after the expiry of the 90-day period that commenced on May 28, 2017 (i.e.: after August 26, 2017). She understood this to mean that D.B. was again licensed to drive.

15The appellant works the night shift for a cleaning company in the Ottawa area. She is employed to clean commercial property. On November 26, 2017, the date of the current impoundment, she was sleeping when D.B. took the vehicle. She submits that she did not know that he had taken the vehicle.

16The appeal period expired on December 11, 2017. On that date she met with her current legal representative at 8:30 a.m. in regard to the impoundment. The appeal was filed by her legal representative on December 14, 2017. The legal representative submitted that as a recent immigrant to Canada, the appellant should not be expected to have the same knowledge of her legal rights that someone born here, or who has been here longer, would have.

17With her vehicle impounded, the appellant has missed some work because she could not get to the locations to which she was assigned. Her evidence was that she lost about $2,000 during the period of the impoundment. The locations at which she works are too far from her home to walk, especially so with the frigid temperatures Ottawa had been experiencing. She can take public transit to work but as it stops running before her shift ends, usually at 2:00 a.m., it is not available for the return trip home. Public transit begins running again at 5:00 a.m. The appellant does not have any coworkers who live near her who can drive her to or from work. She earns minimum wage and cannot afford the cost of a taxi, $20 to $25 each way. Her legal representative also submitted that with a minimum wage job the appellant cannot afford to pay the fees required to obtain the release of her vehicle from the impoundment facility.

18During questioning by the respondent’s agent the appellant acknowledged that she has not missed any medical appointments. On the occasions she has not been able to get to work her employer has been able to replace her and there is no evidence that she is at risk of losing her employment. Thus, it was submitted that the impoundment has not resulted in exceptional hardship, and as the impoundment expires five days after the hearing of the motion it is unlikely that the impoundment will result in exceptional hardship.

19The respondent’s agent also submitted that the evidence falls short of establishing that the appellant exercised due diligence in determining if D.B. had a valid driver’s licence. In regard to the appeal period, the respondent’s position is that the appellant has had experience with the seven-day impoundment in May 2017 and should have been aware of the appeal process.

E. DISCUSSION AND ANALYSIS:

20Looking at the first of the four factors to be considered, the appellant did not know about the 15-day appeal period until she obtained legal advice. Therefore, although the evidence falls short of establishing that she formed the intent to appeal within the 15-day appeal period, she did seek out legal advice during the appeal period to determine what remedies were available to her. She met with her legal representative at 8:30 a.m. on December 11, 2017, the 15^th day after the vehicle was detained. We do not know what transpired between the appellant and her legal representative, but the appeal was filed by her legal representative three days after that meeting. In my view, the appellant has satisfied this factor.

21As it was not disclosed in the evidence, if the appellant appealed the May 2017 seven-day impoundment, I am not prepared to attribute to her any knowledge of the appeal procedure for an impounded vehicle.

22On the second factor, the length of the delay is three days. This is not an excessive delay and supports the appellant’s request.

23The 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. On its face, this would amount to three more days than the respondent might otherwise have been required to pay. In actual fact, the delay will be longer as the time to schedule and hear this motion has delayed the hearing of the appeal on its merits. However, the appellant should not be penalized for seeking to exercise her right to seek an extension of time. Thus, if the appellant’s appeal is successful the respondent will be prejudiced to the extent that it will have to pay storage costs for an additional three days.

24The 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 two grounds were raised. The first was that she did not know that D.B. took the vehicle on the day in question and the second is that the impoundment has resulted in exceptional hardship. During the motion the appellant raised another issue, that being that she exercised due diligence in her efforts to determine that D.B.’s licence was not under suspension.

25In 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 the appellant exercised due diligence in attempting to determine that D.B.’s licence was not under suspension when he drove the vehicle. Having made this determination, it is not necessary for me to comment on the two grounds raised in the Notice of Appeal.

26Having 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.

F. ORDER ON MOTION

27On 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 time to appeal is extended to December 14, 2017.

c. The parties will proceed directly to hearing without first participating in a case conference.

d. The Tribunal shall schedule this appeal to be heard on an expedited basis.

G. PROCEDURAL MATTERS

28I 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 legal representation. 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 he will be relying on at the appeal hearing.

29The 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 exercised due diligence in attempting to determine that D.B.’s licence was not under suspension when he drove the vehicle;

c. Whether the appellant knew that D.B. took the appellant’s vehicle on the date of the impoundment, and if she did not, whether her lack of knowledge constitutes a legal basis to allow the appellant’s appeal.

30If either party requires additional documents for use in the appeal hearing and that party has reasonable grounds to believe that the document is in the possession of the opposing party, the party requesting the documents shall make its request to the opposing party by email no later than 4:30 p.m. on Friday, January 19, 2018.

31The appellant, F.M., 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 Monday, January 22, 2018.

32The 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 Monday, January 22, 2018.

33In addition to any documents the appellant delivers pursuant to paragraph 31, above, the appellant FM shall provide to the registrar and the Licence Appeal Tribunal a copy of D.B.’s driver’s licence that the appellant states was returned to D.B. sometime after August 26, 2017. A copy of this document shall be delivered by email no later than 4:30 p.m. on Monday, January 22, 2018.

34Any documents requested pursuant to paragraph 30, above, shall be delivered to the requesting party by email no later than 4:30 p.m. on Monday, January 22, 2018.

35The hearing shall take place on January 24, 2018, commencing at 9:30 a.m. at which time the parties are directed to call the following number:

36The Tribunal shall arrange for a French interpreter to attend the hearing.

37At the hearing, the appellant shall be prepared to present her evidence and submissions to the hearing adjudicator.

38At the hearing, the Registrar’s agent shall be prepared to present the Registrar’s evidence and submissions to the hearing adjudicator.

39After 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.

40The hearing adjudicator may amend the case management process set out in this Order, subject to the submissions from the parties, as deemed fit.

41Nothing in this Order affects any requirement under the Highway Traffic Act.

42The Licence Appeal Tribunal (LAT) Common Rules of Practice and Procedure (effective October 2, 2017), apply to this appeal except where varied by this Order.

43If 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.