Date: 2018-11-06

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:

C.M.

Appellant

And

Registrar of Motor Vehicles

Respondent

ORDER ON MOTION

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: C.M., Self-represented

For the Respondent: Stephen Grootenboer, Agent

Heard by Teleconference: October 10, 2018

ORDER ON MOTION

A. Overview

1A hearing was held on October 10, 2018 by teleconference to consider the appellant’s motion for an Order granting an extension of time for the appellant to file an appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) from the impoundment of her vehicle on July 22, 2018 by the Registrar of Motor Vehicles.

2The appellant submits that the time for her appeal should be extended because she did not submit her appeal within the 15-day appeal period because the driver of the vehicle at the time of impoundment (“driver”) initially said he would pay the impoundment fees but changed his mind. The grounds for the appeal are that the appellant, as owner of the motor vehicle, exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension, and that the impoundment is an exceptional hardship on the appellant.

B. issue

3The issue to be addressed is whether the Tribunal should extend the time for the appellant to file her appeal.

C. CONCLUSION

4I find that the appellant failed to establish reasonable grounds for an extension of the time to file her appeal. The appellant’s motion is dismissed.

D. LAW AND ANALYSIS

Should the Tribunal extend the time for the appellant to file her appeal?

5Section 9 of O. Reg. 631/98, entitled “Long-Term Vehicle Impoundment under Section 55.1 of the Act”, states that an appeal of an impoundment under s. 55.1 of the Act must be filed within 15 days of the impoundment.

6The appellant’s motion is to extend the time for filing her appeal. Pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G the Tribunal may 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.

7To succeed in her motion the appellant must show that there are reasonable grounds for the Tribunal to grant the extension of time. The Tribunal must consider the following as set out in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.) when deciding whether to grant an extension of time to file an appeal:

1. The existence of a bona fide (good faith) intention to appeal [within the appeal period];

2. The length of the delay;

3. Prejudice to the other party; and

4. The merits of the appeal.

8The Divisional Court determined that the factors to be considered are simply a guide to assist in determining the justice of the case and should not be slavishly followed.

9The appellant’s vehicle was impounded on July 22, 2018. The appellant’s Notice of Appeal and her Notice of Motion to extend the time for appeal were received by the Tribunal on August 27, 2018. The appellant testified that she received notice of the impoundment at the time it happened. She thought the impoundment was for seven days, not 45. When she contacted the police about obtaining release of her vehicle on July 28, 2018 the police told her she should appeal.

10The appellant testified that she did not file her appeal within the legislated timeframe because the driver told her at the time of impoundment that he would pay the impoundment fees but later changed his mind. When she tried to contact him about August 19 or 20, 2018, he would not answer her phone calls and she could not find him. She thought he was not going to pay as he initially said. The appellant testified that she did not trust him after her vehicle was impounded and does not know why she believed him when he said he would pay the impoundment fees. She said she let him drive her vehicle on July 22, 2018 because she knew him as a mechanic from her work. He had worked on vehicles, but she does not know if he is a licenced mechanic. She assumed he had a driver’s licence, but did not ask him or check with the Ministry.

11The impoundment period expired September 5, 2018 and the vehicle was released to the appellant a few days after that. When the vehicle was impounded, the appellant did not need the vehicle to go to work as she is on maternity leave. Her father drove her and her baby to their medical appointments and she used public transit. She said that she had to get a loan to pay the impound fees and this is a financial hardship on her because she doesn’t know how she can repay the loan.

12The appellant’s grounds for appeal are that as owner of the motor vehicle she exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension and that the impoundment is an exceptional hardship on the appellant.

13The respondent submits that the appellant has not demonstrated a bona fide intention to appeal within the statutory deadline. I agree. The appellant did not demonstrate a bona fide (or good faith) intention to appeal because she did not file her appeal within the 15 day appeal period even though she received notice of the impoundment on July 22, and the police suggested to her that she appeal on July 28, 2018. The time for appeal expired on August 7, 2018. The appellant filed her appeal on August 27, 2018, some 20 days late. Even after she concluded that the driver was not going to pay the fees about August 20, the appellant still did not file her appeal until a week later. There has been substantial delay. The appeal was filed 36 days after the impoundment.

14The 45 day impoundment period expired on September 5, 2018. The Registrar argues that prejudice would be suffered by the Registrar if the motion was granted because if the appeal goes forward and is successful, the Registrar would be required to pay greater impoundment fees than had the appeal had been filed within the legislative time. I agree with this submission.

15The Registrar also submits that the appeal has no reasonable chance of success even if the time to appeal is extended. I agree. At the hearing, the burden is on the appellant to prove that as owner of the motor vehicle she exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension or alternatively exceptional hardship has resulted from the impoundment. The merits of the appeal would not appear to be strong. With respect to due diligence, appellant must show that she took all reasonable steps to determine that the driver’s licence was not under suspension at the time of impoundment. The appellant admitted in her testimony that she allowed him to drive her vehicle on July 22, 2018 because she knew him as a mechanic from her work but she does not know for sure that he is a licenced mechanic. She did not ask him if he had a driver’s licence or check with the Ministry. She assumed he had a driver’s licence. The burden of proof on the appellant that she exercised due diligence is unlikely to be satisfied by proof that she assumed he had a valid driver’s licence but took no steps to find out. I find that the exceptional hardship argument is also not likely to succeed at a hearing because the appellant had alternatives to the impounded vehicle. During the impoundment period she was driven to medical appointments by her father, took public transit and did not require the vehicle to go to work as she was on maternity leave. If she had an alternative to the impounded vehicle, then her appeal would fail as the adjudicator need not consider any other factors.

16The burden is on the appellant to demonstrate reasonable grounds to grant an extension of time. I find that the appellant has not demonstrated that she had a bona fide (or good faith) intention to appeal within the time for appeal. I find that the delay is significant. There would be prejudice to the respondent resulting from the delay and the merits of the appeal are relatively weak. Therefore I find that appellant failed to establish reasonable grounds for an extension of the time to file her appeal. The appellant’s motion is dismissed.

ORDER

17The appellant’s motion is dismissed.