A.S. v. Registrar of Motor Vehicles, 2018 CanLII 127593

Licence Appeal Tribunal

Date: 2018-12-13

Tribunal File Number: 11720/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:

A.S. Appellant (Moving Party)

and

Registrar of Motor Vehicles Respondent (Respondent on Motion)

DECISION AND ORDER ON MOTION

Adjudicator: Jacqueline Castel

Appearances:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur

Place and Date of Motion: Teleconference December 12, 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 October 27, 2018 because it was being operated by a driver whose driver’s licence was under suspension as a result of a Criminal Code conviction. The Tribunal received the appellant’s Notice of Appeal on November 15, 2018. The deadline for filing the appeal was Sunday, November 11, 2018.

3For the reasons that follow, the motion is denied.

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:

Did the appellant have a bona fide intention to appeal?

9The appellant was initially told by the police officer who detained the vehicle that the vehicle would not be impounded for 45 days since she was not the suspended driver. This company which towed her vehicle told her that the vehicle would, in fact, be impounded for 45 days.

10The appellant called the police station to clarify on or about November 1, 2018, but it took a day or two to get a return call, at which time she was informed that the vehicle would be impounded for 45 days.

11The appellant subsequently had difficulty opening the documents emailed to her, by a representative from the Licence Appeal Tribunal, for the purpose of filing the appeal. When she was finally able to open the documents on the weekend of November 10/11, the Tribunal’s offices were closed. The Tribunal’s offices were also closed on Monday, November 12, 2018 due to Remembrance Day. The appellant stated that she emailed the Notice of Appeal to the Tribunal on November 13, 2018, but her VISA payment for the filing fee did not go through. She had to wait one additional day, until she was paid by per employer, to pay the filing fee.

12Based on the above, I find the appellant had a bona fide intention to appeal the matter within the 15 day appeal period.

The Length of the Delay

13On the second factor, the length of the delay, it is my finding that the delay of 4 days in filing the Notice of Appeal was not significant, particularly when it is considered that on two of the four days, the Tribunal’s offices were closed due to the weekend and Remembrance Day.

Prejudice to the Registrar

14The 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. In this case, the 45 days will elapse on December 13, 2018, the day after the hearing of this motion. The delay appears to have been triggered more by scheduling delays in arranging for the motion than by the late filing the Notice of Appeal. In these circumstances, I do not find that the Registrar would be prejudiced by the 4 day late filing of the Notice of Appeal.

Merits of the Appeal

15The 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 of appeal was raised: that the impoundment will result in exceptional hardship.

16In my view, based on the facts presented at the motion, the appellant does not have a reasonable chance of succeeding on the appeal.

17Specifically, the appellant indicated that she has been using her mother’s vehicle since her vehicle was impounded. The appellant also stated the impounded vehicle will have to be scrapped as it is too badly damaged to repair.

18Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that the Tribunal would have to consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement set out in 10(1) of the Regulation is that there is no alternative to the impounded vehicle. If the Tribunal finds there is no alternative to the impounded vehicle, it need not consider any other requirements.

19In this case, the appellant disclosed at the motion that she has an alternative to the impounded vehicle: borrowing a vehicle from her mother. Further, even if the respondent were ordered to pay the impoundment fees, the appellant would not have use of the vehicle since the vehicle will have to be scrapped.

20Having assessed the submissions of the parties in the context of the applicable factors it is my determination that the justice of the case does not warrant extending the time period for filing the motion, as it would not be possible for the Tribunal to make a finding of exceptional hardship based on the facts presented at the motion.

E. ORDER ON MOTION

21Accordingly, the motion is denied.