Tribunal File Number: 11193/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:
S.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: Stella Velocci, agent
Place and Date of Motion: Teleconference February 27, 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 27, 2017 because it was being operated by a driver whose driver’s licence was under suspension. The appellant filed a Notice of Appeal relating to the impoundment on December 27, 2017. However, the Tribunal did not receive the Notice of Suspension and Impoundment, the document that the appellant was appealing, until January 30, 2018.
3The appellant was notified by correspondence dated January 24, 2018 from the Licence Appeal Tribunal that her appeal was incomplete because the Notice of Suspension and Impoundment was not included.
4The appellant did not receive a Notice of Suspension and Impoundment, and this document could not be accessed until January 30, 2018 because the OPP officer, who had the vehicle impounded, neglected to enter the impoundment onto the appropriate computer system until January 30, 2018. The backside of the Notice of Suspension and Impoundment includes information about filing an appeal.
5For 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:
6The issue to be decided on this motion is whether the appellant has established reasonable grounds to support an extension of time.
C. THE LAW:
7Pursuant 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.
8The 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, Schedule 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.
9In 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.
10The 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:
11Having 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.
12The appellant submits that she left her vehicle with a mechanic to repair the brakes. Unbeknownst to her, the mechanic was a suspended driver, and he drove her vehicle without her consent.
13The appellant is a single mother of two. She needs her car to drive her children to school and her elderly mother to appointments. Her mother is not able to walk.
Did the appellant have a bona fide intention to appeal?
14Looking at the first of the four factors to be considered, the appellant was 15 days late in filing her Notice of Appeal because she was not aware that she had a right to appeal the impoundment. She has never been in this situation before, and when she attended the impound facility, she was not informed that she had a right to appeal the impoundment.
15The backside of the Notice of Suspension and Impoundment states that the impoundment can be appealed and provides contact information for the Licence Appeal Tribunal, as well as a website where an appeal application may be obtained. However, through no fault of her own, the appellant did not receive the Notice of Suspension and Impoundment. Even if she had filed her Notice of Appeal within the 15 day time period, the appeal could not have been perfected within this time period given the oversight of the OPP officer.
16I find the appellant did have a bona fide intention to appeal the matter within the 15 day time period but did not have access to the information in respect of filing an appeal because she was not issued a Notice of Suspension and Impoundment.
The length of the delay
17On the second factor, the length of the delay, it is my finding the delay in filing the Notice of Suspension and Impoundment, the document being appealed, was not as a result of or for a reason that could be attributed to the appellant. Neither the appellant nor the respondent was able to access the Notice of Suspension and Impoundment because the police officer failed to enter the impoundment in the appropriate system until January 30, 2018. Further, even the initial 15 day delay in filing the Notice of Appeal was not the fault of the appellant since she was not aware of her appeal rights given that she was not given the Notice of Suspension and Impoundment.
Prejudice to the Registrar
18The third factor 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. However, the appellant should not be penalized for exercising her right to seek an extension of time or for the oversight of the OPP officer.
Merits of the appeal
19The 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. Two grounds of appeal are alleged, that the vehicle was stolen and that the impoundment will result in exceptional hardship.
20In my view the appellant has a reasonable chance of succeeding on the appeal on the stolen grounds. On the facts presented on the motion it is possible for the Tribunal to determine that her vehicle was stolen.
21Having 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
22On 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 a hearing without first participating in a case conference.
c. The Tribunal shall schedule this appeal to be heard on an expedited basis.
LICENCE APPEAL TRIBUNAL
Jacqueline Castel
Released: March 1, 2018