Julie Tremblay v. Registrar of Motor Vehicles, 2019 CanLII 101846

Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Citation: Julie Tremblay v. Registrar of Motor Vehicles, 2019 ONLAT 12292/MVIA

Date: 2019-09-10

Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 from an Impoundment Pursuant to Section 55.1 of the Act.

Between:

Julie Tremblay Appellant

-and-

Registrar of Motor Vehicles Respondent

MOTION AND CASE CONFERENCE ORDER

Order made by: Patricia McQuaid, Vice-Chair

Date of Order: September 10, 2019

1The appellant, Julie Tremblay, appeals to this Tribunal from the impoundment of her vehicle, a 2014 Chev CZT, on July 30, 2019. Ms Tremblay’s ground of appeal in this case is that the impoundment of the car has caused her exceptional hardship.

2Ms Tremblay filed her Notice of Appeal on August 26th, which was outside the 15-day period for an appeal. She then filed a motion for an extension of time and leave to file the appeal on August 28th. The Tribunal heard this motion on September 9th. Ms Tremblay was self-represented; Nora Challis participated on behalf of the Registrar of Motor Vehicles (the “Registrar”).

3Based on a review of the Notice of Motion filed as well as the Notice of Appeal document, and after hearing submissions from the parties, the Tribunal made an oral decision granting the motion with written reasons to follow.

ISSUE

4The issue before the Tribunal on this motion is whether the appellant has established reasonable grounds for an extension of time.

LAW

5Section 9 of Regulation 631/98 (Long-Term Vehicle Impoundment under Section 55.1 of the Highway Traffic Act) provides that an appeal of an impoundment under s. 55.1 of the Act must be filed within 15 days of the impoundment.

6Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, gives the Tribunal the power to 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.

7In exercising that power, the Tribunal is guided by the principles for consideration on motions for the extension of time set out in the decision of the Divisional Court in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492, on appeal from this Tribunal. The decision sets out the four factors to be considered in assessing a request for an extension of time, as follows:

• The existence of a bona fide intention to appeal;
• The length of the delay;
• Prejudice to the other party; and
• The merits of the appeal.

8The Court of Appeal in Frey v. MacDonald, [1989] O.J. No. 236 (C.A.), stated that the general rule is that time for an appeal is not extended unless the appellant has shown that these factors support an extension. The onus is on the appellant to provide evidence that can support one or more of these factors. Courts have also determined that these factors are simply a guide to assist in determining the justice of the case. A weaker fact situation under one head may be balanced by stronger facts under one or more of the remaining factors.

ANALYSIS

Bona fide intention to appeal

9The first factor I must consider is whether there was a bona fide intention to appeal. Ms Tremblay stated that after the vehicle was impounded she began to do some research to find out how to get her vehicle out of the impoundment. She found out some information first on a British Columbia website and then discovered the applicable Ontario legislation. Ms Tremblay acknowledges that ignorance of the law is not an excuse, but she stated that she was dealing with other issues related to the incident at the same time and as a result was delayed in getting the information she needed. Based on the Ms Tremblay’s submissions, I am satisfied that she has demonstrated an intention to get her car back, through an appeal process, and made appropriate efforts to try to avail herself of this appeal process. Therefore, I find that Ms Tremblay has demonstrated a bona fide intention to pursue her appeal within the appeal period.

Length of delay

10The second factor I must consider is the length of the delay, that is, the delay between the expiry of the of the 15-day appeal period and the date on which the appeal was submitted. Based on the documents filed, the appellant’s vehicle was impounded on July 30, 2019. The appeal period expired on August 14th. The appeal documents were received by the Tribunal, by mail, on August 26th, a delay of 12 days. An impoundment of a vehicle is a time limited event. If the appeal is allowed by the Tribunal, the Registrar is required to cover the full cost of the impoundment. As Ms Challis submitted, when an appeal is filed beyond the 15-day period, the Registrar has less opportunity to assess the appeal to determine whether an early release is appropriate, thereby reducing the cost exposure. A twelve delay is not insignificant; however, I also note that there was still 17 days before the expiry of the impoundment period for the Registrar to complete its review. On the facts here, I do not find that this factor weighs against the appellant.

Prejudice to the other party

11The third factor is the prejudice to the Registrar. As noted above, any prejudice arises from the fact that had the appeal been filed within the 15--day period, the Registrar would have had an earlier opportunity to assess, whether, as asserted by the appellant, there were grounds for release based on exceptional hardship, thereby potentially minimizing its cost exposure. One of the reasons for the expedited nature of the appeal process in these cases is to limit the costs faced by the Registrar, should the appeal be successful. Given the timeline here, the opportunity for that assessment was not lost to the Registrar, only narrowed in terms of time. I do find, however, that this factor weighs, in favour of the Registrar, though not heavily.

The merits of the appeal

12The fourth factor I must consider is whether the proposed appeal lacks merit. This motion is not a full hearing on this case, so I cannot say whether the appeal will be successful. In her Notice of Appeal, Ms Tremblay cites the fact that she is a student and the financial impact on her as a result of the impoundment. Consideration of the merits is, at this stage, at a low threshold. The legislation is fairly prescriptive in terms of the ground of exceptional hardship. Careful weighing the evidence of ‘exceptional’ hardship’ is required. I note that Ms Tremblay is self-represented and a student. It was neither appropriate or fair to permit cross-examination by the Registrar on her circumstances in the context of this motion. There is insufficient information before me to assess whether there may be merit in this appeal and this may weigh in favour of the Registrar, though in these particular circumstances, not heavily.

13Using these factors as a guide, I find that the justice of the case supports granting an extension of time for the filing of the appeal.

14After orally granting the motion, a case conference was held in this matter on the same day, September 9, 2019. I informed Ms Tremblay that the impoundment ends on September 13th and that any costs incurred after that, if she does not pick up her vehicle on that date, even if her appeal is successful, are hers to bear.

Following upon the case conference on September 9, 2019, I order as follows:

15The appellant’s motion for an extension of time and leave to file her appeal is granted.

16A hearing is scheduled for September 17th by teleconference. The Tribunal has sent a Notice of Hearing to the parties containing the date for the hearing and teleconference details.

17Should the matter not resolve before the hearing, the primary issue before the Tribunal will be:

a. Has the impoundment of the vehicle caused the appellant exceptional hardship?

18The burden is on the appellant to prove the facts of her case as they relate to the issue to be considered. If the appellant intends to rely on any other ground of appeal, she is to advise the Registrar by no later than noon on September 13, 2019.

19The Registrar will produce all documents to be relied upon at the hearing to the appellant and the Tribunal by September 12, 2019. The appellant will produce all documents that she intends to rely on to the Registrar and Tribunal by noon on September 13, 2019. The appellant will also, at the same time, provide brief witness statements for any person she intends to call as a witness. If either party wishes to refer the Tribunal to case law at the hearing, they are requested to provide copies of the cases to each other and the tribunal the day before the scheduled hearing.

20If the parties reach an agreement on the issues in dispute, they shall immediately advise the Tribunal. The Tribunal will thereafter cancel the hearing. In the case of withdrawal, the appellant shall serve the respondent and file with the Tribunal a Notice of Withdrawal, after which the hearing will be cancelled. The Tribunal’s Notice of Withdrawal is available at https://slasto-tsapno.gov.on.ca.