Date: 2019-11-21

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:

Arjun & Annreet Transport Inc.

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Jennifer Friedland, Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Sanjay Kapur, Agent

Place and date of hearing: By teleconference

September 19, 2019

REASONS FOR DECISION AND ORDER

A. OVERVIEW

1The appellant, a trucking company, brings a motion seeking an extension of time to file an appeal of the impoundment of one of its trucks. The truck was impounded for 45 days under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) when its driver was found to have been driving with a suspended licence. By the time the appellant filed its notice of appeal and sought an extension of time, the truck was already out of the impoundment.

2The respondent, the Registrar of Motor Vehicles (“the Registrar”), brings a counter-motion seeking an order dismissing the appellant’s appeal on the basis that the Tribunal does not have jurisdiction to hear an appeal commenced outside the period of the impoundment. It argues that the appellant’s motion to extend the time for commencing the appeal is therefore moot. In the alternative the Registrar submits that an extension of time to file the appeal should not be granted.

3The two motions were heard together by teleconference. Submissions were made in writing by the Registrar prior to the motion. The appellant was provided an opportunity to also make written submissions but did not. Both parties made oral submissions at the hearing of the motion.¹

B. RESULT

4For the reasons given below, I find that the Tribunal has jurisdiction to hear an appeal commenced outside the period of impoundment, and that the appellant’s request for an extension of time is not moot. However, I find that an extension of time is not warranted in this case. Both parties’ motions are therefore dismissed.

C. PRELIMINARY ISSUE

5At the start of the hearing of the motion, the Registrar made a preliminary request that I recuse myself on the basis that I am the author of a decision that conflicts with the Registrar’s position on jurisdiction. I made a ruling at the hearing, declining to recuse myself. My reasons are elaborated on below.

D. ISSUES & ANALYSIS

I. Recusal Request

6As will be detailed below, the Tribunal has conflicting decisions on the issue of whether it has jurisdiction to hear an appeal commenced outside the period of an impoundment. There are two decisions in which the Tribunal agrees with the Registrar’s position. There is another decision that disagrees with that position. That latter decision is mine. As a result, upon learning at the start of the teleconference that I was the adjudicator assigned to this motion, Mr. Kapur on behalf of the Registrar, suggested that I may wish to recuse myself. He advised that he had also raised the issue with the Tribunal’s scheduling department by email dated September 6, 2019. The full text of that email is as follows:

Also, just wanted to note in terms of scheduling an adjudicator, it might be consideration for LAT that our motion challenges member Jennifer Friedland’s earlier ruling, so she might end up recusing herself if designated.

7Notably, Mr. Kapur did not suggest that either of the Tribunal members who agreed with the Registrar’s position might similarly wish to recuse themselves.

8The Registrar presented no legal basis for its request that I recuse myself, and seeing none myself, I refused the Registrar’s request, which in its essence, is “adjudicator shopping.”

9A Tribunal member, like a judge, benefits from a strong presumption of impartiality². The fact that a decision maker has decided a legal issue in a previous case, does not rebut this presumption. There are numerous examples of lower courts holding conflicting views of the law until a higher court rules on the issue, and the fact that a judge may have a view of the law that favours one party’s position over the other’s is not grounds for recusal. This is equally the case at this Tribunal. The remedy for a party that does not agree with a decision maker’s position on the law is to seek judicial review or to appeal, as the case may be. It is not to find a different decision maker whose view of the law they prefer.

10I therefore conclude that the fact that I have decided a legal issue previously does not create a reasonable apprehension of bias and is not grounds for recusal. I will however, remain open to any new arguments raised by the Registrar and I will carefully consider the Registrar’s basis for asking that my previous decision be overturned.

II. The Tribunal’s Jurisdiction to Hear an Appeal Filed after the Period of Impoundment

The Registrar’s position

11The Registrar argues that an appeal cannot be commenced once the period of the impoundment has passed. In this case the period is 45 days.

12The Registrar relies on s. 9 of Ontario Regulation 631/98 which states that an appeal under s. 50.2 of the Act must be commenced within 15 days of the day the vehicle was detained in order to be impounded. The full provision reads as follows:

Appeals under Section 50.2 of the Act

9 An appeal to the Tribunal under section 50.2 of the Act with respect to the impoundment of a motor vehicle under section 55.1 of the Act shall be commenced by filing with the Tribunal a notice of appeal, together with the fee established by the Tribunal, within 15 days after the day the vehicle was detained under subsection 55.1 (1) of the Act. O. Reg. 456/10, s. 2 (2).

13The Registrar acknowledges that the Tribunal has the authority to grant an extension of time pursuant to section s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G (the “LAT Act”), which states:

Extension of time

7 Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of 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. 1999, c. 12, Sched. G, s. 7.

14Despite the broad discretion afforded the Tribunal on the face of this rule, the Registrar’s position is that the Tribunal’s power to exercise its discretion under s.7 of the LAT Act is limited to extending the time to commence the appeal “provided that the notice of appeal is filed before the vehicle is released” (my emphasis).

15The Registrar bases its argument on a reading of the impoundment appeal provisions in section 50.2 of the HTA. In particular it relies on the use of the present tense in section 50.2 (1) which states that:

50.2 (1) The owner of a motor vehicle that is impounded under section 55.1 may, upon paying the fee established by the Tribunal, appeal the impoundment to the Tribunal. 2009, c. 5, s. 22.

16The Registrar argues that the use of the present tense (“is impounded”) means that the vehicle must still be within the impound period in order to be appealed.

17The Registrar further points to s. 50.2 (5) of the Act which sets out the Tribunal’s powers on appeal and states that the Tribunal may “confirm the impoundment or order the vehicle released.” The Registrar contends that “it would be absurd for the Tribunal to cause the Registrar to do something it cannot do, i.e. to issue a release order for a vehicle that is no longer impounded.”

18The Registrar relies on two cases by this Tribunal which agree with the Registrar’s interpretation that the Tribunal does not have jurisdiction to hear an appeal commenced outside the period of the impoundment. These are G.R.-M v. Registrar of Motor Vehicles³ and Rory Walker v. Registrar of Motor Vehicles⁴.

The conflicting decision within the Tribunal

19As noted above in my consideration of the Registrar’s request that I recuse myself, there is a conflicting decision of the Tribunal on this issue, which is mine: Rose-Marie Bobiwash v. Registrar of Motor Vehicles.⁵ At the time of writing Bobiwash I had the benefit of reading GRM but the Walker decision had not come to my attention, having been released in and around the same time as mine. I disagreed with the conclusion in GRM.

20In Bobiwash, I concluded that s. 50.2 (1) governed who was entitled to appeal (i.e. a person whose car is impounded pursuant to s. 55.1), but that it did not speak to timing. I concluded that the timing is set out in Regulation 698/30 at paragraph 9 which specifies that an appeal must be filed within 15 days after the vehicle was detained in order to be impounded; however, s. 7 of the LAT Act allows the Tribunal to extend that time period if it is “satisfied that there are reasonable grounds for applying for the extension and for granting relief.”

21Below I will review the basis for my position and consider any new arguments put forward by the Registrar.

The present tense issue and the question of jurisdiction

22With respect to the use of the word “is” in s. 50.2(1), I remain unpersuaded that the use of the present tense may be relied on to remove an appellant’s right to appeal an impoundment past the release date, where the circumstances warrant an extension of time to file the appeal. In Bobiwash, I compared the language in 50.2(1) to the language 55.1(27) under the same part of the Act which uses identical present tense language (“an owner whose car is impounded) to set out what I identified as a prospective right (“may bring an action”). Neither provision, in my view, required the right to be exercised during the period of the impoundment.

23At para 24 of Bobiwash, I wrote as follows:

The use of the present tense “is impounded”

[24] Applying the rules of statutory interpretation to the words, “is impounded,” I find that a literal temporal, definition of those words is not a sustainable interpretation. In my opinion, in this provision, as elsewhere in the same Part of the HTA, the reference to a vehicle that “is impounded” must be read to include a vehicle that has been impounded.

[25] The following example will show how the purpose of the statute would be confounded if the literal interpretation of “is impounded” were applied. Consider section 55.1 (27) which reads as follows:

(27) The owner of a motor vehicle that is impounded under this section may bring an action against the driver of the motor vehicle at the time the motor vehicle was detained under this section to recover any costs or other losses incurred by the owner in connection with the impoundment. 2009, c. 5, s. 24. (emphasis added).

[26] On a literal reading of this provision, an owner would be required to bring an action against the driver during the period of the impoundment. This would defeat the purpose of the provision. At that point in time, the full costs of the impoundment would not even have accrued.

[27] The provision allowing an appeal at s. 50.2 (1) of the Act reads the same way as 55.1(27):

55.1(27) The owner of a motor vehicle that is impounded … may bring an action ….

50.2(1) The owner of a motor vehicle that is impounded … may … appeal.

[28] Looking at the whole of the Act, therefore, I find that the phrase “is impounded” captures a vehicle that was impounded under 55.1 of the Act, even if the 45-day period has elapsed. To read the statute otherwise would be unduly restrictive, and would not contribute to the objective of the provision, which is to facilitate an appeal on limited grounds.

[29] I therefore find that the intent of s. 50.2 (1), as with section 55.1(27) is to identify who may appeal. The use of “may” is prospective, in my view. It allows an appeal to be brought by a person whose vehicle is impounded pursuant to that section, but does not speak to the timing of that appeal. The timing, as discussed above, is set out in the Regulation and specifies that an appeal shall be commenced with 15 days. However, this time limit may be extended pursuant to s.7 of the LAT Act on reasonable grounds.

24In its written submissions on this motion with respect to the above analysis and one of the bases upon which I am asked not to follow Bobiwash, the Registrar states:

… the Tribunal in Bobiwash used subsection 55.1(27) as an aid to its own statutory interpretation, reasoning that a literal interpretation of “is impounded” meant that the owner of the impounded vehicle must bring an action against the driver while the vehicle is impounded. With respect, the Registrar submits the Tribunal in Bobiwash erred: subsection 55. 1(27) of the Act does not prescribe when the owner of the vehicle that is impounded must bring their action; rather, subsection 55.1(27) simply identifies the legal basis upon which the vehicle owner can seek damages from the driver.

25I have considered this submission and agree with the Registrar that subsection 55.1(27) “does not prescribe when the owner of the vehicle that is impounded must bring their action.” However, that is exactly the point. This provision, like s. 50.2(1), does not speak to timing. It is permissive and prospective. It sets out who may appeal, not when. I remain unpersuaded that the use of the present tense can be relied on to circumscribe the Tribunal’s jurisdiction to hear an appeal commenced after the period of the impoundment.

The Tribunal’s powers under s. 50.2(5) and the question of jurisdiction

26With respect to the question of jurisdiction in light of the Tribunal’s statutory powers under s.50.2(5) to either “confirm the impoundment or order the Registrar to release the motor vehicle,” the Registrar points to the steps to be taken by the Registrar if an appellant is successful and the Tribunal orders the Registrar to release the vehicle following a hearing. The Registrar submits that these steps cannot be carried out if the vehicle is already released and therefore the Tribunal does not have jurisdiction to consider an appeal filed after the period of an impoundment.

27The steps to which the Registrar refers are set out in subsection 50.2(7) of the Act as follows:

Registrar’s actions if Tribunal orders release of vehicle

50.2 (7) If the Tribunal orders the Registrar to release the motor vehicle, the Registrar shall, upon receipt of the notice,

(a) issue an order to release the vehicle;

(b) pay on behalf of the owner the amount incurred by the owner, as a result of the impoundment, for removing and impounding the vehicle, not including any amount for economic losses; and

(c) pay the operator or the owner the amount incurred by the operator or owner, as a result of the impoundment, for removing the load or drawn vehicle from the motor vehicle, not including any amount for economic losses. 2009, c. 5, s. 22.

28The Registrar’s submission focuses on the first step only. The Registrar submits:

If the vehicle owner’s appeal is filed after the vehicle has been released then the Registrar is unable to follow clause 50.2(7)(a): it cannot issue an order to release the vehicle since it is no longer impounded.

It would be absurd for the Tribunal to cause the Registrar to do something it cannot do, i.e. to issue a release order for a vehicle that is no longer impounded.

29In my view, while it would be unnecessary for the Registrar to issue an order to release a vehicle after the period of the impoundment, I am not persuaded that this is a barrier to the Tribunal exercising its jurisdiction once a vehicle is out of the impoundment. If an appellant is successful on appeal, the Registrar is required to do more under subsection 50.2(7) than just order the vehicle released; it must also pay the impoundment costs on behalf of the owner; and any cost of removing the load or drawn vehicle, if applicable.

30Moreover, as I noted in Bobiwash, the Tribunal regularly hears appeals after a vehicle has been released from the impoundment without any objection from the Registrar as to the Tribunal’s jurisdiction to do so. This happens from time to time, for example, in cases where an extension of time to file an appeal has been granted and the delay in filing means that the hearing is not scheduled until after the impound period. In such cases, if the appellant is successful, the Registrar does exactly what it purports not to be able to do in this case. It skips section 50.2(7) (a) because the vehicle has already been released and proceeds directly to provide reimbursement for the costs of the impoundment under s. 50.2(7)(b). See for example, 11831 v. Registrar Motor Vehicles, 2019 CanLII 29102, at paragraphs 4-8, where the member noted:

[4] Section 50.2 of Highway Traffic Act provides that on an appeal the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle.

[5] In this case, the 45-day impoundment period expired on February 5, 2019 and the appellant’s vehicle was released after he paid the towing and impoundment costs of $3,051.

[6] Although the vehicle was released before this appeal was held, the appellant requests that the Tribunal proceed to consider the appeal and order the Registrar to release the vehicle

[7] As the Registrar’s agent confirmed at the appeal hearing, although the vehicle has already been released, the practical effect of such an order is that the Registrar would reimburse the towing and impound charges paid by the appellant to recover his vehicle.⁶

31As I stated in Bobiwash, it is my opinion that if there is jurisdiction to hear an appeal after the period of the impound, then there must also be jurisdiction to hear an appeal commenced after that period. In either case, the Tribunal is required to issue an order either confirming the impoundment or ordering the Registrar to release the vehicle, despite the vehicle no longer being impounded.

32In its written submissions, the Registrar responds to my conclusion above, by arguing

…that the legislative intent does not match the ‘outcome in practice’ cannot grant jurisdiction that is unauthorized by the statutory grant of power contained in section 50.2 of the Act and section 9 of Reg. 631/98.

The Registrar submits that while the Tribunal is certainly empowered by section 7 of the LAT Act to grant extensions of time to file an appeal, it should not exercise that power because it does not remove the mootness of the substantive appeal – the vehicle is no longer impounded.

33It is unclear from this submission whether the Registrar is implying that in those previous cases the Tribunal did not have jurisdiction to make the order it did. The Registrar has not made that argument expressly and did not raise it in those previous cases. Moreover, when asked outright on the motion whether this was the Registrar’s position, the Registrar stated that its submissions were with respect to this case only – where an owner is trying to commence an appeal after the period of the impoundment. This is also the Registrar’s ultimate position in its written submissions, in which it allows that

… a vehicle owner can bring a motion to extend the time for the appeal provided that the notice of appeal is filed before the vehicle is released (emphasis in original)

34I remain unpersuaded that the Tribunal’s jurisdiction is constrained by the timing of the filing of the appeal. Either the Tribunal has the authority to make an order after the car is past the period of the impoundment or it does not. I see no basis to distinguish between an appeal filed the day before a vehicle is released but heard sometime after the vehicle’s release, and an appeal filed the day after the impoundment and heard sometime after the vehicle’s release. In both cases, the vehicle is out of the impoundment at the time the Tribunal is called on to either “confirm the impoundment or order the Registrar to release the vehicle.”

Conclusion on the issue of jurisdiction

35In summary, my view remains that the Tribunal’s jurisdiction is set out in s. 50.2 (1) which states that an owner of a motor vehicle that is impounded may appeal to the Tribunal upon paying a fee. I read this as being prospective and permissive (the owner may appeal). The timing of the appeal is set out in section 9 of the Regulation 631/98 and requires an appeal to be filed within 15 days. I agree with the Registrar that the intent of the provisions may be to have the appeal heard within the period of the impound (and note that the LAT rules also require an MVIA appeal to be scheduled within 30 days of the appeal being commenced). However, for reasons explained above, I am of the view that this is not a jurisdictional issue. There is a 15-day appeal period and the LAT Act allows the Tribunal to grant an extension of time “despite any limitation of time fixed by or under any Act.” Section 7 of the LAT Act further states that the Tribunal can “extend the time for giving the notice either before or after the expiration of the limitation of time so limited” (my emphasis). In my view, it is s.7 of the LAT Act that governs whether an appeal may be heard if it is filed outside the period of the impound. I turn to that question now.

III. Whether an extension of time should be granted

36In determining whether to grant an extension of time under s. 7 of the LAT Act, the Tribunal considers the following factors, which are not strict elements that must be met in each case, but rather a guide to determining whether the justice of the case requires that an extension be granted:

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

37The evidence relating to each of these factors in this case can be summarized as follows:

The existence of a bona fide intention to appeal within the appeal period

38The appellant and her husband together run their trucking business. He is a driver. She handles the administrative side of the business. The appellant explained that they had never experienced a truck being impounded and did not know what to do.

39The appellant described how the day after the impoundment, on June 21, 2019, she went to obtain a driver’s abstract for her employee. She thought he had a valid Quebec licence and was surprised to learn he also held an Ontario licence that had been suspended.

40About 5-10 days after the impoundment she received a “Tow Notification” card from the Hamilton Police, showing that the truck was towed on June 20, 2019 and would be released on August 4, 2019. She stated that she did not really look at the date, she just noted it was in August and thought she would return to look at the specific date as August approached.

41Approximately 5-10 days following that notice she received what she described as a “duplicate” card from the Hamilton Police. A photo of the two cards shows that this second one was similar in all respects to the first “Tow Notification” except it showed a tow date of July 11, 2019 and a release date of August 28, 2019. The appellant noted the date was August 28 and never compared this card to the earlier one. Having already noted that the other card said “August,” she assumed the dates were the same⁷.

42The appellant stated that she did not at any time receive a Notice of Impoundment. Therefore, she did not have the information that is provided on the Notice of Impoundment which sets out the process and grounds for an appeal.

43The respondent suggests that the appellant likely did receive the Notice of Impoundment but was not careful enough to notice.

44I accept the appellant’s evidence. It seems likely that if she had seen a paper setting out her right to appeal the impoundment, she would have appealed it.

45However, this does not end the analysis. The respondent submits that there is no legislative requirement to advise an owner of the appeal process. Mr. Kapur submits that this is only “a courtesy” and in the absence of being told about an appeal, the appellant should be expected to have looked into that possibility on her own.

46In this case, the appellant admitted that she did not at any time take steps to research if there was an avenue of appeal. The Registrar noted that almost any google search asking how to get a vehicle out of impoundment will lead one to the Licence Appeal Tribunal’s appeal process. The appellant never took this simple step.

47Moreover, when the appellant finally did obtain information about having an avenue of appeal, she did not immediately take it. She stated that about 20-25 days after the impoundment, she and her husband went to Service Ontario to see if there was a way to get their truck out of the impoundment. She stated that she was directed to the Tribunal’s website at that time, however still she did not file an appeal. The appellant explained that her reason for not doing so was because she saw that the deadline for filing was 15 days and assumed this meant she could no longer appeal. She stated it was only after speaking to a person at the Ministry of Transportation in early August that she learned that the Tribunal might still be able to “help.” She says that she then spoke to a representative at the Tribunal who told her to file an appeal and a motion to extend the time for filing. Yet even then, the appellant appears to have delayed filing the appeal. Her Notice of Appeal and Notice of Motion show that she signed them on August 16, 2019, however they were not received by the Tribunal until 10 days later on August 26, 2019.

48In the meantime, on August 19, 2019, the appellant retrieved the truck from the impoundment, it turned out that the correct release date was August 4th, as set out in the first notice. The appellant learned this when she finally looked at the two cards, noticed the discrepancy as to the dates, and began to make inquiries with the Hamilton Police. She filed her notice of appeal with the Tribunal some time following. In it she included proof of having retrieved the vehicle.

49Given the above circumstances, I find it difficult to conclude that the appellant had a bona fide intention to appeal during the appeal period. Although I accept that she did not initially know of the opportunity to appeal, I am not persuaded that she can rely on that ignorance to prove the intention. As the Registrar submits, sometimes an appellant’s steps to retrieve the vehicle can be taken as a proxy for an intention to appeal. Here, however, the appellant simply stuck the Tow Notification cards in her drawer, did not even attend to the release dates or the discrepancies on the cards, did not google a remedy, and did not even file her appeal with dispatch once she did become aware of the appeal process.

The length of the delay

50The appellant’s notice of appeal was received 52 days after the 15-day period specified in s. 9 of the Regulation. This is a significant period of delay which is aggravated by the appellant’s delay between learning of the appeal process and actually filing the appeal.

Prejudice to the parties

51If an extension of time were granted, the Registrar would be prejudiced as it benefits from a prompt hearing, as close to the 15-day limit as possible. This is because if the appellant is successful, the Registrar covers the cost of the impoundment. Thus, if a vehicle is going to be released; the earlier, the better. This factor weighs against granting an extension of time.

The merits of the appeal

52The appellant appeals on the grounds of due diligence, stating that she had verified that the driver had a valid Quebec licence and could not have known that the driver had a suspended Ontario licence.

53The ground of due diligence is not easy to prove. It requires the owner to have taken all reasonable steps in attempting to determine that the driver’s licence was not under suspension at the time the vehicle was detained in order to be impounded

54Here, the appellant acknowledges that she did not obtain the abstract of her employee’s Ontario licence until after the truck was impounded. She argues that even if she had, however, she could not have known he was a suspended driver because the abstract shows that the driver’s licence expired in 2015 and was not renewed. She asks how it would be possible to know a licence was suspended if it is shown as “expired?”

55Notably, the appellant does not make any submission with respect to the other entries on the driver’s abstract; for example, the entry showing that the driver required an interlock device, or the entry dated May 27, 2019 showing that his licence had been suspended for total demerit points.

56It is “up to the Appellant, on a motion for an extension of time, to demonstrate some merit to the case”: Manuel v. Registrar, 2012 ONSC 1492 at para. 37 (Div. Ct.). From the appellant’s submissions on this motion, and as set out in the notice of appeal, I am not persuaded that she could be successful on this ground of appeal.

Conclusion on the motion to extend the time for filing

57Applying the criteria established by s. 7 of the LAT Act against the above factors, I decline to grant the appellant an extension of time to file its Notice of Appeal. I am not satisfied that there are reasonable grounds for applying for the extension and for granting relief.

E. ORDER:

58The Registrar’s motion to dismiss the appellant’s appeal for lack of jurisdiction is dismissed.

59The appellant’s motion to extend the time for filing the appeal is also dismissed.

60The Tribunal’s file will now be closed.

Footnotes

1. 1The appellant was represented by Ms. Saini on this motion. Ms. Saini, together with her husband, run the appellant trucking company. For ease of reference, Ms. Saini will be referred to as the appellant in this decision.
2. 2See Wewaykum Indian Band v Canada, 2003 SCC 45 at para 59.
3. 32019 ON LAT HTA MVIA 11739 (“GRM”)
4. 42019 ON LAT HTA MVIA 12140, 2019 CanLII 83899 (“Walker”)
5. 52019 ON LAT HTA MVIA 12065, 2019 CanLII 83594 (“Bobiwash”)
6. 6See also 11834 v. Registrar of Motor Vehicles, 2019 CanLII 32282 at para 4, for a similar outline of the process the Registrar would follow if the vehicle were to be ordered released after the expiration of the 45-day impoundment.
7. 7No information was provided as to why this second Tow Notification specified the tow date as July 11, 2019.