Kelly Bristol v. Registrar of Motor Vehicles, 2019 CanLII 119724

Licence Appeal Tribunal

Date: 2019-11-22

Tribunal File Number: 12400/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:

Kelly Bristol Appellant (Moving Party)

And

Registrar of Motor Vehicles Respondent (Respondent on Motion)

DECISION AND ORDER ON MOTION

Adjudicator: Jacqueline Castel

Appearances:

For the Appellant: Did not appear

For the Respondent: Nora Challas, Agent

Place and Date of Motion: Teleconference November 21, 2019

REASONS FOR DECISION ON MOTION AND ORDER

A. OVERVIEW:

1This is a motion to extend the time to appeal a motor vehicle impoundment to the Licence Appeal Tribunal (the “Tribunal”).

2The appellant’s vehicle was impounded, on August 4, 2019, because it was being operated by a driver whose driver’s licence was under suspension as a result of a Criminal Code conviction. Subsection 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) allows for the impoundment of a vehicle where a police officer is satisfied that the licence of the driver of the vehicle is under suspension.

3On the Notice of Motor Vehicle Impoundment Form, the police officer checked the box indicating a 45 day impoundment, but at the bottom of this box wrote that the impoundment would be 180 days. However, according to the agent for the respondent, the impoundment is entered on the Ministry’s data base as a 45 day impoundment.

4The Tribunal received the appellant’s Notice of Appeal (“NOA”) on October 31, 2019. The deadline for filing the appeal was August 19, 2019.

5The appellant filed a motion, on November 4, 2019, requesting that the 15 day time line for appealing the impoundment be extended. The Tribunal scheduled a teleconference motion hearing for 9:30 a.m. on November 21, 2019 and emailed the parties a Notice of Motion hearing, with the call in details, on November 14, 2019, as well as a reminder email on November 20, 2019. The appellant did not call in at the scheduled time and could not be reached.

6The respondent’s agent asked that the matter proceed, as scheduled, in the absence of the appellant. Given that the appellant received notice of the hearing, and given that there has already been considerable delay, I agreed to proceed with the motion hearing in the absence of the appellant.

7For the reasons that follow, the motion is denied.

B. THE ISSUE TO BE DECIDED:

8The issue to be decided on this motion is whether the appellant has established reasonable grounds to support an extension of time to appeal a motor vehicle impoundment..

C. THE LAW:

9Pursuant to section 9 of Ontario Regulation 631/98 issued under 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.

10The 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.

11In 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.

12The 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?

13The appellant stated in her written material that she was not aware that she had the right to appeal the impoundment. Ms Challas, the agent for the respondent, pointed out that information about appealing an impoundment is available on-line and suggested that the appellant did not attempt to explore the option of appealing the impoundment during the 15 day appeal period.

14There was no evidence before me to suggest that the appellant made efforts to research or pursue the option of appealing the impoundment during the 15 day appeal period. As such, I find the appellant did not have a bona fide intention to appeal the matter within the 15 day appeal period.

The length of the delay

15On the second factor, the length of the delay, it is my finding that a delay of over two months, in filing a NOA, is significant.

Prejudice to the Registrar

16The third factor is prejudice to the opposing party. Ms Challas submitted that there would be prejudice to the Registrar, if the appeal proceeded; specifically, if the appellant was successful on the merits of her appeal, the respondent would be responsible for the fees of towing and storage for the 45 day period of impoundment. I agree that the Registrar would encounter some prejudice by the late filing of the NOA.

Merits of the appeal

17The 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.

18In my view, based on the information presented at the motion and in the NOA, the appellant does not have a reasonable chance of succeeding on the appeal.

19The appellant indicated, in the NOA, that she wishes to appeal based on the ground that the vehicle was stolen, at the time of the impoundment, and on the ground of exceptional hardship.

20The appellant disclosed in her NOA that the driver of the vehicle was her roommate. She knew he was a suspended driver and gave him the keys of her vehicle for the purpose of repairing it. She stated in the NOA that she did not give him permission to drive the vehicle, but acknowledged that she was not supervising him while he had control of her vehicle, for the purpose of repairing it. The suspended driver was not charged by the police with theft of the vehicle. In these circumstances, the appellant does not have a reasonable chance of establishing that the vehicle was stolen at the time of the impoundment.

21Section 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 an alternative to the impounded vehicle, it need not consider any other requirements.

23In this case, the appellant stated in her NOA that she is receiving disability benefits and requires the vehicle to attend medical appointments for her breast cancer. Ms Challas submitted certified Ministry of Transportation records indicating that the appellant is the registered owner of another vehicle, which is in fact newer than the vehicle which was impounded. As such, the appellant had an alternative to the impounded vehicle during the period of impoundment and would not succeed on the ground of exceptional hardship.

24In 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. There was no evidence that the appellant intended to appeal the impoundment during the 15 day period of appeal, a significant amount of time has elapsed, there is some prejudice to the respondent in proceeding after so much delay, and the appellant does not have a reasonable chance of succeeding on the merits of the appeal.

ORDER ON MOTION

25Accordingly, the motion is denied.