Tribunal File Number: 11815/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:
R.G.
Appellant (Moving Party)
and
Registrar of Motor Vehicles
Respondent (Responding Party)
DECISION AND ORDER ON MOTION
Adjudicator: Zahra Dhanani
Appearances:
For the Appellant: S.G., Son of the Appellant
For the Respondent: Steve Grootenboer
Heard by Teleconference on: January 18, 2019
REASONS FOR DECISION ON MOTION AND ORDER
OVERVIEW
1This is a motion to extend the time to appeal a motor vehicle impoundment.
2The appellant’s vehicle was impounded on December 22, 2018 because it was being operated by a driver whose driver’s licence was under suspension. The Tribunal received the appellant’s Notice of Appeal on January 9^th^, 2019. The deadline for filing the appeal was January 7, 2019.
3For the reasons that follow, the motion is denied.
4In this case S.G. the son of the appellant went to a party on the evening of December 21^st^ and had borrowed the appellant’s car. At the end of the evening S.G. had had a lot to drink and did not feel comfortable driving so he asked his friend to drive. The car was impounded because the friend that S.G. asked to drive had a suspended licence. S.G. had not asked to see his friend’s driver’s licence before letting him drive the car.
THE ISSUE TO BE DECIDED
5Has the appellant satisfied the Tribunal that it has reasonable grounds to support its request for an extension of time to file an appeal.
THE LAW
6Pursuant to section 9 of Ontario Regulation 631/98 (the “Regulation”) issued under the Highway Traffic Act, R.S.O. 1990, c. H. 8, (“the Act”) an appeal of an impoundment is required to be filed within 15 days after the day the vehicle was detained together with the payment of a fee established by the Tribunal.
7The 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 . . . 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.
8In 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.
9The 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.
DISCUSSION AND ANALYSIS
Did the appellant have a bona fide intention to appeal?
10The appellant submitted that she was told by the police that they had to go to the Justice of the Peace to get their car released. The appellant thought that because it was the Christmas and New Year season that the court offices wouldn’t be open, they thought they had to wait until January 2, 2019 for all of the government offices to open. They made this assumption but did not check to see if their assumption was correct.
11The appellant went to the Justice of the Peace on January 7^th^, 2019. At this point she was told that she would have to contact the Licence Appeal Tribunal (Tribunal). On January 8, 2019, the appellant contacted the Tribunal, received the appropriate information to appeal the impoundment of the vehicle and she filed the appeal documents by January 9th.
12The respondent submitted that the appellant could have dealt with this on any of the following dates: December 27, 28, 31 or January 2, 3, 4, but the appellant only dealt with the matter on January 7^th^, 2019, 15 days after the impoundment. I agree with the respondent’s submission on this point. To justify to the Tribunal that you have a “bona fide intention to appeal” you must demonstrate that by your actions. In the case before me, I find that the actions of the appellant do not demonstrate that “intention”.
13The appellant’s son S.G. testified that neither he nor his mother had any idea how to deal with the impoundment and they were not informed of the appeal process to the Tribunal until January 8, 2019. They waited five days from the day they “thought” they could appeal to actually go and address the issue of their car. This after already not having taken any action for a week.
14On cross-examination, the respondent asked the appellant’s son, S.G. if he had done an online search of what to do when your car is impounded. S.G. stated that he hadn’t. The respondent submitted that if you do this search one of the first things to come up is the Tribunal’s website.
15When considering the appellant’s bona fide intention the Tribunal looks at when the intention to appeal becomes evident. The appellant testified that she wanted to deal with this situation right away. Unfortunately, she did not go to see a Justice of the Peace (JP) until January 7. Even if I accepted that they thought government offices would be completely closed until January 2^nd^, 2019 they still waited an additional five days before going to the JP. I find this to demonstrate the opposite of a desire to deal with this situation immediately.
16There was no reason for the delay from January 2^nd^, 2019 to January 7^th^,2019.
17Also the appellant’s son S.G. is currently in University for business. He is intelligent, articulate and literate. I do not find it credible that he could not have found the accurate information on how to deal with the impoundment of the vehicle. I agree with the respondent that had they had an urgent interest in resolving this issue, S.G. could have done an online search and received the information immediately. He did not have to wait until January 7, 2019 and there was no credible reason given for why they waited that long.
18Based on the above, 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
19On the second factor, the length of the delay, it is my finding that the delay of 2 days in filing the Notice of Appeal was not significant. Even though the length of delay is not significant in this case the conclusion I have come to is based on the other factors, primarily the merits of this appeal.
Prejudice to the Registrar
20The third test is prejudice to the opposing party as a result of the delay that would have resulted from the extension of the appeal period. 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 these circumstances, I do not find that the Registrar would be prejudiced by the 2 day delay in filing of the Notice of Appeal.
Merits of the Appeal
21The 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.
22In my view, based on the facts presented at the motion, the appellant does not have a reasonable chance of succeeding on the appeal.
23In 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. The appellant indicated that the impounded vehicle was the main car that they used; however, they live in Brampton and they have access to transit and taxis. Therefore there was an alternative and on this alone the appeal would not likely succeed.
24The appellant disclosed at the motion that her husband has a car but they can’t use it because he takes it to work. She missed a doctor’s appointment because they did not have a car and S.G. missed his morning classes in Guelph. When questioned about the missed appointment the appellant said that another appointment can be made it just takes a long time to get to her doctor by transit. S.G. also admitted that he can take transit to school in Guelph which he does but to get to his morning classes he would have to wake up extra early and then it would be too long a day for him because he has evening classes as well.
25These reasons unfortunately do not negate that they had alternative methods of transportation to the vehicle. Section 10 (2) of the Regulation does not allow the Tribunal to consider “inconvenience” or “financial” loss to the owner of the impounded vehicle.
26Having 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.
ORDER ON MOTION
27Accordingly, the motion is denied.
LICENCE APPEAL TRIBUNAL
Zahra Dhanani, Member
Released: February 20, 2019