Appeal under subsection 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment pursuant to Section 55.1(3) of the Act
Between:
G.T.
Appellant
and
Registrar of Motor Vehicles
Respondent
MOTION DECISION AND ORDER
Panel: Maureen Helt
Appearances:
For the Appellant: G.T., Self-Represented
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: March 13, 2019
OVERVIEW
1This is a motion to extend the time to appeal a motor vehicle impoundment.
2The appellant’s vehicle was impounded on February 11, 2019 on the grounds that it was being operated by a driver whose driver’s licence was under suspension. The date on which the appellant filed a Notice of Appeal was an issue in dispute during the motion hearing and is set out more clearly below.
3In brief the appellant submits he filed his appeal with the Tribunal by fax on February 26, 2019, albeit it was after 5:00 p.m., and received a fax confirmation form. On March 6, 2019, as he had not heard from the Tribunal, he called the Tribunal and was advised the faxed Notice of Appeal was not received. He was given a different fax number and faxed the Notice of Appeal to the Tribunal on March 6, 2019 and he emailed the Transmission verification attempt from February 26th, 2019 to the Tribunal on March 7, 2019. The respondent takes the position the appeal was filed March 6, 2019, eight days outside of the fifteen day timeline.
4For the reasons that follow, the motion is allowed and this appeal shall be heard as soon as the Tribunal can schedule a hearing. A case conference hearing is scheduled for March 19th at 9:30 am.
ISSUE TO BE DECIDED
5The issue to be decided on this motion is whether the appellant has established reasonable grounds to support an extension of time.
LAW
6Pursuant 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.
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, 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 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.
8As set out by the Registrar’s representative, determining if there are reasonable grounds for an extension is not an exact formula. This Tribunal has consistently considered the following criteria in making a determination as to whether there are reasonable grounds to grant an extension of time:
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 onus is on the appellant to establish that there are reasonable grounds for the granting of the extension. I agree with the respondent’s submission that the analysis requires a balancing of the conclusions reached when applying the facts of the case to the factors.
DISCUSSION AND ANALYSIS
10I have considered the submissions made by the parties and the evidence before me and have determined that there are reasonable grounds for granting the extension. I provide a summary of my consideration of each of the four criteria below.
Did the appellant have a bona fide intention to appeal?
11The issue of the appellant’s intention to appeal was the subject of most of the submissions made during the hearing. The appellant stated that he always had the intention to appeal although he acknowledged it took him some time to understand the process for appeal. As English is his second language he did not readily understand the process.
12The appellant gave evidence that he performed google searches, attended at the court house in Barrie and sought assistance from others about the appeal process. He also stated that he did in fact file a Notice of Appeal with the Tribunal on February 26th, 2019 using the following fax number 416-314-4270. He stated the fax went through. As he didn’t hear from the Tribunal for a few days he called the Tribunal office and was told the Tribunal was not in receipt of his appeal and that the fax number he used was not working. This information about the fax number not working was confirmed by the case management officer.
13The appellant testified that he was given another number, 416-325-1060 and tried to fax his appeal through to this number but it was constantly busy. He explained that he called the Tribunal and was told to try again. His appeal was faxed through to the Tribunal on March 6, 2019 and this is the Notice of Appeal which was before me.
14The respondent argued that the only notice of appeal filed by the applicant that is on the record in this matter has a fax date stamp of March 6, 2019 which demonstrates that the appellant does not satisfy the criteria of a bona fide intention to appeal. Mr. Kapur further submitted that the 15-day period to submit an appeal is intended to allow for appellants to consider their case, determine if they want to appeal, and follow the process to file an appeal. As such, had the appellant had a bona fide intention to appeal he would not have filed eight days late.
15In reviewing the materials submitted by the appellant, I note that there is in fact a Transmission Verification Report dated February 26, 2019 7:38 pm. The fax number is 416-314-4270, belonging to the Tribunal, and there were seven pages recorded as being transmitted. For whatever reason the facsimile did not go through but that is not the fault of the appellant.
16This evidence, in my view, clearly supports the appellant’s version of events and demonstrates the appellant’s intention to appeal the matter within the 15-day time period.
The length of the delay
17On the second factor, the length of the delay, as I have found that the appellant did in fact attempt to file his appeal within the 15-day time period, I find that there was no delay in his attempt to file. The delay in the Notice of Appeal being received through the Tribunal was as a result of an inoperative fax number as opposed to indifference on the part of the appellant in meeting the timeline.
Prejudice to the Registrar
18The third factor is prejudice to the respondent. The respondent put forward two cases which clearly support the respondent’s position that delay of even a short duration can result in prejudice1. The Tribunal is mindful that the impoundment period is 45 days. This Tribunal has in the past has found that even a four-day delay in filing a Notice of Appeal can result in prejudice to the respondent; however, in this case the delay is through no fault of the appellant. I find that the prejudice to the appellant in not allowing him to proceed, in these particular circumstances, outweighs any prejudice to the respondent.
Merits of the appeal
19The final factor is a consideration of the merits of the appeal. This does not require me to make a determination on the merits, but only to assess whether the appellant has demonstrated there is some merit to the appeal. It is not clear to me what grounds of appeal are being alleged, but based on the evidence before me I believe the appellant is arguing that the impoundment will result in exceptional hardship.
20The respondent submitted that the appellant has no reasonable chance of success on appeal as he failed to establish any of the grounds for appeal as set out in the legislation. While this may or may not be true, however without a full record of the evidence I am not in a position to make this assessment.
21In considering each of the four criteria listed above I find that an extension should be based on the justice of the case.
ORDER
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 his appeal is granted.
b. The parties, on consent, will proceed to a case conference on Tuesday March 19 at 9:30 a.m.
LICENCE APPEAL TRIBUNAL
Maureen Helt, Vice Chair
Released: March 15, 2019