Tribunal File Number: 11919/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:
A.M.
Appellant (Moving Party)
and
Registrar of Motor Vehicles
Respondent (Respondent on Motion)
DECISION AND ORDER ON MOTION
Adjudicator: Jacqueline Castel
Appearances:
For the Appellant: Self-represented
For the Respondent: Sonia De Santis
Heard by Teleconference on: March 26, 2019
REASONS FOR DECISION ON MOTION AND ORDER
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 February 9, 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 for 45 days where a police officer is satisfied that the licence of the driver of the vehicle is under suspension.
3The vehicle was released to the appellant on March 25, 2019, when the 45 days elapsed, upon payment of the applicable impoundment fees by the appellant.
4The Tribunal received the appellant’s Notice of Appeal on March 6, 2019. The deadline for filing the appeal was Saturday, February 23, 2019. As such, the appeal was filed 11 days late.
5For the reasons that follow, the motion is denied.
THE ISSUE TO BE DECIDED
6The 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.
THE LAW
7Pursuant 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.
8The 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.
9In 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.
10The 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?
11The appellant stated that he was not aware that he had a right to appeal the impoundment. He explained that the letter he received from the police stated that his vehicle had been impounded and provided contact information for the impound facility; there was no mention in this letter of the Tribunal or of a right to appeal the impoundment. According to the appellant, the impound facility did not notify him of his right to appeal the impoundment. Ms De Santis stated that the respondent mailed the appellant the Notice of Impoundment, which includes an explanation of the appeal process, on February 11, 2019, but the appellant denied ever receiving this document.
12The appellant eventually did an on-line search and came across two expired links pertaining to the right to appeal an impoundment. When these links did not work, he called a help-line and the representative told him he would send him the appropriate form for appealing the impoundment. He waited three days for the form to arrive, and when it did not arrive, he called the help-line again. This time the representative sent him the Notice of Appeal form which he completed and submitted.
13The appellant did not realize that he had to fill out another Notice of Motion form if the Notice of Appeal was submitted more than 15 days after the date of impoundment. He stated that the Notice of Appeal form does not refer appellants to the Notice of Motion form, if their appeal is filed more than 15 days after the date of impoundment.
14The appellant emphasized that he is self-represented and that this is the first time his vehicle has ever been impounded. He stated that if he had been aware of the appeal process from the outset, he would have filed his Notice of Appeal within the 15 day time period.
15Based on the above, I find the appellant had a bona fide intention to appeal the matter within the 15 day appeal period.
The length of the delay
16On the second factor, the length of the delay, it is my finding that the delay of 11 days in filing the Notice of Appeal was not overly significant in the circumstances. Four of the eleven dates were weekends when the Tribunal’s offices would have been closed.
Prejudice to the Registrar
17The third test is prejudice to the opposing party. If the appellant is successful on the merits of her appeal, the respondent would be responsible for the fees payable for towing and storage for the 45 day period of impoundment. Ms De Santis conceded that there is no prejudice to the respondent in this case. As such, the Tribunal agrees that the Registrar would not be prejudiced by the late filing of the Notice of Appeal.
Merits of the appeal
18The 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.
19In my view, based on the facts presented at the motion, the appellant does not have a reasonable chance of succeeding on the appeal.
20The appellant acknowledged in his Notice of Appeal that he did not exercise due diligence in attempting to determine that the driver of the vehicle, at the time of the impoundment, had a valid driver’s licence.
21The appellant wishes to appeal based on exceptional hardship, stating in the Notice of Appeal that the impoundment fees will be “financially devastating”.
22Section 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 no alternative to the impounded vehicle, it need not consider any other requirements.
23In this case, the appellant disclosed at the motion, and in the Notice of Appeal, that he has an alternative to the impounded vehicle: he owns two vehicles. He typically uses the impounded vehicle for work purposes. His second car is for personal use.
24The appellant also disclosed that he was able to rent a vehicle, during the period of impoundment, because he was in an accident with the vehicle he uses for personal purposes on the same evening that his work vehicle was impounded. The appellant stated that the cost of the rental vehicle was covered by his insurance policy. This rental vehicle represented an alternative to the impounded vehicle.
25Further, the appellant stated that he was able to pay the impoundment fees by borrowing money from family.
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. Specifically, the appellant would not satisfy the test that there is no alternative to the impounded vehicle.
ORDER ON MOTION
27Accordingly, the motion is denied.
LICENCE APPEAL TRIBUNAL
Jacqueline Castel, Member
Released: March 27, 2019