Date: 2019-03-21

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(3) of the Act.

Between:

A.P.

Appellant

and

Registrar of Motor Vehicles

Respondent

MOTION DECISION AND ORDER

Adjudicator: Marisa Victor, Member

Appearances:

For the Appellant: P.S.P., Agent

For the Respondent: Sonia DeSantis, Agent

Heard by teleconference on: March 14, 2019

REASONS FOR DECISION ON MOTION

Overview

1The appellant’s vehicle was impounded on January 14, 2019 when his son, P.S.P. was driving with a suspended licence. The appellant, represented by P.S.P., filed for an appeal on February 26, 2019, well past the 15-day appeal period allowed. At the time this motion was heard the 45-day impoundment had already passed.

2The Licence Appeal Tribunal (the LAT) finds that the appellant has established reasonable grounds for an extension of time to file the appeal. The motion is granted.

ISSUES

3The issue before the LAT is whether the appellant has established a reasonable ground for an extension of time to file an appeal.

LAW

4Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, allows for an extension of time when there are reasonable grounds for applying for an extension either before or after the expiration of the limitation period.

5In order to determine whether there are reasonable grounds for an extension, the LAT should consider four factors as stated in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492. These factors assist the LAT in determining whether justice is served in this case. They 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.

6The duty is on the appellant to provide evidence that can support one or more of these factors. A weaker fact situation under one factor may be balanced by stronger fact situations under one or more of the remaining factors.

EVIDENCE

7The appellant was represented by his son, P.S.P., who was also the suspended driver who was driving the vehicle at the time of impoundment. P.S.P. appeared on his father’s behalf as the appellant is in treatment for lung cancer.

8P.S.P. provided a written submission and testified to the events that led to the impoundment. The appellant’s old vehicle had recently stopped working and so he had purchased the impounded vehicle three days before the impoundment. The vehicle was purchased so that the appellant would have reliable transportation to the hospital. The appellant was required to travel Newmarket and Toronto for medical appointments.

9P.S.P. testified that he was driving the appellant’s vehicle to have its safety checked when the impoundment occurred. He stated he did not know his licence was suspended at the time, otherwise he would not have been driving.

10P.S.P. stated that the officer at the scene was unable to tell P.S.P. how long the impoundment was for or why P.S.P.’s licence was suspended. The officer advised P.S.P. that he would be informed at a later date. The officer also advised P.S.P that he could appeal the impoundment before a Justice of the Peace (JP) at the courthouse.

11A few days later the appellant received a notice of impoundment advising him his car would be impounded for 45 days, but the document lacked appeal details.

12P.S.P. then made inquiries as to why his licence was suspended and was told it was due to unpaid fines (this later proved to be partially incorrect). He stated he had been ill over the last year and had fallen behind on his finances and did not know he had unpaid fines. Prior to seeing the JP, he made payments towards his fines and received an extension of time to pay what remained outstanding.

13Then, P.S.P went to the Newmarket courthouse to see a JP. Only once he met with the JP, some 11 days after the impoundment, was he informed that the LAT appeal process was the only option. P.S.P. states that the JP did not inform him of the 15-day deadline for applying for an appeal.

14P.S.P. then went online to download the LAT forms. He testified that he contacted the LAT shortly thereafter and sought assistance from the case management officer. He states the first time he sent in his appeal documents, he did so incorrectly and he had to refile. He states he was also delayed in finalizing the documents as he had to care for his sick father. It is unclear when the appellant contacted the LAT or when documents were first filed. However, P.S.P.’s appeal documents are signed January 30, 2019 and February 27th, 2019. The appellant’s appeal documents as filed as exhibits were received by the LAT on February 26 and February 27, 2019, respectively.

15He also stated that although the LAT form asks if the appeal was filed within 15 days, there is only a box to check. The appeal form itself does not say you cannot appeal after 15 days. There was no further evidence regarding what information the LAT provided the appellant nor whether the 15-day appeal deadline was explained.

16P.S.P. testified that the appellant had to borrow another vehicle from his daughter in order to get to the hospital and back. The appellant had to go to the hospital on a nearly daily basis during the impoundment period for a biopsy and other tests relating to his recent lung cancer diagnosis. He then began chemotherapy on March 4, during the impoundment period. P.S.P. accompanied his father on all these hospital visits.

17P.S.P. took out a loan to get the vehicle out of the impoundment on the 53rd day of the impoundment. The impoundment fee was about twice the value of the purchase price of the car. The loan P.S.P. obtained has an interest rate of 46 percent.

18P.S.P. was also misinformed as to the reason for his licence suspension resulting in the impoundment. During the motion, the respondent advised P.S.P. that although he did have unpaid fines, this was not the reason for the licence suspension resulting in the impoundment. The respondent advised P.S.P. that his suspension was due to failure to complete a remedial program following a Criminal Code charge.

19The respondent provided a copy of the Notice of Impoundment which indicates an impoundment date of January 14, 2019 and a release date of March 7, 2019.

20The respondent’s agent agreed that it was possible that the LAT appeal information was not printed on the back of the form P.S.P. received in the mail. P.S.P. confirmed this.

21The respondent’s submission was that:

a. The delay in perfecting the appeal is excessive and shows a lack of bona fide intention to appeal within 15 days;

b. The respondent faces significant prejudice as the entire 45-day impoundment time period has already elapsed;

c. The merit of the appeal is lacking, the appellant has survived the impoundment period through the use of an alternative vehicle. Further, vehicle impoundment fees are not to be considered.

ANALYSIS

22The first factor I must consider is whether there was a bona fide intention to appeal. I find that the appellant and his son took the following steps:

a. P.S.P. asked the officer at the scene about appealing the impoundment;

b. P.S.P. attended at the courthouse and scheduled a meeting with a JP;

c. P.S.P. was assisted by the JP, 11 days after the impoundment; and

d. P.S.P. contacted the LAT shortly after meeting the JP and was assisted by the LAT in filling out appeal forms.

23The one month in delay in filing documents after the appeal period had expired were caused by errors as well as by the requirement that the appellant attend hospital on a nearly daily basis in order to prepare for chemotherapy. P.S.P. went with his father to all the medical appointments.

24Finally, the appellant and P.S.P. state they were not informed that there was a 15-day appeal period which is supported by the lack of written appeal information they were given following the impoundment. The appellant correctly points out that the LAT appeal form only requires an appellant to check a box stating whether the appeal was filed within 15 days. The appeal form does not state that the appeal must be filed within 15 days of the impoundment.

25I find the appellant had an intention to appeal from the moment of the impoundment as shown by P.S.P. asking the officer what the appeal process was. The appellant was then disadvantaged because of incorrect and missing information. The police officer incorrectly told P.S.P. to speak with a JP. This was compounded by the notice of impoundment which failed to give appeal information. Eleven days after the impoundment, the JP advised the appellant to appeal to the LAT. The rest of the delay is attributed to the fact that the appellant was attending hospital on a daily basis to obtain treatment for lung cancer and documents were improperly submitted to the LAT requiring them to be corrected and re-filed.

26The second and third factors I must consider are the length of delay between the date of the expiry of the fifteen-day appeal period and the date at which the appeal was submitted together with any prejudice this may cause. These factors favour the respondent. There is no doubt this there was a lengthy delay and that this prejudices the respondent. This is because the 45-day impoundment period was nearly complete at the time the appeal was filed. Therefore, if the appeal is allowed, the Registrar is required to cover the full cost of the impoundment. One of the reasons for the expedited nature of the appeal process in these cases is to limit the costs faced by the Registrar, should the appeal be successful.

27The fourth, and in this case, the most significant factor, I must consider is whether the proposed appeal lacks merit. As this was not a full hearing of the case, I cannot say whether the appeal will be successful. However, I find there is a possibility the appeal may be successful on either the grounds of due diligence and exceptional hardship.

28On the issue of due diligence, it appears that P.S.P., the suspended driver, was unaware his licence was suspended. It remains to be seen what due diligence steps the appellant took to confirm his son’s ability to drive. It is possible that the appeal is successful on this ground.

29On the issue of exceptional hardship, one aspect of the test is that the loss of the vehicle creates a threat to health or safety of a person ordinarily transported by the motor vehicle. The appellant, who was recently diagnosed with lung cancer, attended hospital on a daily basis in preparation for chemotherapy treatment which also began during the impoundment period. The vehicle he purchased, three days before the impoundment, was to obtain reliable transportation to medical appointments and hospitals in Newmarket and Toronto. Although the appellant appears to have borrowed another vehicle during the impoundment period, which could mean his appeal is unsuccessful, I do not know the full details of that arrangement. I recognize the seriousness of the appellant’s condition and that there may be medical grounds upon which his appeal could succeed.

30Considering the four factors together, and in particular the possibility that the appeal may have merit, I find that it is reasonable to grant an extension under these extenuating circumstances.

CONCLUSION

31The Tribunal finds that the appellant has shown reasonable grounds for an extension of time to file his appeal.

ORDER

32The motion for an extension of time to file the appeal is granted.