Date: 2019-03-27

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act for driving while suspended.

Between:

A.J.

Appellant

and

Registrar of Motor Vehicles

Respondent

ORDER ON MOTION

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: J.A., Agent

For the Respondent: Stella Velocci, Agent

Heard by teleconference: March 7, 2019

ORDER ON MOTION

Overview

1A hearing was held on March 7, 2019 by teleconference to consider the appellants appeal of the impoundment of his vehicle on December 11, 2018 by the Registrar of Motor Vehicles. The appellant’s Notice of Appeal and Notice of Motion to extend the time for appeal were received by the Tribunal on January 22, 2019.

2The appellant brought a motion for an extension of time for this filing of his appeal. At the commencement of the hearing and prior to determining the substantive issues on appeal, the parties agreed to provide evidence and submissions on whether the Tribunal ought to extend the time for the appellant to file the appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) from the impoundment of his vehicle.

3On consent of both parties, the Tribunal heard the appellant’s motion for extension of time and the appeal at the same time. The Tribunal indicated that if the motion for extension of time to file the appeal was unsuccessful, there would be no decision on the merits of the appeal. If the motion for extension was successful then there would be a decision made by the Tribunal on the motion and also on the merits of the appeal.

4The grounds for the appeal are that the appellant exercised due diligence to determine whether the driver’s licence of the driver of the vehicle at the time of impoundment was not then under suspension and that the impoundment is an exceptional hardship on the appellant.

ISSUES:

5The issues to be addressed are:

a. Is the Tribunal satisfied that there are reasonable grounds for applying for the extension?

b. If the time for filing of the appellant’s appeal is extended, did the appellant exercised due diligence to determine whether the driver’s licence of the driver of the vehicle at the time of impoundment was not then under suspension or alternatively, did the impoundment result in exceptional hardship on the appellant.

CONCLUSION

6I find that the appellant failed to establish reasonable grounds for an extension of the time to file his appeal. The appellant’s motion is dismissed. As the appellant’s motion for an extension of time is dismissed, I do not need to consider the merits of the appeal except as they relate to the appellant’s motion.

LAW AND ANALYSIS:

Is the Tribunal satisfied that there are reasonable grounds for applying for the extension?

7Section 9 of the regulation Long-Term Vehicle Impoundment Under Section 55.1 of the Act, O Reg 631/98 states that an appeal of an impoundment under s. 55.1 of the Act must be filed within 15 days of the impoundment.

8The appellant’s motion is to extend the time for filing his appeal. Pursuant to section 7 of the Licence Appeal Tribunal Act, the Tribunal may extend the time to file an appeal if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief.

9To succeed in his motion the appellant must show that there are reasonable grounds for the Tribunal to grant the extension of time. The Tribunal must consider the following as set out in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.) when deciding whether to grant an extension of time to file an appeal:

1. The existence of a bona fide intention to appeal [within the appeal period];

2. The length of the delay;

3. Prejudice to the other party; and

4. The merits of the appeal.

10The Divisional Court determined that the factors to be considered are simply a guide to assist in determining the justice of the case.

EVIDENCE

11The appellant’s vehicle was impounded on December 11, 2018. The appellant’s Notice of Appeal and Notice of Motion to extend the time for appeal were received by the Tribunal on January 22, 2019. The appellant’s agent submitted that he is the appellant’s brother and advised that as the appellant is in British Columbia he would not be testifying at today’s hearing as there is a time change. As such the witness for the appellant was his agent J.A.

12J.A. testified he was the person driving the car on December 11, 2018 when it was impounded. J.A. said he knew his driving licence had been suspended in 2017 for a year but was unsure of the date that the suspension ended. He completed a change of address form and paid driving fines of $198.00 at an MTO office on October 15, 2018 and was given an Application for Ontario Driver’s Licence dated October 15, 2018 showing a fee payment had been made of $198.00 and a Change of Address Confirmation dated October 15, 2018 which states “This is not a driver’s licence…If you are eligible for a new drivers licence it will be mailed to you…” Copies of both of these documents were attached to the Notice of Appeal. J.A. also said he was given a temporary drivers licence and he believed his licence had been reinstated on October 15, 2018. He testified that his girlfriend was with him at the time and she also believed his licence had been reinstated. The girlfriend did not testify at the hearing.

13J.A. said he asked appellant if he could borrow his motor vehicle and said that the appellant asked him to show proof that his licence was reinstated. J.A. showed him the documents he had received from the MTO office including the temporary licence. J.A. said the appellant looked at these documents, believed J.A.’s licence had been reinstated and that this demonstrated due diligence by the appellant.

14When the vehicle was stopped by the police on December 11, 2018 J.A. testified that the police officer took away the temporary licence from him because the officer said it must be a forgery and J.A. was unable to get it back for the hearing despite leaving phone messages for the police officer to call him. There is no evidence that the appellant summonsed the police officer to testify at the hearing. J.A. did not keep a copy of the document he believed was a temporary licence given to him by the MTO. J.A. testified that he had no intention to break the law and would not have driven if he knew his licence was still suspended on December 11, 2018. J.A. testified that he drove the appellant’s vehicle on December 11, 2018 because he was led to believe by the MTO that he had a licence. J.A. admitted that the certified copy of his driving record filed by the Registrar shows his driving licence was suspended on December 22, 2017, that the scheduled reinstatement date was December 22, 2018 and that the MTO record does not show that he was issued a temporary driving licence.

15After the impoundment of the appellant’s vehicle, J.A. testified that the appellant tried to do the appeal himself but could not. J.A. said that he himself went on line, printed off the forms but there was a postal strike. J.A. then checked on line for the forms for an extension of time, called the Tribunal and submitted the forms on January 22, 2019 for the motion for extension of time and for the appeal. J.A. testified that the appellant intended to appeal about a week after the impoundment but did not know what to do and there was a postal strike. J.A. said he and his brother talked to a paralegal who helped fill out the forms.

16With respect to the merits of the appeal, J.A. said the impoundment was an exceptional hardship on him because he lost a $20,000.00 commission from a sale he was working on the date of the impoundment and he had to pay $400.00 to take an UBER home after the vehicle was impounded. J.A. said that the impound fees are a financial hardship on him because the appellant expects him to pay these fees and this has put him behind in his rent and he has had to get a grace period from his landlord. J.A. testified that during the impoundment of the vehicle he walked to work and had to take his son to school on public transit which was a hardship because it was winter. J.A. said the appellant got UBER rides, walked and got rides from friends to where he needed to go until the vehicle was released to the appellant on January 25, 2019.

17The respondent submits that the appellant has not demonstrated a good faith or a bona fide intention to appeal within the statutory deadline. I agree.

Analysis

18The motion for an extension of time was heard. The appellant was represented by an agent who submitted that the time for the appeal should be extended. There was no affidavit or written evidence filed in support of the appellant’s motion pursuant to Rule 15 of the Safety, Licencing Appeals & Standards Division Common Rules of Practice & Procedure October 2, 2017 other than the Notice of Motion itself and the Notice of Appeal and attached documents received by the Tribunal January 22, 2019.

19The appellant did not file a Notice of Appeal and Notice of Motion to extend the time for appealing with the Tribunal until January 22, 2019 which is 43 days after the impoundment of the vehicle. There is no documentary evidence that the appeal documents were mailed to the Tribunal earlier than January 22, 2019. J.A. admitted that he called the Tribunal and filed the appeal and motion on January 22, 2019 – all on the same day.

20Based on all of the evidence I do not find that the appellant has demonstrated a bona fide intention to appeal within the fifteen day appeal period for the following reasons. The time for filing an appeal to this Tribunal expired on December 28, 2019. The appellant filed his appeal on January 22, 2018. The Notice of Appeal is dated December 28, 2019 even though J.A. testified that the appellant formed an intention to appeal about a week after the impoundment. A week after the impoundment was December 18, 2019.

21That the Notice of Appeal was completed December 28, 2018 is not credible given J.A.’s testimony that he and his brother completed the appeal and motion documents and sent them to the Tribunal on January 22, 2019 – all on one day. The appellant did not testify and therefore there is no corroboration of J.A.’s testimony by the appellant, the only other person who was involved. The explanation for the delay by J.A. is that they did not know how to appeal and there was a postal strike. It is up to the appellant to find out how to appeal and it is not an excuse for delay in appealing to say they did not know how to appeal. This information is available to the public on the Tribunal’s website. J.A. testified about going online to get the Tribunal forms and is therefore computer literate. J.A. was able to find out how to contact the Tribunal after going online and in fact called the Tribunal the day he filed the appeal and the motion for the appellant. A postal strike is not a reason for an extension of time. J.A. said they did call the Tribunal on January 22, 2019.

22I also do not find the merits of the appeal to be strong. The burden is on the appellant to prove that he exercised due diligence to determine whether the driver’s licence of the driver of the vehicle at the time of impoundment was not then under suspension and that the impoundment has been an exceptional hardship on the appellant. J.A. said that the appellant saw the temporary licence and therefore exercised due diligence. I find this unlikely as J.A.’s testimony with respect to being issued a temporary licence is not credible.

23This is unlikely to be satisfied by J.A.’s testimony that he was misled by the MTO and believed he had been issued a temporary drivers licence. J.A. did not submit a copy of the temporary drivers licence and there is no evidence that he was given a temporary drivers licence. He failed to summons the police officer who allegedly took the temporary drivers licence away from J.A. The certified copy of J.A.’s driving records does not show the issuance of a temporary driver licence. The Application for Ontario Driver’s Licence dated October 15, 2018 shows only that a fee payment had been made of $198.00 is not a driver licence. The Change of Address Confirmation dated October 15, 2018 which states “This is not a driver’s licence…If you are eligible for a new driver licence it will be mailed to you…” is not a driver licence. These documents could not reasonably mislead the appellant or J.A.

24The issuance of these documents to J.A. would not appear to be an “MTO error” as stated in the appellant’s Notice of Appeal based on J.A.’s testimony that he paid the $198.00 fee and completed a form to change his address on his licence on October 15, 2018. Further, there is no testimony from the appellant to corroborate what J.A. said about appellant’s due diligence and no direct testimony from the appellant as to what due diligence efforts he says he made to determine whether J.A.’s licence was under suspension.

25For all of the reasons noted above I find there is little merit to the appellant’s due diligence ground of appeal.

26I find that exceptional hardship argument is also not likely to succeed because both the appellant and J.A. found alternatives to the impounded vehicle during the impoundment period. J.A. testified that during the impoundment of the vehicle he walked to work and had to take his son to school on public transit which was a hardship because it was winter. J.A. said the appellant got UBER rides, walked and got rides from friends to where he needed to go until the vehicle was released to the appellant on January 25, 2019. As the appellant and J.A. both had alternatives to the impounded vehicle, I am unable to consider the appellant’s submissions related to financial or economic loss.

27The burden is on the appellant to demonstrate reasonable grounds to grant an extension of time.

28I have considered the following and conclude:

29The appellant has not demonstrated that he had a good faith or bona fide intention to appeal.

30The delay in submitting the Notice of Appeal and Motion to extend the time for appeal is significant. The Notice of Appeal and Motion to extend the time for appeal were received by the Tribunal three days before the vehicle was released to the appellant.

31The merits of the appeal are relatively weak.

32I find that the appellant has failed to establish reasonable grounds for an extension of time to file his appeal. The appellant’s motion is dismissed.

ORDER

33The appellant’s motion is dismissed.