Tribunal File Number: 11906/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:
J.A.
Appellant
(Moving Party)
and
Registrar of Motor Vehicles
Respondent
(Responding Party)
DECISION AND ORDER ON MOTION
Adjudicator: Zahra Dhanani
Appearances:
For the Appellant: Doug LaFramboise, Counsel the Appellant
For the Respondent: Sonia De Santis
Heard by Teleconference on: March 21, 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 truck was impounded on January 25th, 2019 because it was being operated by a driver (the appellant) whose driver’s licence was under an interlock condition to have a breathalyser in his vehicle when he was driving it and the condition was not met when his car was stopped by the police.
3The Tribunal received the appellant’s Notice of Appeal on February 28th, 2019. The deadline for filing the appeal was February 11, 2019. The appellant states that he sent it in on February 19th, 2019 but that the Tribunal did not receive it.
4In this case the appellant is part owner of the company Royal Brothers Logistics. The truck that he operates is owned by the company with the plates registered to the appellant. The appellant’s business is to move loads across long distances using this truck.
5The appellant was on a moving job going from Manitoba to Ontario, accompanied by two other drivers. The appellant was previously convicted of a driving under the influence of alcohol offence (DUI). The sentence for that conviction included the above mentioned interlock condition (that he could only drive if he had a breath testing kit in his vehicle at the time).
6The night that the appellant’s truck was impounded, he had been parked in a parking lot so that the other drivers could rest. The police approached his truck and asked him to move it because it was blocking their operations. As he did this he bumped the truck into a stationary vehicle, the police then checked his driver’s licence and found that his licence had the attached condition. The police did not find a breath testing kit in the truck, so they charged the appellant and detained the vehicle to be impounded.
7For the reasons that follow, the motion is allowed.
THE ISSUE TO BE DECIDED
8Has the appellant satisfied the Tribunal that it has reasonable grounds to support his request for an extension of time to file an appeal?
THE LAW
9Pursuant 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.
10The 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.
11In 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.
12The 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?
13The appellant was not at the motion hearing because he does not speak English, however an affidavit with his evidence had been filed and was accepted as his testimony. Counsel argued the motion on his behalf.
14The appellant submitted that he was not given the paperwork by the police on the night of the impoundment, which would have his file number on it and allow him to submit his appeal. He also submitted that the towing company would not give the number to him. On further inquiry he was told by the police that he had to make a freedom of information request to get the number.
15The appellant has counsel retained for all of his business and other affairs and asked him to act on this matter immediately and intended for there to be action on the impound of his truck as soon as possible.
16Counsel submitted that the appellant is totally dependent on his truck as that is his only source of income. The appellant urgently wanted his truck back. Despite several inquiries the appellant did not receive the file number from the police until February 12th, 2019. He had made a Freedom of Information request and that is how he finally received the information from the police. At this point the deadline to file the appeal had passed.
17If I accept that the appellant first submitted his appeal on February 19th, 2019 (a fax transmission receipt suggesting this was the case was submitted as evidence by the appellant), this is still seven days from the time he received the file number to file the appeal. When I asked counsel why it took another seven days, he submitted that they had to put the affidavit together and get the other documents to support their appeal. There is nothing in the appellant’s affidavit to explain this issue.
18The Tribunal received the appeal on February 28th, 2019. This is a further seventeen days from the appeal deadline.
19To justify to the Tribunal that you have a “bona fide intention to appeal within the 15 day period” you must demonstrate this by your actions. In the case before me, I find that the actions of the appellant or counsel do not demonstrate that “intention”.
20For the purpose of this decision I will accept that the appellant tried to submit the appeal on February 19, 2019.
21I find that the appellant has failed to demonstrate why there was a delay from February 12th, 2019 the date they obtained the file number and February 19th, the date the appeal was faxed to the Tribunal. The evidence is that counsel knew that they would be submitting an appeal as of January 26th, 2019. An affidavit could have been prepared between then and February 12th, 2019.
22Counsel could also have filed the basic appeal form without any supporting documents at that time and filed the evidence later.
23Based on the above, I find the appellant did not demonstrate a bona fide intention to appeal the matter within the 15-day appeal period or as close to that date as possible.
The Length of the Delay
24On the second factor, the length of the delay, it is my finding that the delay of eight days (between the 11th and 19th) in filing the Notice of Appeal was not significant. The Respondent did not provide any evidence that the delay would be prejudicial to them.
Prejudice to the Registrar
25The 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. The respondent did not make any submissions on this point and therefore I do not find that the Registrar would be prejudiced by the eight-day delay in filing of the Notice of Appeal.
Merits of the Appeal
26The 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 his Notice of Appeal only one ground of appeal was raised: that the impoundment will result in exceptional hardship.
27In my view, based on the facts presented at the motion, the appellant does have some chance of succeeding on the appeal.
28Section 10 of the Regulation sets out the criteria and factors that the adjudicator must consider in determining whether exceptional hardship will result from an impoundment.
29The first requirement set out in s. 10(1) of the Regulation is that there is no alternative to the impounded vehicle. If there is a finding that there is an alternative to the impounded vehicle, then I need not consider any other requirements as the vehicle owner will not have established the first requirement to show exceptional hardship.
30In limited circumstances described below, I may also consider whether the impoundment will result in the following types of losses, listed in s.10 (2) of the Regulation:
(a) financial or economic loss to any person;
(b) loss of employment or employment opportunity to any person; or
(c) loss of education or training or of an educational or training opportunity to any person
31The financial, employment and educational losses listed above may only be considered if all of the criteria listed in s.10(3) of the Regulation are met:
(a) No alternative to the impounded motor vehicle is available;
(b) The loss will be immediate, significant and lasting;
(c) The impact of the loss will be upon a person ordinarily transported by the motor vehicle; and
(d) the impact of the loss:
i. will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and
ii. will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d).
32Subsection 10(4) of the Regulation states that in order to show that there is no alternative to the impounded vehicle, the owner:
[M]ust demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.
33The appellant does not have another vehicle to use for personal reasons or otherwise but he lives with his wife and children in Brampton, where they have access to transit and taxis.
34Therefore there is an alternative for his personal needs, on this alone the appeal would not likely succeed.
35However without the vehicle the appellant cannot work. While the Tribunal cannot look at “financial inconvenience” the ability to work could arguably be seen as an essential ingredient of daily requirements of living and qualify as “financial” loss.
36The appellant drives this truck and moves loads between long distances. He does not speak English and this work does not require him to; he has not worked at all while his truck was impounded. In his affidavit the appellant submitted that his leasing costs are $3600/month, his insurance costs are $2476/month and then the added impoundment fee will be a loss of $7275.50. Without use of his truck the leasing and insurance fees are paid but without use of his vehicle so technically a loss. This will be a total financial loss of $16,314.50/month for the period of the impound of his truck. This does not include the income he would not generate for that period.
37Section 10 (3) (d) (i) of the Regulation does not allow the Tribunal to consider “financial” loss to the owner of the impounded vehicle unless the loss will be on a person other than the driver who was under suspension at the time the vehicle was impounded. The interpretation of s. 10(3)(d)(i) may be determined at the hearing.
38In the case before us the driver was the owner, but he was not under suspension; the reason the car was impounded was as a result of the interlock condition he was under. The legislation or case law at this point does not address this question and therefore it could go in the appellant’s favour. It is beyond the scope of this decision to make a determination on that issue however it is reasonable enough to say that the appellant has a viable argument on this issue.
39Having assessed the submissions of the parties in the context of the applicable factors it is my determination that the justice of the case does warrant extending the time period for filing the motion. Although I have found that the appellant did not demonstrate a bona fide intention to appeal within the 15 day period and that the delay will not prejudice the respondent, I make this decision primarily because there is some possibility that the Tribunal could make a finding of exceptional hardship based on the facts presented at the motion.
ORDER ON MOTION
40Accordingly, the motion is allowed.
LICENCE APPEAL TRIBUNAL
Zahra Dhanani, Member
Released: April 12, 2019