Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment of a Motor Vehicle pursuant to section 55.1 of that Act
Between:
Rose-Marie Bobiwash
Appellant
-and-
Registrar of Motor Vehicles
Respondent
MOTION DECISION
Adjudicator: Jennifer Friedland, Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Overview
1The appellant has appealed the impoundment of her motor vehicle pursuant to s. 50.2 (1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the HTA).
2A hearing date had been scheduled, however at the case conference on this matter, the Registrar brought a motion to dismiss the appeal on the basis that it was not commenced within the period of the impoundment. The Registrar submits that the Licence Appeal Tribunal (the Tribunal) therefore lacks jurisdiction to hear the appeal.
3The Registrar requests, in the alternative, that if jurisdiction is found, the appellant be made to bring a notice of motion to extend the time for filing her appeal. The Registrar makes this request notwithstanding that the appellant had already brought a motion to extend the time for filing, to which the Registrar had consented. It now purports to withdraw that consent.
4For the reasons stated below, the Registrar’s motion to dismiss for lack of jurisdiction is dismissed. The Registrar’s request to make the appellant bring a further motion to extend the time for filing is also dismissed. The appeal will proceed on its merits. A hearing date will be scheduled pursuant to the Order that follows these reasons.
5As the vehicle was already out of the impoundment by the time of this case conference, the parties agreed that neither would suffer prejudice by any delay in rescheduling the hearing.
Background
6The appellant’s car was impounded on April 18, 2019 under section 55.1 of the HTA for being driven by a person whose licence was suspended. It was to be released on June 2, 2019.
7Section 50.2 (1) of the HTA governs who may appeal an impoundment. It states:
50.2 (1) The owner of a motor vehicle that is impounded under section 55.1 may, upon paying the fee established by the Tribunal, appeal the impoundment to the Tribunal. 2009, c. 5, s. 22.
8Ontario Regulation 631/98 describes how such an appeal is to be commenced. It states:
Appeals under Section 50.2 of the Act
- An appeal to the Tribunal under section 50.2 of the Act with respect to the impoundment of a motor vehicle under section 55.1 of the Act shall be commenced by filing with the Tribunal a notice of appeal, together with the fee established by the Tribunal, within 15 days after the day the vehicle was detained under subsection 55.1 (1) of the Act. O. Reg. 456/10, s. 2 (2).
Chronology of the Appellant’s Efforts to Appeal the Impoundment
9Pursuant to Regulation 631/98, the appellant needed to file her appeal by May 3, 2019. The appellant explained that she had attempted to meet that deadline but mistakenly tried to do so in-person at the Ministry of Transportation in her hometown, which was the wrong forum. Ultimately, she filed her Notice of Appeal with the Tribunal on May 6, 2019, together with payment of the required fee. She was subsequently informed by the Tribunal that her payment was declined.
10A Case Management Officer (CMO) at the Tribunal thereafter advised the appellant that her appeal was incomplete. She was advised that she would need to file a motion for an extension of time and submit the correct payment.
11On May 8, 2019, the Appellant brought the required motion for an extension of time to file her appeal. By email dated May 13, 2019, the Registrar consented to the late filing of her appeal.
12The appellant thereafter made a second effort to pay the required fee, using a different credit card, but again her payment was declined.
13There was then various correspondence sent from the CMO to the appellant on the issue of payment, advising that until the fee was paid, the appeal would be on hold. The CMO and the appellant also had a number of telephone conversations during this period. During one such call, on June 5, 2019, the appellant confirmed her intention to proceed with the appeal. She was also advised during that call that she would be responsible for the impound fees after the 45-day period, even if she were successful on her appeal. By this point, the 45-day period had expired. The vehicle’s release date was June 2, 2019.
14By email dated June 11, 2019, the CMO sent a final email to the appellant advising that if she still wished to proceed with the appeal, she needed to pay the required fee by June 19, 2019. She was told that her file might otherwise be closed.
15The appellant paid the required fee on June 16, 2019 and a notice of case conference was sent to the parties on June 20, 2019.
16On June 21, 2019, the Registrar filed its motion to dismiss the appeal for lack of jurisdiction. It also notified the appellant and Tribunal that it was withdrawing its consent to late filing. The Registrar indicated in its email that its consent was “with the understanding that the appeal would commence within a reasonable period.”
The Registrar’s Position until Bringing this Motion
17As noted, the Registrar consented to the appellant’s request for an extension of time to file her appeal. As well, the Registrar was copied on the emails sent to the appellant from the Tribunal regarding her appeal being on hold until the fee was paid. This includes being copied on the correspondence sent on May 10 and May 28, as well as on the last email from the Tribunal to the appellant sent on June 11, 2019, which was nine days after the period of the impoundment.
18At no time during this period did the Registrar complain about any delay caused by the appellant having not yet paid her fee, nor did the Registrar advise that it would seek to oust the Tribunal’s jurisdiction in this matter if the fee were not paid within the impoundment period. It further did not at any time purport to withdraw its consent to an extension of time to file the appeal if the fee were not paid by a certain date. Instead, the Registrar raised these issues only after the appellant had paid the fee and a notice of case conference had issued.
ANALYSIS
19The respondent submits that, pursuant to Regulation 631/98, an appeal commences with the filing of a notice of appeal and the payment of the fee established by the Tribunal. It argues that, in this case, due to the lateness of the appellant’s payment, the appellant’s appeal did not formally commence until June 16, 2019 when payment was received. This was after the 45-day period of impoundment.
20The Registrar argues that the Tribunal does not have jurisdiction to hear an appeal that is commenced outside of the period of the impoundment.
21The Registrar relies on G.R-M. v. Registrar of Motor Vehicles, 2019 ONLAT HTA MVIA 11739 (GRM) in support of its position. In that case, the appellant did not file a notice of appeal during the 15-day period nor during the period of the impoundment. The member decided that the Tribunal did not have jurisdiction to entertain a motion to extend the time for filing if the motion was not filed during the period of the impoundment. The Tribunal wrote:
[4] I am of the opinion that the Tribunal does not have jurisdiction to grant late filing of the appeal in this instance.
[5] The purpose of section 50.2 of the Act is to release a car from impoundment where an appellant has satisfied a ground for appeal. It is not to permit an appellant to seek compensation for an impoundment that has already expired. This is reflected in the powers of the Tribunal under the Act, which state in section 50.2(5) that the “Tribunal may confirm the impoundment or order the Registrar to release the vehicle.
[6] The impoundment of a car is a time-limited event. It is either for 45, 90, or 180 days. Section 50.2(1) of the Act utilizes the phrase “…the owner of a motor vehicle that IS impounded…” The use of the word is implies a present tense; an appeal that is contemporaneous with the term of impoundment. This, again, is in line with the purpose of this section, which is to provide a pathway to have an impounded car released.
[7] Therefore, an appeal under section 50.2 from an impoundment must be filed while the car is still impounded. The Tribunal’s jurisdiction with respect to hearing a motion for an extension of time to appeal is limited to an appeal or motion filed between 15 days after the impoundment (Ontario Regulation 631/98, section 9) and the release date of the vehicle.
[8] For the Tribunal to have jurisdiction to grant extensions of time to file an appeal for matters commenced after a vehicle has been released could lead to absurd results. Appellants could, theoretically, file an appeal today for an impoundment that expired ten years ago, and request an extension of time to file the appeal from the Tribunal. The outcome of any such appeal would be in conflict with a common sense interpretation of the purpose of section 50.2.
[9] In the current instance, the appellant filed her appeal on November 22, 2018, more than two weeks after her car was released from impoundment. The appellant did not provide the Tribunal with any argument or reason for why the Tribunal should have jurisdiction in this matter, besides her claim that she did not know there was an appeal process until two weeks after the car was released.
[10] With respect to the appellant, the common legal maxim “ignorance of the law is not an excuse” applies in this instance. In any case, whether or not the appellant was aware of her ability to file an appeal is not material to the question of whether the Tribunal has jurisdiction in this matter.
[11] Therefore, I find that the Tribunal does not have jurisdiction to grant an extension of time to appeal, or to hear the matter at all. [Emphasis in original]
22With respect, I disagree with the holding in GRM. In my view, the use of the present tense in s. 50.2 does not speak to the jurisdiction of the Tribunal to hear an appeal that may have been commenced after the period of impoundment. Rather, the timing of when an appeal may be commenced is governed by Regulation 631/98 at section 9 which requires an appeal to be commenced within 15 days from the day of the impoundment. The Tribunal however, has the discretion pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G (the “LAT Act”), to extend the time for filing past the 15 days where there are “reasonable grounds for applying for the extension and for granting relief.”
23In my view, it is section 7 of the LAT Act that governs whether an appeal may be commenced after the period of impoundment, it is not a question of jurisdiction. I am not persuaded that the use of the present tense in s. 50.2 should be relied on to limit the right to bring an appeal past the period of the impoundment if an extension of time is merited.
The Use of the Present Tense “is impounded”
24Applying the rules of statutory interpretation to the words, “is impounded,” I find that a literal temporal, definition of those words is not a sustainable interpretation. In my opinion, in this provision, as elsewhere in the same Part of the HTA, the reference to a vehicle that “is impounded” must be read to include a vehicle that has been impounded.
25The following example will show how the purpose of the statute would be confounded if the literal interpretation of “is impounded” were applied. Consider section 55.1 (27) which reads as follows:
(27) The owner of a motor vehicle that is impounded under this section may bring an action against the driver of the motor vehicle at the time the motor vehicle was detained under this section to recover any costs or other losses incurred by the owner in connection with the impoundment. 2009, c. 5, s. 24. (emphasis added).
26On a literal reading of this provision, an owner would be required to bring an action against the driver during the period of the impoundment. This would defeat the purpose of the provision. At that point in time, the full costs of the impoundment would not even have accrued.
27The provision allowing an appeal at s. 50.2 (1) of the Act reads the same way as 55.1(27):
55.1(27) The owner of a motor vehicle that is impounded … may bring an action ….
50.2(1) The owner of a motor vehicle that is impounded … may … appeal.
28Looking at the whole of the Act, therefore, I find that the phrase “is impounded” captures a vehicle that was impounded under 55.1 of the Act, even if the 45-day period has elapsed. To read the statute otherwise would be unduly restrictive, and would not contribute to the objective of the provision, which is to facilitate an appeal on limited grounds.
29I therefore find that the intent of s. 50.2(1), as with section 55.1(27) is to identify who may appeal. The use of “may” is prospective, in my view. It allows an appeal to be brought by a person whose vehicle is impounded pursuant to that section, but does does not speak to the timing of that appeal. The timing, as discussed above, is set out in the Regulation and specifies that an appeal shall be commenced with 15 days. However, this time limit may be extended pursuant to s.7 of the LAT Act on reasonable grounds.
The Tribunal’s Jurisdiction to Hear Appeals After the Period of the Impoundment
30I further see no basis to distinguish between the filing of an appeal after the period of the impoundment and the hearing of an appeal after the period of impoundment in terms of jurisdiction.
31I agree that an impoundment is a time limited event, and that the intent of the appeal provisions is to allow an avenue to have the vehicle released during that period, I also agree that the remedial powers of the act contemplate a vehicle that “is impounded.” Nonetheless this Tribunal regularly hears appeals after the vehicle has been released and without any objection from the Registrar that the Tribunal lacks the jurisdiction to do so.
32In those cases, even though the vehicle no longer “is impounded” the Tribunal still exercises its remedial powers, pursuant to s. 50.2 (5) to “confirm the impoundment or order the Registrar to release the vehicle.” If the vehicle is released the Registrar reimburses the appellant for the cost of the 45-day impoundment.
33See for example 11831 v. Registrar of Motor Vehicles, 2019 CanLII 29102, and 11834 v. Registrar of Motor Vehicles, 2019 CanLII 32282 for two recent examples of where a vehicle had been released by the time of the appeal, with no argument made on the part of the Registrar that the Tribunal did not have jurisdiction to hear the appeal. Rather, the Registrar has simply confirmed what the process would be if the appellant were to prove successful (namely that the Registrar would reimburse the appellant for the cost of the 45-day impoundment). I see no reason why the result in this case should be any different. In my view, if an appeal can be heard after the period of the impoundment, then it can equally be filed after the period of the impoundment, provided the test for an extension of time is met.
34In determining whether to grant an extension of time under s. 7 of the LAT Act, the Tribunal considers the following factors, which are not strict elements that must be met in each case, but rather a guide to determining whether the justice of the case requires that an extension be granted:
- The existence of a bona fide intention to appeal within the appeal period;
- The length of the delay;
- Prejudice to the other party; and,
- The merits of the appeal.
35In that regard, with respect to the Registrar’s argument that exercising jurisdiction after the period of the impound would lead to an absurd result because it could invite people to appeal 10 years after the impoundment, I disagree. A person who tried to appeal 10 years after the impoundment would have a steep hill to climb in meeting the test for an extension of time to appeal. There is no need to consider this a jurisdictional issue.
Conclusion on the Issue of Jurisdiction
36I am satisfied that the Tribunal has jurisdiction to hear an appeal notwithstanding that it was commenced outside the period of the impoundment. While the intent of these provisions may be to have an appeal start and finish within the period of the impoundment, this is not always the outcome in practice, and I do not agree that the phrase “is impounded” must be read to require that the vehicle still be impounded at the time of the appeal. As for whether it must still be impounded when the appeal is commenced, I find that the question is not one of jurisdiction but whether the justice of the case warrants an extension of time.
The Registrar’s Request that the Appellant be made to bring a Further Motion to Extend the Time to File her Appeal
37The Registrar has requested, in the alternative, that if jurisdiction is found, the appellant be made to bring a further motion to extend the time for filing her appeal.
38I reject this request. The appellant has already brought such a motion and the Registrar consented to it. In my opinion, the Registrar cannot withdraw consent to a process that has already taken place.
CONCLUSION
39The appeal will proceed to be heard on its merits.
THE TRIBUNAL ORDERS
40The Registrar’s motion to dismiss the appeal for lack of jurisdiction is dismissed.
41The Registrar’s request that the appellant bring a further motion to extend the time for filing is dismissed.
Hearing Date
42A hearing will be scheduled to take place by teleconference. A notice of hearing setting out the details of the hearing will be issued by the Tribunal in due course.
Procedure at the Hearing
43At the hearing, the parties may each call witnesses and/or present documentary evidence. The appellant has the burden of proving, on a balance of probabilities, that her appeal should be granted.
44The issue on appeal is whether the impoundment resulted in exceptional hardship. The criteria for exceptional hardship are set out in Ontario Regulation 631/98 at paragraph 10.
45The Tribunal’s previous decisions on this issue can be found at: https://www.canlii.org/en/#search/type=decision&ccId=onlat&text=%22exceptional%20hardship%22
46The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure (October 2, 2017; amended February 7, 2019) (“the Tribunal’s Rules”) will apply to this appeal, except where varied by Order of the Tribunal.
Exchange of Documents
47If either party intends to rely on documentary evidence at the hearing that has not yet been produced, it shall serve the other party and file a copy with the Tribunal at least 48 hours prior to the scheduled hearing date. Any such documents may be sent by email.
If the Appeal is Resolved or Withdrawn
48If the parties reach an agreement on any of the issues in dispute, they shall forthwith advise the Tribunal. In the case of withdrawal of the whole of the appeal, the appellant shall serve the Registrar with a notice of the withdrawal, and file a copy of the notice with the Tribunal.
LICENCE APPEAL TRIBUNAL
Jennifer Friedland, Member
Released: August 12, 2019