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:
Nicholas Wellington Gerald Brownell
Appellant
and
Registrar of Motor Vehicles
Respondent
MOTION DECISION
Adjudicator: Avril A. Farlam, Vice-Chair
Appearances:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: July 22, 2019
ORDER ON MOTION
A. Overview
1Appellant appeals the impoundment of his vehicle on February 26, 2019 for 45 days, on the grounds that the impoundment is an exceptional hardship on the appellant. The appellant’s vehicle was available for release on April 12, 2019. The appellant filed a Notice of Appeal on May 23, 2019 and a Notice of Motion to extend the time for appeal of the impoundment on May 28, 2019.
2A hearing was held on July 22, 2019 by teleconference to consider two motions:
A. Appellant’s May 28, 2019 motion for an Order granting an extension of time for the appellant to file an 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 on February 26, 2019 by the Registrar of Motor Vehicles.
B. Respondent’s July 3, 2019 motion for an Order to dismiss the appeal for lack of jurisdiction.
3At the beginning of the hearing, appellant and the respondent’s agent agreed that both motions would be heard together, and in the order that they were filed with the Tribunal. Respondent’s agent submitted that the appeal itself should not be heard at the same time as the motions and that if the appellant’s motion is successful and respondent’s motion unsuccessful, a separate date would be set for the hearing of the appeal. Appellant agreed.
B. issueS
4The issue on the appellant’s motion is whether I should extend the time for the appellant to file his appeal.
5The issue on the respondent’s motion is whether I should dismiss the appeal for lack of jurisdiction.
6Respondent’s agent submitted that I should decide the respondent’s motion first as it may affect whether the appeal is allowed to go forward. I disagree with this submission. The outcome of both motions will affect whether the appeal is allowed to go forward. Having heard appellant’s motion first and respondent’s motion second at the hearing, I am of the view that it is most fair to both parties to decide the motions in the order that they were filed with the Tribunal and argued before me.
C. CONCLUSION
7I find that the appellant failed to establish reasonable grounds for an extension of the time to file his appeal. The appellant’s motion is denied, and the appeal is dismissed.
8As the appeal has been dismissed, it is not necessary to deal with the respondent’s motion to dismiss the appeal.
D. LAW AND ANALYSIS
Appellant’s Motion:
Should the Tribunal extend the time for the appellant to file his appeal?
9Section 9 of O. Reg. 631/98, entitled “Long-Term Vehicle Impoundment Under Section 55.1 of the Act”, states that an appeal of an impoundment under s. 55.1 of the Act must be filed within 15 days of the impoundment.
10The appellant’s motion is to extend the time for filing his appeal. Pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G 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.
11To succeed in the motion the appellant must show that there are reasonable grounds for applying for the extension and for the Tribunal granting an 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:
The existence of a bona fide (good faith) intention to appeal [within the appeal period];
The length of the delay;
Prejudice to the other party; and
The merits of the appeal.
12The Divisional Court determined that the factors to be considered are simply a guide to assist in determining the justice of the case and should not be slavishly followed.
13The appellant’s ground of appeal is that the impoundment is an exceptional hardship on the appellant.
(i) Bona fide (good faith) intention to appeal within the appeal period
14The appellant said he did not file his appeal within the legislated timeframe because it took longer than the 15 day appeal period for him to find out how to appeal and to file the appeal due to his incarceration. Appellant’s vehicle was impounded on February 26, 2019. He was incarcerated from February 26, 2019 until March 25, 2019. During incarceration he did not have access to a computer but did have counsel for other matters who he said was unable to help him with appealing the impoundment. When released from incarceration appellant was given a document that stated he could pick up his vehicle on April 12, 2019 and the police told him he would be getting something from MTO. When he received nothing from MTO, he spoke to the courts and his counsel and did computer searches in April and May 2019. Appellant admitted that he was more focused on his other legal matters and did not decide he wanted to appeal the impoundment until the middle of May 2019 when he found information on the computer about how to appeal to the Tribunal. Appellant’s Notice of Appeal was filed with the Tribunal on May 23, 2019 and his motion to extend the time for filing the appeal was filed May 28, 2019.
15Based on the appellant’s admission that he did not decide to appeal until the middle of May 2019, I find that the appellant has not demonstrated that he had a good faith or bona fide intention to appeal within the appeal period.
(ii) Length of the delay
16The delay in submitting the Notice of Appeal and Motion to extend the time for appeal is significant. The Notice of Appeal was received by the Tribunal some 40 days, and the Motion to extend the time for appeal was received by the Tribunal some 46 days, after the impoundment period ended.
(iii) Prejudice to the other party
17The 45 day impoundment period expired on April 12, 2019. In this particular case, the respondent would be prejudiced if the motion was granted because if the appeal goes forward and is successful, the respondent would likely be required to pay greater impoundment fees than if the appeal been filed within the legislative time.
(iv) Merits of the appeal
18The merits of the appeal are relatively weak. At the hearing, the burden would be on the appellant to prove that the impoundment has been an exceptional hardship on him. Appellant’s exceptional hardship argument is not likely to succeed at a hearing because the appellant owned a second vehicle and had public transit available to him and so had alternatives to the impounded vehicle. If he had an alternative to the impounded vehicle, then his appeal would likely fail on this ground as the adjudicator need not consider any other factors.
19To succeed on a motion for an extension of the time to file an appeal, the burden is on the appellant to demonstrate reasonable grounds on which an extension of time should be granted. I find that the appellant has not demonstrated that he had a bona fide (or good faith) intention to appeal within the time for appeal. I find that the delay is significant. There would be prejudice to the respondent resulting from the delay and the merits of the appeal are relatively weak.
20For the reasons above I find that the appellant has failed to establish reasonable grounds for an extension of time to file his appeal. The appellant’s motion is denied. The appeal may not go forward.
ORDER:
21The appellant’s motion to extend the time to file his appeal is denied and the appeal is dismissed.
LICENCE APPEAL TRIBUNAL
Avril A. Farlam, Vice-Chair
Released: August 12, 2019