Tribunal File Number: 12528/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:
Charles Draper
Appellant (Moving Party)
-and-
Registrar of Motor Vehicles
Respondent (Respondent on Motion)
DECISION AND ORDER ON MOTION
ADJUDICATOR: Zahra Dhanani
APPEARANCES:
For the Appellant: The Appellant
For the Respondent: Sanjay Kapoor
Place and Date of Motion: Teleconference January 22, 2020
REASONS FOR DECISION ON MOTION AND ORDER
A. OVERVIEW:
1This is a motion to extend the time to appeal a motor vehicle impoundment.
2The appellant’s vehicle was impounded on June 28, 2019 because it was being operated by a driver whose driver’s licence was under suspension. The Tribunal received the appellant’s Notice of Appeal on January 8th, 2020. The deadline for filing the appeal was surpassed by over 6 months.
3For the reasons that follow, the motion is denied.
4In this case the appellant had given the car to his daughter who lives in a different city. She has several disabilities and lives with financial insecurity. The appellant gave her the car to help her.
5The car was impounded because the daughter’s boyfriend, who was driving the car at the time of the impound (the appellant did not authorize the boyfriend to drive the vehicle), had a suspended licence.
B. THE ISSUE TO BE DECIDED:
6The issue I must consider is whether the appellant established that he has reasonable grounds to support a request for an extension of time to file an appeal.
C. THE LAW:
7Pursuant 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 a vehicle 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.
8The 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.
9In 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.
10The 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.
D. DISCUSSION AND ANALYSIS:
11Did the appellant have a bona fide intention to appeal within the appeal period?
12I find that the appellant did not have a bona fide intention to appeal within the appeal period.
13As noted above, the vehicle was impounded on June 28, 2019 but the appeal was not filed until January 8th, 2020. The appellant’s explanation for this lengthy delay was that he did not know he could appeal the impound of the vehicle.
14The appellant testified that he had no idea how to deal with the impoundment, he is not educated in the ways of the government and he does not have any familiarity with advocating for himself.
15The appellant stated that he only found out that he could appeal when someone heard him speaking about his situation and told him that he could appeal. This was in December, over six months after the car had been impounded.
16The appellant stated that because he had surgery in December, he did not submit his appeal documents until January 8, 2020.
17The respondent submitted that there was a positive obligation on the appellant to educate himself about his rights and that the appellant did not seek out information about what he could do in the case of an impoundment.
18When considering the appellant’s bona fide intention to appeal, the Tribunal looks at when the intention to appeal becomes evident. In this case, there is no evidence that the appellant had a bona fide intention to appeal the matter within the 15-day appeal period.
19While it is understood that navigating the law is difficult for self-represented parties, especially those with disabilities and barriers such as the appellant, there is no evidence before me that he even tried to find out if there was a possible remedy for his problem within the 15-day appeal period. There was no credible reason given why he didn’t even look for a solution for over six months.
20Further, while the appellant testified that he learned in early December 2019 that he could file this appeal, it was not in fact filed for another month. There is no doubt that the appellant has significant health issues and barriers and he was hospitalized between December 4th to the 9th, 2019. While recovery could not have been easy, the appellant did not provide any evidence that he was not functional between December 9th and January 9th, 2020.
21Based on the above, I find the appellant did not have a bona fide intention to appeal the matter within the 15-day appeal period.
The Length of the Delay
22The scheme of the Act is to hear these appeals efficiently and expeditiously, and if possible, within the 45 day impound period to minimize storage costs payable by the Registrar.
23A delay of six months in filing the Notice of Appeal is significant in this context and inconsistent with the time limits contemplated in the Act.
Prejudice to the Registrar
24The third test is the prejudice the opposing party, in this case the Registrar, has experienced or will experience as result of the appellant’s delay in filing the appeal.
25If the appellant is successful on the merits of his appeal, the respondent would be responsible for the fees payable for towing and storage up to the end of the impoundment period. This would be the case no matter when the appeal is heard.
26While the scheme of the Act is to hear these appeals expeditiously, and, if possible, within the 45 day impound period (to minimize storage costs payable by the Registrar) the maximum amount payable by the Registrar is for the duration of the impound. The delay of bringing the appeal does not affect the amount payable, even if the appeal is successful.
27The reality is that the hearing for these types of appeals often does not occur until after the end of the 15-day appeal period.
28I find that the Registrar is not prejudiced by the delay in filing of the Notice of Appeal because of these practicalities.
Merits of the Appeal
29The 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.
30In my view, based on the facts presented at the motion, the appellant does not have a reasonable chance of succeeding on the appeal.
31In order to establish exceptional hardship, the first requirement set out in 10(1) of the Regulation is that there is no alternative to the impounded vehicle for the appellant. If the Tribunal finds there is an alternative to the impounded vehicle, it need not consider any other requirements.
32The appellant indicated that the impounded vehicle was not the vehicle he was ordinarily transported by. It was being used by his daughter who has a disability and cannot work. He gave her the car to use during a particularly difficult period for her. He makes all the leasing and insurance payments and the car is registered to the appellant.
33There is an alternative to the impounded vehicle for the appellant and on this basis alone the appeal would not likely succeed.
34I recognize that the impoundment has had a lasting and significant impact on the appellant. The appellant has had a series of very serious health issues over the years, he does not have a high income, he rents a room in a house and he pays for his daughter’s car because she is disabled. The appellant will likely lose this vehicle and his payments if the car is not released from the impound.
35These reasons unfortunately do not negate the fact that he has alternative methods of transportation beside the impounded vehicle. Section 10 (2) of the Regulation does not allow the Tribunal to consider “inconvenience” or “financial” loss to the owner of the impounded vehicle unless he is not the suspended driver and is the person ordinarily transported by the vehicle. The appellant’s evidence is that his daughter is the person ordinarily transported by the vehicle.
36Despite the appellant’s hardships, it would not be possible for the Tribunal to make a finding of exceptional hardship based on the facts presented at the motion.
37Having considered the submissions of the parties in the context of the applicable factors, it is my determination that the justice of the case does not warrant extending the time period for filing the appeal.
E. ORDER ON MOTION
38Accordingly, the motion is denied.
LICENCE APPEAL TRIBUNAL
Zahra Dhanani, Member
Released: May 20, 2020