Date: 2021-11-01

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:

Andrew Vo-Le

Appellant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION

Appellant’s Motion for an Extension of Time

Adjudicator: Jennifer Friedland, Member

Appearances:

For Appellant: Self-represented

For Respondent: Sanjay Kapur, representative

Date & Location of Hearing October 7, 2021 by teleconference

A. Overview

1The appellant was a suspended driver whose car was impounded on August 13, 2021 for 45-days pursuant to s. 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“Act”).

2On September 20, 2021, he sought to appeal the impoundment to this Tribunal pursuant to s. 50.2 of the Act. However, he was out of time to do so. Pursuant to section 9 of Ontario Regulation 631/98, this type of appeal must be commenced within 15 days of the impoundment, which meant by August 28, 2021 in the appellant’s case.

3The appellant therefore brought a motion requesting that the Tribunal grant an extension of time for filing his appeal which was heard before me on October 7, 2021.

4At the end of the hearing, I denied the appellant’s request for an extension of time. I informed the parties that my reasons would follow in writing. These are my reasons.

B. Facts

5The appellant’s driver’s licence was initially suspended in Ontario in 2009 following a conviction for various driving offences under the Criminal Code. His licence then continued under suspension for failing to complete a remedial program required before reinstatement. The appellant subsequently left the province and upon his return he applied for and was granted a new Ontario driver’s licence. He says he obtained an abstract of his driving history under that new licence for the purpose of getting a job and it came back clean. Although the abstract was only for the past 3-years, the appellant stated that he thought he was entitled to drive under the authority of that new licence.

6However, on July 23, 2021 – as proven by materials provided by the appellant himself – he received a letter from the Registrar explaining that it had come to the Ministry’s attention that he had two driving records. The letter advised that the two records would be merged and that he was therefore still a suspended driver in Ontario. The letter explained the steps he had to take to deal with the suspension (in this case, a mandatory Driver Improvement Interview and the payment of unpaid fines).

7On August 13, 2021 the appellant was caught driving and his car was impounded for 45-days pursuant to s. 55.1 of the Act. At the time of the impoundment, he was provided a Notice to Registrar that had information on the second page about how to obtain information to appeal the impoundment.

8The appellant explained that he spent the next seven weeks trying to clear up his licensing issues. He says he did not think about appealing the impoundment itself. It was only after the period of the impoundment, after he had retrieved his car from the impoundment facility and paid for it, that he learned he could possibly appeal the impoundment and he thought he might as well give it a try.

9The appellant filed a Notice of Appeal on September 20, 2021 – just over three weeks after the period in which an appeal must be filed pursuant to the Regulations.

C. Law & Analysis

10Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G. gives the Tribunal the discretion to grant an extension of time where there are “reasonable grounds for applying for the extension and for granting relief.”

11In Manuel v. Registrar of Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492, the Divisional Court ruled that on a motion to extend the time to appeal, the overriding consideration is whether the justice of the case requires that the extension be granted. In coming to that determination, the following four factors should be considered:

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 above factors are not strict elements that must each be met in order to grant an extension of time. Rather, they are a guide to assist in determining the justice of the case. Whether to grant an extension of time depends on the specific facts of each case.

13My assessment of the above factors in this case is as follows:

Existence of a bona fide intention to appeal within the appeal period;

14I find that the appellant did not have a bona fide intention to appeal the impoundment within the appeal period. He was not taking steps after the impoundment to figure out what he could do to get his car out. The back of the notice he received at the time of the impoundment informs the driver that appeal information can be obtained by contacting this Tribunal. He did not contact the Tribunal or take any steps to consider an appeal during the 15-day period in which he was entitled to appeal, or even during the weeks following until after the car was out of the impoundment. I have no basis to conclude that he had a bona fide intention to appeal during the appeal period.

The length of the delay;

15The length of the delay is not minimal. The appellant is more than three weeks past the date he was supposed to have appealed. While this period of delay may not be fatal in all cases (for example where other factors might strongly favour an extension), here, this factor weighs against the granting of the extension of time.

Prejudice to the other party

16Typically, the Registrar faces prejudice when an appeal of an impoundment is delayed. This is because if an appellant is successful, the Registrar is obliged to cover the costs of the impoundment up to end of the period of impoundment. That is one reason why the appeal period is tight – so that the appeal can be heard before the end of the appeal period. The Tribunal’s Rules also reflect the intention to have appeals heard during the appeal period, not after. In this case, the prejudice to the Registrar is high as the full period of the 45-day impoundment has passed.

The merits of the appeal.

17This factor is generally considered to be a relatively low threshold to meet. Nonetheless, in this case, in my view, even if all the other factors favoured the appellant’s request for an extension of time – which they don’t – this factor might have been determinative of whether to grant an extension of time. This is because the merit of the appellant’s appeal in this case is minimal, if not zero. The appellant’s only ground of appeal was due diligence based on his claim not to have known that his licence was suspended. This belief is based on his having obtained a new licence that showed a clean 3-year driving history. However, he was sent a letter telling him otherwise on July 23, 2021 before the impoundment. He says he did not open that letter. But whether he did or not, he is deemed to have been served with that letter pursuant to s. 52 of the Act. Also, the letter was submitted to the Board with the appellant’s own materials. So there is no question that it was delivered to his address and received.

18Additionally, Mr. Kapur submitted that if the appeal went to a hearing, the appellant might also have credibility issues, which Mr. Kapur outlined in submissions and had the officer who impounded the vehicle on standby to corroborate. I do not need to review those details. Even without a credibility issue, the appellant has next to no chance of succeeding on a claim of due diligence when he is deemed to have received notice of the suspension and nonetheless continued to drive.

D. Conclusion

19As all four of the factors typically considered by the Tribunal on a request for an extension of time weigh against the request, I have no basis to grant it. I find that the justice of the case does not warrant an extension of time to file an appeal.

E. Order

20The appellant’s request for an extension of time to file an appeal is denied.