Date: 2021-11-10

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

Between:

Lary Davis

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Colin Osterberg, Member

APPEARANCES:

For the Appellant: Lary Davis, Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: November 5, 2021

REASONS FOR DECISION AND ORDER

OVERVIEW

1Lary Davis (the "appellant") seeks to appeal the impoundment of his motorized golf cart under section 55.1 of the Highway Traffic Act (the "HTA”).

2The appellant's golf cart was impounded on July 21, 2021, when it was stopped by the police and the appellant’s son, Matthew Davis, was found to be driving it while his licence was under suspension. The period of impoundment was 45 days and expired September 4, 2021. The appellant had 15 days to appeal the impoundment, a period which expired on August 6, 2021, the 15th day being a Sunday. The appeal was filed on October 1, 2021, which is the 72nd day after the impoundment and the 57th day after the appeal period expired.

3The appellant brought a motion to extend the time for filing an appeal. The Registrar brought a motion to determine whether the appellant has standing to bring the appeal since he is not registered as the owner of the golf cart.

4For the reasons given below, I find that the appellant does have standing to appeal the impoundment under s. 50.2 of the HTA. I also find that the justice of this case does not warrant an extension of the time for filing the appeal. The respondent’s motion and the appellant’s motion are denied.

ANALYSIS

The Registrar’s motion

5The Registrar argues that the appellant does not have standing to appeal the impoundment. The Registrar states that s. 50.2 of the HTA limits the persons who are entitled to appeal to persons whose names appear on the certificate of registration for the vehicle.

6The Registrar has not taken the position that the appellant is not the actual owner of the impounded golf cart. The appellant has presented no evidence, other than his own testimony, that he is the actual owner. Although this decision is based on the assumption that the appellant is the actual owner, I make no findings in that regard for the purposes of the appeal itself.

7Section 50.2(1) of the HTA states that:

(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.

8Section 50.2(11) defines “owner” for the purposes of s. 50.2 as follows:

“owner” means each person whose name appears on the certificate of registration for the vehicle….

9I note that the English version of the HTA does not provide for the issuance of a “certificate of registration”. I find that the definition in s. 50.2(11) refers to a vehicle permit issued under s. 7 of the HTA. Instead of the word “permit”, the French version of the HTA uses the term “certificate d’immatriculation” which translates into English as “certificate of registration.” The vehicle permit is the document which is issued, certifies that the particular vehicle has been registered with the Ministry of Transportation, and carries the name of the person commonly referred to as the “registered owner” of the vehicle.

10Golf carts are not capable of registration under the HTA. Therefore, there was no permit issued in respect of the appellant’s golf cart and the Registrar submits that there was no “owner” of the golf cart as that term is defined in s. 50.2(11). Since the only person entitled to appeal an impoundment under s. 50.2(1) is the owner, the Registrar argues that there is no person with standing to bring an appeal in this case.

11For the reasons which follow, I do not accept the Registrar’s position.

12The words of a statute are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, and the intention of Parliament.¹

13While s. 50.2(11) states that “owner” means “persons whose names appear on the certificate of registration,” it does not limit the meaning to only those persons. I find that the word “owner”, as it appears in s. 50.2(1), may include the actual owner and the beneficial owner in addition to the registered owner, depending on the circumstances under consideration.

14The purpose of s. 50.2 is to provide the owner of a motor vehicle the right to appeal an impoundment for certain specified grounds. Three of the grounds are in circumstances where the owner was not blameworthy in allowing the driver to operate the vehicle while his or her licence was suspended, including where the vehicle was stolen, where the licence of the driver was not actually suspended, and where the owner exercised due diligence in order to determine whether or not the driver had a valid licence at the time. In those circumstances, as well as where a person would suffer exceptional hardship as the result of the impoundment, the Legislature provided for the right to appeal so that the owner is not required to bear the consequences of impoundment.

15If the Registrar’s interpretation is correct, no one, including the actual owner of the unregistered motor vehicle, would have the ability to appeal under any circumstances, even where registration, as in this case, was not possible. For example, if the licence of the driver of the unregistered vehicle is not under suspension at the time it is impounded, the actual owner would have no recourse but to allow the vehicle to remain impounded and to pay the costs of impoundment. I do not accept that the Legislature intended to provide the actual owner of such a vehicle no means of appealing an impoundment.

16It is more likely, and I so find, that the intention of the Legislature in s. 50.2(11) was to simplify appeals where a vehicle is actually registered and where there might otherwise be an issue as to whether the appellant is the owner of the vehicle. In other words, where the vehicle has been registered in the appellant’s name, the Registrar cannot argue that the appellant is precluded from appealing because he or she is not the actual owner of the impounded vehicle. Where the vehicle has not been registered, it would be open for the Registrar to require that the appellant prove ownership as a prerequisite to appealing the impoundment.

17The Registrar’s interpretation, if accepted, also appears to lead to the result that the owner of an unregistered vehicle could never recover the impounded vehicle even after the impoundment period has expired. Section 55.1 of the HTA governs the impoundment and release of motor vehicles where the impoundment results from the vehicle being driven by a suspended driver as in the present circumstances. The definition of “owner” for the purposes of s. 55.1 is set out in s. 55.1(40) and is substantially the same as in s. 50.2(11). Section 55.1(4) provides that, after the expiry of the impoundment period, the vehicle may be released to its owner. If the Registrar is correct, then there is no owner of an unregistered vehicle and the vehicle cannot be released to anyone.

18Further, under s. 55.1(17), at the end of the period of impoundment the Registrar is required to order the vehicle released to its owner. Again, if there is no “owner” on the basis that a vehicle is not registered, then the Registrar cannot order the vehicle to be released to anyone.

19Finally, s. 55.1(22) provides that the impound costs are a debt due by the owner and the driver. If the Registrar is correct, then the impound operator has no basis under the HTA to recover the costs of impoundment from the unregistered vehicle’s actual owner.

20By specifically providing that “owner” includes the registered owner under s. 55.1(40), the HTA provides that the Registrar may order the vehicle released to that registered owner without inquiring into the actual owner’s identity, and the impound operator can look to the registered owner for payment without having to prove the identity of the actual owner. However, where the vehicle is not registered, I find that the HTA allows the Registrar to order the vehicle released to the actual owner at the expiry of the impound period, and allows the impound operator to look to the actual owner for payment of the impound costs.

21I find that the right to appeal an impoundment under s. 50.2 is not limited to the persons whose names are listed on the vehicle permit but includes the actual owner of the motor vehicle.

22The Registrar’s motion is therefore denied.

The appellant’s motion to extend the time to file the appeal

23Section 9 of Ontario Regulation 631/98 (the “Regulation”) states that an appeal under s. 50.2 of the HTA must be commenced within 15 days after the day the vehicle was detained in order to be impounded. As stated above, in this case, that would require the appeal to have been commenced by August 6, 2021.

24Section 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.

25In 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. The factors to be considered 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.

26I have considered the evidence relating to each of these factors as they apply to this case.

Bona fide intention to appeal within the appeal period

27The appellant testified that he learned that the golf cart had been impounded on Friday, July 21, 2021. He went to the police station the following Monday and was told that the impoundment was for 45 days and that he would receive the Notice of Impoundment in the mail.

28The appellant decided to wait the 45 days and then go to the impound yard to retrieve the golf cart. He says that at that time he did not know that he could appeal the impoundment and he took no steps to find out his rights and obligations arising out of the impoundment.

29On September 4, 2021, when the impoundment period was over, the appellant went to the impound yard and was surprised at how much it would cost to have the golf cart released. Since the impound costs were more than the golf cart was worth, the appellant decided to leave the golf cart with the impound operator and not seek its release. The appellant testified that he thought the impound operator would not be able to prove that the appellant actually owned the golf cart and so would not be able to force him to pay the impound costs.

30On September 25, 2021, the appellant received a collection notice which threatened legal action if the impound costs, which continued to grow, were not paid. The appellant became concerned that he might be held to be liable to pay the impound costs and so he searched the internet and found out he could appeal the impoundment to the Tribunal.

31Based on the above evidence, I find that the appellant did not have a bona fide intention to file an appeal within the appeal period. The appellant formed the intention to appeal only after he received the collection notice and realized that he might have to pay the impound costs. This was not until around September 25, 2021, almost 2 months after the date the golf cart was impounded.

Length of the delay

32I find the delay to be significant in this case. The deadline for appealing was August 5, 2021. The appeal was filed 57 days late, on October 1, 2021. The appellant presented no satisfactory justification for the length of the delay. The appellant argues that he did not receive a Notice of Impoundment and did not know he could appeal until he researched impoundments on the internet on September 25, 2021.

33The appellant made very little effort to determine his rights relating to the impoundment and, when he did make the effort, was able to find out about the appeal process quickly by searching the internet. He did that only because he realized that he might have to pay the impound costs.

34I find that the appellant’s failure to investigate his rights with respect to the impoundment is not a reasonable excuse for the delay for the purposes of his request for an extension of time to file this appeal. He admits he knew the golf cart was impounded. He knew where it was being held. He knew the name of the police officer and the police department that impounded the golf cart. He could have determined his rights, including the right to appeal the impoundment, had he chosen to make the effort. Instead, the appellant chose to wait to file his appeal until it became clear to him that he could not avoid responsibility for the impound costs.

35I find that the appellant’s delay in filing his appeal was significant and that he presented no reasonable excuse for failing to commence the appeal before the 15-day appeal period had expired or why it took 72 days after the vehicle was impounded.

Prejudice

36The Registrar benefits from a prompt hearing and would be prejudiced by an extension of the time for filing the appeal. If the appellant’s appeal is successful, the Registrar will be required to cover the cost of the impoundment. The earlier the appeal is dealt with, the less it will cost the Registrar to have the vehicle released. The prejudice to the Registrar is the risk of incurring greater expense than it would otherwise have been exposed to.

The merits of the appeal

37On a motion to extend time, the appellant need not establish his case on a balance of probabilities but only that his version of events, if believed, could reasonably result in a favourable outcome.

38The appellant appeals on the ground that the impoundment will cause exceptional hardship. Section 10 of the Regulation sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.

39Subsection 10(1) of the Regulation requires the Tribunal to consider whether an alternative to the impounded vehicle is available. Subsection 10(4) states that, in order to show that there is no alternative to the impounded vehicle:

The owner must 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.

40If the owner fails to prove that no alternative to the impounded vehicle is available, then his appeal under s. 50.2(3)(d) must fail. Only where an owner has established that there is no alternative available is the Tribunal able to consider whether the appellant may rely on exceptional hardship as a ground upon which an impoundment may be appealed.

41According to the appellant, the impounded golf cart is used on his property as a “motorized wheelbarrow”. By that, the plaintiff means that he uses the golf cart mainly to transport dirt, tools, and other materials, around his property for ordinary maintenance activities. The appellant owns a passenger car which he uses for all necessary transportation away from his property. The appellant did not present evidence of any necessary activities that he is prevented from doing as the result of the impoundment.

42In these circumstances, it is unlikely that the appellant will be able to prove that no reasonable alternative to the impounded vehicle was available to him. The fact that he decided at the expiry of the impoundment period to abandon the golf cart rather than pay the impoundment costs, is further evidence that the appellant had a reasonable alternative and that the impoundment was not causing exceptional hardship.

43Notwithstanding that this stage of the test is a low threshold, I find that the appeal is likely to fail should a hearing take place. It is up to the appellant on a motion for an extension of time to demonstrate the merits of his case. I am not persuaded that his appeal is likely to be successful based on exceptional hardship.

44I find that the appellant has not demonstrated that he had a bona fide intention to appeal within the appeal period. I find that his delay in filing the appeal is significant, unreasonable, and is prejudicial to the Registrar. I find that there is little merit to the appeal.

45I find that the justice of the case requires that the request for an extension be denied.

ORDER

46For the reasons set out above, the appellant’s motion to extend the time for filing his appeal is not allowed.

LICENCE APPEAL TRIBUNAL

Colin Osterberg, Member

Footnotes

1. 1Driedger, E.A. The Construction of Statutes, 2nd ed., Toronto, Butterworths, 1983, at 87; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42 at 26.