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:/
Craig Whiteman
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Colin Osterberg, Member
Appearances:
For the Appellant: Craig Whiteman, Self-represented
For the Respondent: Stephen Grootenboer, Agent
Heard by Teleconference: November 3, 2021
REASONS FOR DECISION AND ORDER
OVERVIEW
1Craig Whiteman (the "appellant") brings this motion to extend the time to commence an appeal following the impoundment of his 2006 Mazda motor vehicle under section 55.1 of the Highway Traffic Act (the "HTA”).
2The appellant's vehicle was impounded on September 2, 2021, after it was stopped by the police and the appellant’s friend, Ashley Henderson (“Ms. Henderson”), was found to be driving it while her licence was under suspension. The period of impoundment was 45 days. The appeal was filed on October 21, 2021, which is the 49th day after the impoundment.
3Under s. 9 of Ontario Regulation 631/98, an appeal of a vehicle impoundment is required to be commenced within 15 days of the impoundment. The appellant brings this motion to extend the time for filing his appeal pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999, c. 12, Sch. G, which allows the Tribunal to extend the time to commence an appeal where there are reasonable grounds for doing so.
4For the reasons given below, I find that the justice of this case does not warrant an extension of the time for filing the appeal. The appellant’s motion is dismissed.
ANALYSIS
5In 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.
6I 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
7According to the appellant, he was told about the impoundment by Ms. Henderson on September 2, 2021. He says that Ms. Henderson told him that the reason she was given for impounding the vehicle was that her driver’s licence was under suspension. The appellant says that he wanted to wait until he received paperwork about the impoundment in the mail before appealing the impoundment so that he could find out how to proceed. He says that he did not take any steps to appeal the impoundment earlier than he did because he did not receive that paperwork until approximately September 28, 2021.
8The appellant testified that, after he received the Notice of Impoundment and Release on September 28, 2021, he spoke with the Tribunal and was told that he should speak with the investigating officer to try and “sort out the matter”. He says that he got the telephone number for the Tribunal from the Notice of Impoundment and Release. The appellant says that he tried to contact the investigating officer but was told that she had been suspended. He then contacted the Ministry of Transportation, but they were not helpful. The appellant spoke with Ms. Henderson’s father who suggested to him that he should appeal the impoundment.
9I do not accept the appellant’s evidence that he intended to appeal at an early stage. His evidence was that he took no steps to appeal and made no inquiries of anyone as to how to appeal until he received the Notice of Impoundment and Release on or about September 28, 2021, 26 days after the vehicle was impounded and 11 days after the appeal period had expired. Even then, he only decided to proceed with the appeal after speaking with Ms. Henderson’s father. He never filed the appeal until October 21, 2021.
10Based on the above evidence, I find that the appellant did not intend to file an appeal within the appeal period. That intention was formed after September 28, 2021, and after the 15-day appeal period had already expired.
Length of the delay
11I find the delay to be significant in this case. The deadline for appealing was September 17, 2021. The appeal was filed 34 days late, on October 21, 2021. As noted above, the appellant took no steps to determine how to proceed with an appeal until after he spoke with Ms. Henderson’s father sometime after September 28, 2021.
12The appellant testified that, when he received the Notice of Impoundment and Release, he contacted the Tribunal and was told that an appeal would take up to three months to resolve and that, instead of filing an appeal, he should try and resolve the matter with the investigating officer. I do not accept this evidence. There would be no reason for anyone at the Tribunal to have given the appellant this information and the appellant gave no particulars with respect to when this alleged discussion took place or who he spoke with at the Tribunal. That the Tribunal would have advised the appellant to negotiate the release of his vehicle with the investigating officer rather than commencing an appeal is not believable and I find that the appellant was not being truthful when he gave that evidence.
13In addition, the appellant admits that he read the Notice of Impoundment and Release and that he got the telephone number for the Tribunal from that document. That document provides information about appealing an impoundment and states that the appeal must be filed within 15 days of the impoundment. It also provides the Tribunal’s website address where more information about appeals can be accessed.
14If the appellant intended to appeal the impoundment, he could have done so significantly earlier had he exercised diligence in doing so. Instead of acting immediately to try and determine how to proceed with an appeal, the appellant admits he did nothing and that, even after receiving the Notice of Impoundment and Release, which outlined the process and time limits for the appeal, he waited another 23 days before filing the appeal.
15I find that the appellant’s delay in filing this appeal was significant and that he presented no reasonable excuse for failing to commence the appeal within the 15-day appeal period. Further, the appellant presented no reasonable excuse for taking as long as he did to file the appeal once he formed the intention to do so.
Prejudice
16The 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
17On 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.
18The appellant bases his appeal on section 50.2(3)(c) of the Act which provides that an owner may appeal a vehicle impoundment where he exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension.
19The appellant testified that he has known Ms. Henderson since 2016 and considers her to be a close friend. The evidence presented at the hearing shows that, in 2017 Ms. Henderson was charged with impaired driving while in possession of the appellant’s vehicle. The appellant’s vehicle was impounded for 7 days at that time. The appellant admits that he knew that Ms. Henderson’s licence was suspended following Ms. Henderson’s impaired driving conviction.
20According to the appellant, in June 2020 he drove Ms. Henderson to a Service Ontario office where Ms. Henderson went in and had her licence reinstated. According to the appellant, when she returned to his vehicle Ms. Henderson told him that her licence had been reinstated and showed him a document that she said was a temporary licence. The appellant says that, although he did not read the document or look at it closely, it looked like the temporary licence he had received in the past when his licence was suspended and subsequently reinstated.
21The appellant testified that he took no further steps to determine whether Ms. Henderson held a valid licence prior to allowing her to drive his vehicle on the day of the impoundment.
22The Registrar presented evidence that Ms. Henderson did attend a Service Ontario office on June 18, 2020 and paid a reinstatement fee at that time, but that there were several more requirements she had to fulfil before her licence could be reinstated. The evidence was that the document Ms. Henderson received was not a temporary licence but was likely a receipt for the payment she made. In addition, the Extended Driver Record Search with respect to Ms. Henderson shows that in July 2019, she was convicted of a number of offences including driving while her licence was suspended and her licence received a suspension which did not expire until August 27, 2020. It does not make sense that Ms. Henderson believed that her licence was reinstated in June 2020, and I find it unlikely that she told the appellant that it had been reinstated at that time.
23The appellant testified that he was speaking with Ms. Henderson by telephone on September 3, 2021, the day after the vehicle was impounded. The appellant says that during that call, the investigating officer showed up at Ms. Henderson’s home and that he could hear their conversation. The appellant says that he heard Ms. Henderson ask for the return of the temporary licence that the officer had taken the day before and then heard the officer say she would retrieve it from her police cruiser. The appellant says he then heard the officer say that she had lost the temporary licence. I do not accept the truth of this account. It is self-serving and uncorroborated. Further, it is very unlikely that Ms. Henderson would not have received her formal licence by that time and would still have been relying on the temporary licence she allegedly received more than a year earlier.
24At the commencement of his evidence, the appellant stated that Ms. Henderson was available to join the telephone conference and to give evidence at the hearing. Following his own testimony, the appellant was offered the opportunity to call Ms. Henderson as a witness and declined saying that he did not see any value in doing so. As a result, the appellant’s evidence with respect to the circumstances surrounding Ms. Henderson’s attendance at Service Ontario on June 18, 2020 was uncorroborated as was the appellant’s account of Ms. Henderson’s encounter with the investigating officer on September 3, 2021.
25I do not accept the appellant’s evidence that Ms. Henderson advised him that her licence was reinstated in June 2020 or that she showed him a document that she purported to be a temporary licence at that time.
26This ground of appeal requires the appellant to show that he took reasonable steps to determine that Ms. Henderson’s licence was not suspended. In this context, due diligence required more that making assumptions of the facts. It required steps to be taken to confirm the driver’s assertion that her licence was not suspended. Under this ground of appeal, due diligence often requires the owner to have asked to see a valid licence before permitting the driver to drive the car. The requirement may, of course, be greater depending on the circumstances.
27The appellant had no reasonable basis to believe that Ms. Henderson had a valid licence when he allowed her to drive the impounded vehicle, and there is no evidence that he took any steps to determine whether she had a valid licence before allowing her to drive the impounded vehicle.
28Even had I accepted the evidence that on June 18, 2020 Ms. Henderson told the appellant that her licence was reinstated and that the document she was holding was a temporary licence, which I do not, that would be insufficient to establish due diligence in the circumstances. In those circumstances, due diligence would require the appellant to review the temporary licence to ensure that it was valid on its face. Further, given that more than a year had gone by since their attendance at Service Ontario, the appellant should have, on the day he allowed the appellant to borrow his vehicle, examined Ms. Henderson’s licence again to ensure that it was still valid before allowing her to drive the vehicle.
29Notwithstanding 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 due diligence.
Conclusion
30I find that the appellant has not demonstrated that he had a bona fide intention to appeal within the appeal period and has not presented a reasonable excuse for failing to appeal within the 15-day period. I find that his delay in filing the appeal is significant and is prejudicial to the Registrar. I find that there is little merit to the appeal.
31I find that the justice of the case requires that the request for an extension be denied.
ORDER
32For the reasons set out above, the appellant’s motion to extend the time for filing his appeal is denied.
LICENCE APPEAL TRIBUNAL
___________________________
Colin Osterberg, Member
RELEASED: November 10, 2021