Stefanie Forbes v. Registrar of Motor Vehicles, 2021 CanLII 11856

Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Date: 2021-29-01

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle under section 55.1 of the Act for driving while suspended

Between:

Stefanie Forbes

Appellant

-and-

Registrar of Motor Vehicles

Respondent

MOTION DECISION and ORDER

Panel: Katherine Livingstone, Member

Appearances:

For the Appellant: Self Represented

For the Respondent: Sanjay Kapur, Agent

Place and date of hearing: By teleconference, January 20 and 21, 2021

MOTION DECISION AND ORDER

OVERVIEW

1This is a motion to extend the time to appeal a motor vehicle impoundment.

2The appellant’s vehicle was impounded on December 14, 2020 on the ground it was being operated by a driver whose driver’s licence was under suspension.

3In brief, the appellant submits she was not aware of her ability to appeal the impoundment until receiving mailed correspondence from the Registrar on January 7, 2021, several days after the time for appeal had elapsed. She wishes to appeal the impoundment on the grounds the vehicle was stolen at time of the driving that led to the impoundment and that the impoundment has resulted in exceptional hardship.

4For the reasons that follow, I find the appellant has failed to establish reasonable grounds for the extension of time to file the appeal. The motion is denied.

ISSUE TO BE DECIDED

5The issue to be decided on this motion is whether the appellant has established reasonable grounds to support an extension of time.

LAW

6Pursuant to section 9 of Ontario Regulation 631/98 issued under the Highway Traffic Act, R.S.O. 1990, c. H. 8, (“the Act”) an appeal of a long-term impoundment is required to be filed within 15 days after the day the vehicle was detained together with the fee established by the Tribunal.

7The 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, Schedule 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 under section11 or any other Act, 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.

8Determining if there are reasonable grounds for an extension is not an exact formula. This Tribunal has consistently considered the following factors in making a determination as to whether there are reasonable grounds to grant an extension of time:

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.

The analysis requires a balancing of these factors when applying the facts.

9The onus is on the appellant to establish that there are reasonable grounds for the granting of the extension.

ANALYSIS

Bona Fide Intention to Appeal within the Appeal Period

10The appellant testified her vehicle was impounded December 14, 2020, after her partner was stopped by police, driving her vehicle while his licence was suspended. She indicated she attended the scene and was told by a police officer her car would be impounded for 45 days and there was nothing she could do about it. She said while she was at the scene, she was given a “pink slip” but did not testify as to its contents.

11She said she did not become aware of her right to appeal the impoundment until she received mailed correspondence from the Registrar on January 7, 2021. At this time, the appellant said she made efforts to contact the Tribunal by telephone to seek further information on how to go about appealing the impoundment. She said she was placed on hold for long periods and encountered issues with the automated service before being connected to someone who could assist her. She then filed her appeal on January 13, 2021.

12The respondent called Sgt. Crema, who was a supervising police officer on the day of the impoundment, to testify. Sgt. Crema had phone contact with the appellant shortly after her partner was stopped driving her car. Sgt Crema arranged for the appellant to come to the scene to pick up her 10 year old daughter, who had been a passenger in the car. Sgt. Crema also attended the scene to assist other officers already there.

13Sgt. Crema explained that when a vehicle is impounded, an attending officer completes a four copy impoundment form. Although Sgt. Crema did not personally complete the impoundment form in this matter, he said the four copies are all different colours, with copies meant for the owner of the vehicle (a pink copy), the driver of the vehicle, the impoundment company and the Registrar. The back of the document contains particulars of how to apply to appeal the impoundment.

14Based on both the evidence of the appellant and Sgt. Crema, it appears that, although the appellant may not have realized it, there was material in her possession before January 7, 2021 that would have assisted her in taking steps to appeal the impoundment. It is to her detriment that she does not appear to have reviewed the “pink slip”.

15Nor was there any evidence of steps taken by the appellant before January 7, 2021 to ascertain whether there was anything she could do to address the impoundment. According to her evidence, she simply relied on what she asserts was a comment by an officer “that her vehicle would be impounded for 45 days and there was nothing she could do about it”. There was no evidence before me that the appellant took any steps to determine the accuracy of what she asserts the officer told her.

16In all the circumstances, I am satisfied the appellant did not have a bona fide intention to appeal the impoundment until after the 15 day appeal period had elapsed.

The Length of the Delay.

17While I find the filing of appeal documents 16 days after the expiration of the appeal period to be significant, this delay would not in and of itself have resulted in a decision to deny the appellant’s motion.

Prejudice to the Respondent

18If an extension of time were granted, the Registrar would be prejudiced as it benefits from a prompt hearing, as close to the 15-day limit as possible. This is because if the appellant is successful, the Registrar covers the cost of the impoundment. Thus, if a vehicle is going to be released, the earlier, the better. This factor weighs against granting an extension of time.

The Merits of the Appeal

19The final consideration is of the merits of the appeal. This consideration 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.

20As noted earlier, the appellant wishes to rely on two grounds of appeal, namely that the vehicle was stolen at the time of the driving leading to the impoundment and that the impoundment has resulted in exceptional hardship. I find the merits of both grounds are very weak. After reviewing both the evidence heard on the motion and the material contained in the Notice of Appeal (NOA), I find the appellant does not have a reasonable chance of a successful appeal.

21The driver of the vehicle is the partner of the appellant and is living with her and her children. In her NOA she said knows him to be a suspended driver. Her NOA indicated that, prior to December 14, 2020, her vehicle had not “been on the road for three months as the motor has been blown out”. Her partner is a mechanic who had been repairing the vehicle and finished the repairs the morning of December 14. She says she did not grant him permission to use the car.

22In her evidence during the motion, in answering a question posed by the respondent’s agent, she said her partner did not need a key to fix the car as the “hood was open”. She did not explain how he could have started the car without keys. She did not report the car stolen when she was contacted by the police. Her 10 year old daughter was in the car when it was stopped by the police as, apparently, she was being driven to school.

23Sgt Crema provided evidence indicating the appellant’s partner had been seen driving her vehicle a few days before he was stopped on December 14, 2020. In all the circumstances I find the appellant does not have a reasonable chance of success on this ground.

24With respect to the defence of exceptional hardship, the provisions in the Act’s Regulations are very strict and they limit what the Tribunal may consider as being exceptional hardship. The appellant’s evidence regarding exceptional hardship, taken together with the NOA, was, at best, confusing.

25In her NOA the appellant indicated her car had not been on the road for three months. In her evidence she said that, during those three months, she relied on family and friends to assist with her transportation needs. She also said she sometimes walked to work. She stated in the NOA that, since the impoundment she has taken a leave of absence from work. Therefore, she has not needed her vehicle for employment purposes.

26During her testimony, although she said she had alternatives to her vehicle while it was off the road for three months, she said she no longer wishes to rely on the methods she used during that period of time. I find these facts very much diminish the likelihood of success on this ground.

27After considering the evidence and submissions of the parties, I find the appellant has failed to establish reasonable grounds for an extension of time to file an appeal.

ORDER

28The appellant’s motion is denied.