Susan McNab v. Registrar of Motor Vehicles, 2021 CanLII 11873

Licence Appeal Tribunal

Date: 2021-01-18

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:

Susan McNab Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

ADJUDICATOR: Avvy Go, Member

APPEARANCES:

For the Appellant: Susan McNab, Self-Represented Mike Cuttle, Family Member

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: January 15, 2021

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant’s vehicle was impounded on December 19, 2020. On that day, the appellant drove her son to pick up his roommate in another city. The appellant - who was not a great driver at night - almost missed the turn off to the highway. On their way back, the appellant’s son told her he would take over the driving. As they continued with their journey, the son noticed a ride check ahead. He pulled over and told the appellant to drive. At the ride check, the police asked who was driving, the appellant advised it was her son and then herself. The police then impounded the appellant’s vehicle as her son had been driving with a suspended licence.

2The Appellant first attempted to file a Notice of Appeal on January 4, 2021 pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”) by sending an email to the Tribunal. The Appellant took two days to complete the appeal process and she finally filed the Notice of Appeal and Notice of Impoundment on January 6, 2021. Her filing fee had been waived by the Tribunal in view of her low-income status.

3The Appellant brought a motion for an order from the Tribunal granting her an extension of time to file the appeal. The respondent was opposed to the motion. A motion hearing was held on January 15, 2021, by teleconference, to consider the Appellant’s motion.

4For the reasons set out below, I grant the Appellant’s motion for an extension of time to file the appeal and I order the matter be set down for a hearing.

B. ISSUES:

5The issue before me is whether the Appellant’s motion for an extension of time to file the Notice of Appeal should be granted.

C. ANALYSIS

6Under O. Reg.631/98, an appeal under s.50.2 of the HTA shall be filed within 15 days after the day the vehicle was impounded.

7According to Rules 5.1 and 5.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version 1 (October 2, 2017) (“the Tribunal Rules”):

5.1 COUNTING DAYS

Where an action is to be done within a specified number of days, the days are counted by excluding the first day and including the last day.

5.2 EXPIRY OF TIME ON A HOLIDAY

Where the time for doing an act ends on a holiday, the act may be done on the next day that is not a holiday.

8Rule 2.7 of the Tribunal Rules further provide “holiday” means “any Saturday, Sunday, statutory holiday, or other day on which the Tribunal’s offices are closed for business”.

9According to the notice of impoundment, which was filed along with the Notice of Appeal, the Appellant’s vehicle was impounded on December 19, 2020. Applying the 15 day filing timeline, the Appellant had until January 3, 2021 to file the Notice of Appeal. January 3, 2021 happened to fall on a Sunday. Thus, the final date for the filing of the Notice of Appeal in this case was January 4, 2021, but the process for the filing of the appeal was not completed until January 6, 2021.

Factors to be Considered for an Extension of Time

10Pursuant to s. 7 of the Licence Appeal Tribunal Act, the Tribunal has the discretion to extend the time for filing an appeal if the Tribunal is satisfied that there are reasonable grounds for applying the extension.

11When deciding whether to grant an extension of time to file the appeal, the Tribunal is guided by the following four factors as set out in Manuel v. Registrar¹:

a. The existence of a bona fide intention to appeal;

b. The length of the delay;

c. Prejudice to the other party; and

d. The merits of the appeal.

12The overriding consideration is whether “justice of the case” requires that the extension be granted.²

13I will deal with each of these factors as follow:

Existence of a Bona Fide Intention to Appeal

14The appellant submitted that she tried to file an appeal starting from the 19th of December. She had gone to the police and the provincial court to ask for information. The receptionist at the provincial court gave her the Tribunal appeal sheet on December 21, 2020. She also spoke to the crown who advised her that most courts would be closed until January 4, 2021. The appellant was given an email for the Tribunal. The appellant sent an email to the Tribunal on January 4, 2021. She had also tried to reach the Tribunal on the phone but was put on hold for hours. The Case Management Officer contacted the appellant on January 5, 2021 to go over her appeal form and advised her to file a motion for an extension of time. The appellant could not complete the appeal process at her home computer and needed outside help. She finally filed all the forms on January 6, 2021.

15The appellant said she tried her best to file the appeal on time, but due to the lockdown, the holiday season, and her dyslexia, it was tough for her to do so.

16The respondent pointed out that the majority of appellants are able to file their appeal within the 15 days deadline, and that the Tribunal was in fact opened between December 28 and 31.

17I find that the appellant did have a bona fide intention to file the appeal. She did try to seek information about how to file the appeal from the police, the crown, and the court. While she had been mistakenly advised that the Tribunal was closed until January 4, 2021, she did contact the Tribunal on that day – the last day of the 15 day deadline - to express her intent to file the appeal. As such, I find this favour weighs in favour of granting the motion.

Length of Delay

18The appellant attempted to file her appeal on January 4, 2021. If she had the wherewithal to complete the process on her own, she would not have to file this motion. In the end, it was a two-day delay, which is by no means excessive.

Prejudice to the Other Party

19The respondent tried to suggest that there is prejudice to them if the motion is granted because they would have to pay for the impoundment if the appellant were to win the appeal.

20Prejudice, in this regard, is not determined by the final outcome of the appeal, but whether the respondent has been prejudiced by the delay. The answer, based on the information before me, is no.

Merits of the Appeal

21The last factor that I need to consider, is the merits of the appeal, and I find this is the one factor that gives me some pause. On the one hand, the appellant has clearly been affected by the impoundment. As someone living mostly on her Old Age Security and CPP pension, the appellant is low income. She said she needs the impounded vehicle to allow her to earn extra income by serving other seniors and to carry out her in-home hair dressing business. She also mentioned that she has ongoing medical issues and has a brother-in-law that is going through cancer treatment and would require her help with grocery shopping. On the other hand, the appellant also indicated that she is able to continue with grocery shopping for herself and her medical appointments are mostly done by phone.

22However, I do not have all the evidence before me, and the appellant’s evidence has yet to be tested.

23It is thus unclear at this stage whether the appellant would meet the exceptional hardship test under subsection 50.2(3) of the HTA or the criteria under section 10 of O. Reg. 631/98 (the “Regulation”).

24Having said that, I take guidance from Justice Lax in Falus v. Martap Developments 87 Limited³, where she stated:

The “justice of the case” requires some consideration of the merits, but on a motion to extend the time for appeal, the Court should not be weighing the relative merits of the appeal. It should only be satisfied that the appeal has some merit, particularly in circumstances where the error is inadvertent, the delay is de minimis, there is no prejudice to the respondent and it is clear there was an intention to appeal.

25Applying this principle to the case at hand, I find the appeal has some merit, and that it is in the interest of justice to extend the time to file the Notice of Appeal, in view of my finding on all the other factors as noted above.

26Granting this motion does not mean that the appellant will necessarily prevail in her appeal. She still carries the burden of demonstrating that there is exceptional hardship resulting from the impoundment.

D. Case Management Issues

27In order to move the matter along in an expeditious manner, the parties agreed at the motion hearing to set down a date for the hearing for this matter in the event that I decide to grant the motion.

E. ORDER:

28I grant the motion to extend the time for the filing of the appeal.

29A hearing is scheduled on one of the following dates: January 21, 22 or 25 (either morning or afternoon) by teleconference.

30The parties will serve upon each other and file with the Tribunal the submissions and evidence they wish to rely on at the hearing at least one day before the hearing.

31The parties shall be prepared to present their evidence and submissions to the hearing member on the hearing date, who will thereafter assess the evidence and make a determination on the issues raised in the appeal.

32The hearing adjudicator may amend the case management process set out in this Order, subject to the submissions from the parties, as deemed fit.

33The parties shall comply with the requirements set out in the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) except where varied by this Order.

34If the parties reach an agreement on the issues in dispute prior to the scheduled hearing date, they shall immediately advise the Tribunal. The Tribunal will thereafter cancel the hearing. In the case of withdrawal, the appellant shall serve the respondent and file with the Tribunal a Notice of Withdrawal, after which the hearing will be cancelled. The Tribunal’s Notice of Withdrawal is available at http://www.slasto.gov.on.ca/en/lat/Pages/Appeal-Process/Forms.aspx.

35Nothing in this Order affects any requirement under the Act.

36I am not seized on this matter.

Footnotes

1. 12012 ONSC 1492 (Ont. Divisional Court)
2. 2ibid, at para.40
3. 32012 ONSC 5163 (Div. Ct.)