Licence Appeal Tribunal
Tribunal File Number: 13123/MVIA
Motion for an Order to extend the Time to File an Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c.H.8 from an Impoundment pursuant to s. 55.1 of the Act.
Between:
Christopher N. Getzinger Appellant (Moving Party)
and
Registrar of Motor Vehicles Respondent (Respondent on Motion)
DECISION AND ORDER
Adjudicator: Jacqueline Castel
Appearances:
For the Appellant: Did Not Attend For the Respondent: Stella Velocci, Agent
Place and Date of Motion: Teleconference February 16, 2021
REASONS FOR DECISION ON MOTION AND ORDER
A. OVERVIEW:
1This is a motion to extend the time to appeal a motor vehicle impoundment to the Licence Appeal Tribunal (the "Tribunal").
2The appellant's vehicle was impounded, on January 10, 2021, because it did not have an ignition interlock device, and the driver had a condition on her licence that she can only drive vehicles equipped with such a device. Subsection 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act") allows for the impoundment of a vehicle where a police officer is satisfied that the licence of the driver of the vehicle contains a condition, that the driver may only drive a vehicle equipped with an ignition interlock device, and the vehicle is not so equipped.
3The Tribunal received the appellant's Notice of Appeal ("NOA") on January 29, 2021. The NOA was completed by Emily Arabella Prescott, the appellant's girlfriend and the driver, at the time of the impoundment. The deadline for filing the appeal was January 25, 2021. As such, the NOA was filed 4 days late.
4The appellant did not file a Notice of Motion to request an extension of the timeline for filing the appeal, as is required, even though the form was emailed to the appellant by a case management officer at the Tribunal. Given that some of the reasons for the delay were identified in the NOA, the Tribunal scheduled a motion hearing, via teleconference, and emailed the appellant a Notice of Motion Hearing with the date, time and call-in details.
5The appellant did not call into the teleconference motion hearing at the scheduled time and could not be reached. After waiting twenty minutes for the appellant to call-in, at the request of the respondent's agent, I commenced the hearing in the absence of the appellant.
6Given that the appellant (a) did not complete and file a Notice of Motion, requesting an extension to the timeline for filing the appeal, despite having been emailed the form; and (b) did not call into the motion hearing at the scheduled time or request an adjournment, despite having been emailed the date, time and other details, I find that the appellant abandoned the appeal, which was filed outside the 15-day timeline.
7Notwithstanding, I considered the merits of the motion, based on the information contained in the NOA and the submissions of the respondent's agent. I find that that the appellant did not meet the onus of establishing that the justice of the case warrants an extension to the timeline for filing the appeal.
8Therefore, the motion to extend the timeline for appealing the impoundment is dismissed. Reasons follow.
B. THE ISSUE TO BE DECIDED:
9The issue to be decided on this motion is whether the appellant has established reasonable grounds to support an extension of time to appeal a motor vehicle impoundment.
C. THE LAW:
10Pursuant to section 9 of Ontario Regulation 631/98, issued under 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.
11The Tribunal has jurisdiction to extend the time for filing an appeal pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. 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 section 11 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.
12In Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492, the Divisional Court ruled that the overriding consideration on a request for an extension of time is whether the justice of the case requires that the extension be granted. The factors to be considered in making this determination 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.
13The appellant has the onus to establish that the justice of the case requires the granting of the extension, but he or she need not satisfy all four factors. Rather, the analysis requires a balancing of the conclusions reached when applying the facts of the case to the factors.
D. DISCUSSION AND ANALYSIS:
Did the appellant have a bona fide intention to appeal?
14The appellant's girlfriend, Emily Arabella Prescott, who was also the driver of the vehicle, at the time of the impoundment, completed the NOA. The appellant did not sign any documentation authorizing her to act on his behalf in respect of the appeal.
15Based on the information in the NOA, Ms. Prescott made inquiries as to the status of her licence or the condition on her licence with the Thunder Bay Police Service and Service Ontario. According to the NOA, she was improperly given the phone number of the Ontario Human Rights Commission respecting the appeal of the impoundment and only after various attempts to get through was she ultimately directed to the Tribunal. The dates on which Ms. Prescott made these inquiries were not specified in the NOA.
16At the outset, it is also not clear to me that Ms. Prescott had the permission of the owner of the vehicle to file the appeal on his behalf. In addition, in the absence of more specific information, I am not satisfied that the appellant had a bona fide intention to appeal within the 15-day timeline.
The length of the delay
17On the second factor, the length of the delay, it is my finding that a 4-day delay, in filing the NOA, is not significant.
Prejudice to the Registrar
18The third factor is prejudice to the opposing party. Ms. Velocci, the agent for the respondent, submitted that there would be prejudice to the Registrar, if the appeal proceeded as the respondent could be responsible for the fees of towing and storage for the entire impound period. I agree that the Registrar would encounter prejudice by the late filing of the NOA.
Merits of the appeal
19The final factor is a consideration of the merits of the appeal. This does not require me to make a ruling on the merits, but only to assess whether the appellant has a reasonable chance of success.
20Based on the NOA, it appears as though the appellant would be appealing on the ground of exceptional hardship as the vehicle is required for his employment or business. There is no indication in the NOA as to whether there are reasonable alternatives to the vehicle. There is also no suggestion in the NOA that the impoundment would result in a threat to the health or safety of any person ordinarily transported by the vehicle. Further, there is no indication in the NOA that any alleged financial loss or loss of employment would be immediate, significant and lasting.
21Accordingly, based on the information contained in the NOA and in the absence of any additional information, the appellant has failed to demonstrate that the appeal has a reasonable chance of success.
22In the context of the applicable factors, it is my determination that the justice of the case does not warrant extending the time period for filing the appeal. The appellant did not complete the Notice of Motion form or attend the motion hearing, despite having been emailed the form and the date, time and call-in information for the hearing. The appellant also did not request an adjournment to the motion hearing. There was no evidence that the appellant intended to appeal the impoundment during the 15- day period of appeal, there is prejudice to the respondent in proceeding, and there is no evidence that the appellant has a reasonable chance of succeeding on the merits of the appeal.
ORDER ON MOTION
23Accordingly, the motion is denied.
LICENCE APPEAL TRIBUNAL
Jacqueline Castel, Member
RELEASED: February 17, 2021