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:
Autumn Lee Burkey
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Theodore Crljenica, Member
Appearances:
For the Appellant: Autumn Lee Burkey, Self Represented
For the Respondent: Sanjay Kapur, Agent
Motion Heard by Teleconference: January 26, 2021
REASONS FOR DECISION AND ORDER
OVERVIEW
1The appellant filed a motion to extend the time to file an appeal of the impoundment of her motor vehicle pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”). The vehicle was impounded (the “vehicle”) on December 15, 2020 and it was not until January 19, 2021 that she submitted her appeal.
2For the reasons set out below, the appellant’s motion is granted. It is also ordered that the appeal proceed directly to hearing without a case conference.
THE ISSUE TO BE DECIDED
3The 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.
THE LAW
4Pursuant to section 9 of Ontario Regulation 631/98 an appeal of an impoundment is required to be filed within 15 days of the day the vehicle was impounded.
5The Tribunal has authority to extend the time for filing an appeal: see Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G, s. 7.
6In Manuel v. Registrar, 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
7The appellant bears the onus of establishing that the justice of the case requires that the time to appeal be extended. She does not have to satisfy all four factors and failure on one or more of them does not automatically result in a dismissal of the motion. The test requires a balancing of the factors in the context of the facts of the case.
FACTS
8The appellant is a single mother of three infants.
9Her vehicle was impounded on December 15, 2020. According to the appellant, she was driving the vehicle, accompanied by a friend, when she was stopped by the police. In the Notice of Impoundment it is indicated that the appellant’s friend was driving the vehicle. This friend did not have a driver’s licence at the time as it was under suspension for a Criminal Code offence. The appellant disputes that her friend was driving the vehicle.
10In her testimony, the appellant stated that at the time of impoundment she asked the police officer how long it would be impounded. He told her to speak to the towing yard at which the car would be stored as a result of the impoundment. Someone from the yard told her that the vehicle was impounded for 45 days. Then, on some unknown date in December 2020 she called the police station and was told about the appeal process.
11According to the appellant, she accessed the Tribunal website in December to submit an appeal. When the appellant saw that she was required to pay a filing fee she became emotional as she felt she had to choose between paying the fee and holding on to the money on hand to provide for her three children. As a result, she did not complete the process to file the appeal.
12This brings us to her financial situation. As a result of the impoundment the appellant lost her full-time job on December 18, 2020. She required a car to get to her job which was in another city. It appears that her manager terminated her when she learned of the impoundment without enquiring if the appellant had another way to get to work. The appellant provided a copy of her termination letter as evidence on the motion.
13The appellant also had a part-time job in the same city as the full-time job. On or about December 24, 2020 she rented a car in order to get to the part-time job. To obtain the rental car she had to provide a deposit of $200 which she borrowed from her child’s father. She utilized the rental vehicle only until January 4, 2021 as she could no longer afford to pay for it. For a short time after that she was able to get rides to and from work with friends and coworkers. However, they were not reliable and she started missing shifts and had to quit that job.
14Around December 30 or 31, 2020 the appellant applied for Employment Insurance in regard to the loss of her full-time job. It took about two weeks to be approved for EI. Once she received notification that she had been approved she borrowed money from her brother to pay the appeal filing fee, knowing that she could repay him from her EI benefits.
15The appeal form is dated January 18, 2021 and appears to have been received and processed by the Tribunal on January 19, 2021.
ANALYSIS
Did the appellant have a bona fide intention to appeal during the appeal period?
16The first factor I will consider is whether the appellant formed the intent to appeal within the 15-day period. It is my determination that she did. I find the appellant to be a credible witness and I accept her testimony on having commenced the appeal process in December 2020 and that she did not finalize the filing until she was confident that she could afford to pay the filing fee without affecting her parenting obligations. The respondent’s agent submitted that the appellant should have contacted the Tribunal to determine if the filing fee could be waived. In hindsight that would have been wise, but I cannot fault the appellant for not doing so at the time.
What is the length of delay in filing the appeal?
17The delay is significant. She filed the appeal more than two weeks after the expiry of the appeal period, a significant period of time in relation to the 15 day statutory appeal period.
Is the Respondent prejudiced by the delay?
18On this issue, the respondent is prejudiced. As a result of the late filing of the appeal, if the appellant is successful on her appeal the respondent would have to pay for storage charges for most if not all of the 45 days rather than some shorter period had the appeal been filed on time.
Merits of the Appeal
19I am not required to rule on the merits of the appeal but only to assess whether the appellant has a reasonable chance of success.
20The appellant has claimed exceptional hardship. In light of the information regarding the appellant’s circumstances and her evidence regarding her financial situation as disclosed in her testimony on the motion, it is my determination that she does have a reasonable chance of success on this ground.
Conclusion
21These four factors are to be considered in determining if the justice of the case requires that the extension be granted. It is my determination that despite the lengthy delay and prejudice to the respondent, the justice of the case requires that the appellant be given an opportunity to have her appeal heard on its merits.
22Due to the significant delay I am also ordering that the appeal proceed directly to hearing without the need for a case conference. There are two issues to be decided. One is whether the impoundment will result in exceptional hardship as defined in Ontario Regulation 631/98. The appellant can access this regulation by conducting an internet search for canlii.org Ontario regulation 631/98.
23As I indicated above, the appellant also maintains that her friend who is named as the driver of the vehicle in the Notice of Impoundment was not driving. If the appellant’s version of events is accepted, this might fall under section 50.2(3)(b) of the Act - 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.
24The respondent’s agent argued that the Tribunal’s jurisdiction on an appeal of a vehicle impoundment is very limited and that the Tribunal is required to accept the facts of the impoundment as set out in the Notice of Impoundment. The respondent’s agent relied on two cases in which the Tribunal has ruled on this issue. One involved an allegation that the vehicle was not being driven on a highway at the time it was stopped and impounded. The other alleged that at the time the vehicle was impounded it was parked and not being driven. Unlike this appeal neither of the cases relied on potentially fall within the wording of one of the four grounds of appeal.
25As the appellant did not have an opportunity to consider and make submissions on the authorities relied on by the respondent, I will leave it to the adjudicator hearing the appeal to consider this issue. Thus, the second issue to be determined is whether the Tribunal has jurisdiction to rule that if section 50.2(3)(b) of the Act can be applied despite the information in the Notice of Impoundment. If the answer to that is in the affirmative the Tribunal must then determine if it accepts the version of events alleged by the appellant.
26The parties are also ordered to exchange by email, at least two days before the hearing date, and to provide to the Tribunal by email, all documents on which they intend to rely at the hearing. This shall include all legal authorities including statutes and regulations on which they intend to rely. Within the same time period they shall provide each other, by email, with the name, address and telephone number of every witness they intend to have testify at the hearing along with a short summary of the witnesses’ expected testimony. This information shall not be served on the Tribunal.
27Lastly, the Tribunal shall set the earliest possible hearing date for this matter after consulting with the parties on their availability. The hearing will be by teleconference. The Tribunal will provide the parties with a Notice of Hearing setting out the date and time of the hearing as well as the call-in information.
ORDER ON THE MOTION TO EXTEND THE TIME TO APPEAL
28The appellant’s motion to extend the time is granted.
29This matter shall proceed to hearing without the need for a case conference and the parties shall comply with the directions contained in paragraph 26, above.
LICENCE APPEAL TRIBUNAL
_______________________
Theodore Crljenica,
Vice-Chair
Released: January 29, 2021