Nikki-Lee Venair v. Registrar of Motor Vehicles, 2021 CanLII 11885

Licence Appeal Tribunal

Date: 2021-02-10

Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment of a Motor Vehicle pursuant to section 55.1 of that Act

Between:

Nikki-Lee Venair Appellant

-and-

Registrar of Motor Vehicles Respondent

MOTION DECISION & CASE CONFERENCE ORDER

Order Made By: Jennifer Friedland, Member

Appearances:

For Appellant: Self-Represented For Respondent: Sanjay Kapur, representative

Date of Motion & Case Conference: February 2, 2021 Date of Order: February 10, 2021

Background

1The appellant’s vehicle was detained and impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the Act) having been driven by the appellant’s now ex- boyfriend whose licence was suspended at the time for a criminal-code related reason.

2This was initially a motion brought by the appellant to extend the time for filing her appeal. I heard submissions from both parties on that issue and following those submissions I granted the motion to extend time with reasons to follow. My reasons are below.

3Following my decision, the motion was converted to a case conference in order that a hearing date could be set without further delay. The timeline for the hearing and for the exchange of witness information and disclosure is set out in my order below.

4The appellant’s vehicle has been impounded for 90-days. She appeals on the basis that the car was stolen at the time it was detained in order to be impounded. She had initially appealed on the grounds of exceptional hardship, however she then learned that the regulations do not allow an appeal on that basis if an applicant has previously had a car impounded under s. 55.1, as is the case here. She therefore amended her Notice of Appeal.

5The appellant asserts in her Notice of Appeal that her ex-boyfriend is abusive, that the keys were in her pocket and he demanded them from her. For her own safety, she did not struggle or fight back. She followed him and got in the car with him. The issue to be determined at the hearing will be whether the circumstances in which the car was taken support a finding of stolen as defined in the caselaw and the legislation. The burden of proof is on the appellant to prove this on a balance of probabilities.

6The procedure at the hearing was explained to the appellant. The appellant was also informed that there are previous cases of the Tribunal available on CanLii.org that she can research in order to familiarize herself with the law that is applied in the various cases. is a free database of Canadian legal decisions. A general search using the key words “MVIA” and “stolen” will produce a number these decisions. The following is a link to this search criteria: Canadian Legal Information Institute |

Reasons for allowing an extension of time

7Ontario Regulation 641/98 states at s.9 that an appeal under s. 50.2 of the Act must be commenced within 15 days. However, the Tribunal has the discretion pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G (the “LATAct”), to extend the time for filing past the 15 days where there are “reasonable grounds for applying for the extension and for granting relief.”

8In determining whether to grant an extension of time under s. 7 of the LAT Act, the Tribunal considers the following factors, which are not strict elements that must be met in each case, but rather a guide to determining whether the justice of the case requires that an extension be granted:

• The existence of a bona fide intention to appeal within the appeal period;
• The length of the delay;
• Prejudice to the other party; and,
• The merits of the appeal.

9In this case the car was impounded Dec 22, 2020. The time to have appealed was January 6, 2021.

10The appellant states that she initially thought this was a 45-day impoundment. She understood this from the officer who told her at the roadside that it would be 45 days. She said she did not think she would appeal that length of impoundment saying that she thought it ‘served her right’ for getting back together with her boyfriend. She claims, however, that as soon as she learned it was a 90-day impoundment, she did want to appeal, however she only learned of that fact upon receiving a notice from the impoundment facility which arrived after the appeal period had passed. The appellant was not sure of the exact date she received notice that it was a 90-day impoundment, but thought it was the Friday before January 11th which is when she says she sent her appeal and the required fee to the Tribunal by registered mail.

11The appellant states that she called the Tribunal on January 19 to follow up on her appeal and was told that no appeal had been received. This is not surprising. There are very few people physically at the Tribunal’s offices during the Covid-19 restrictions to accept mail. The Tribunal prefers electronic submissions during this period. The appellant was also told about the prohibition against appealing on grounds of exceptional hardship for a second impoundment. She says that she therefore amended her notice of appeal and submitted it electronically together with a motion for late filing. Her electronic Notice of Appeal was received January 25, 2021 by the Tribunal, though it is signed January 23, 2021.

12The respondent submits that the appellant knew or ought to have known the impoundment was for more than 45-days because on the Notice to Registrar it says “45-day minimum vehicle impoundment.” Mr. Kapur submits that the appellant should have taken steps to figure out what the actual length of the impoundment was. He further submits that she can’t have formed an intention to have appealed the impoundment within the appeal period because the appeal period had already passed by the time she understood it was for 90 days and formed the intention to appeal. Mr. Kapur also invites me to disbelieve the appellant’s claim that she filed an appeal in writing on January 11, 2021. He urges me to rely only on the documents filed electronically which show the appeal being received electronically by the Tribunal on January 25, 2021.

13I find in the circumstances, that there are reasonable grounds for applying for the extension and for granting relief. In my view, the appellant ought not to be faulted for not being advised of the proper length of the impoundment prior to the appeal period expiring. I accept that she appealed as soon as she learned it was a 90-day impoundment. The subsequent delay occasioned by the Tribunal in not accessing mail sent physically to its offices is institutional delay that ought not to count against the appellant.

14To mitigate any prejudice to either party by any further delay, I issued my decision orally at the motion and suggested that we conduct an immediate case conference. The parties agreed. My order setting out the timelines for the hearing follows.

15Regarding the timing of the hearing, Mr. Kapur expressed that he might wish to call the officer who detained this vehicle; however, he was not sure of the officer’s availability given that this was an impromptu case conference. He suggested that we pick a date the week of February 22, 2021 so that there is time to arrange the officer’s attendance, but requested leeway to move the date forward if possible, once he reaches the officer. I will incorporate a provision into my order below allowing for this.

Further to the above, the Tribunal orders:

16The appellant’s motion for an extension of time to file her appeal is granted.

Hearing Date

17A teleconference hearing will be scheduled for February 24, 25 or 26, 2021. A notice of hearing will be issued confirming the date and providing the call-in numbers.

18If the respondent is able to accommodate an earlier date, the respondent may contact the CMO and the appellant to canvas alternative dates.

Exchange of Documents

19The parties shall provide each other with the following items by February 22, 2021 assuming the hearing date is on February 24, 25, or 26.

a) Any documents intended to be relied on at the hearing b) A list of any witnesses to be called c) A brief summary of each witness’ expected evidence.

20If the hearing date ends up being earlier, the parties shall exchange the above information at least two days prior to the date chosen or as otherwise agreed.

21The disclosure and witness information may be provided by email. A copy should also be sent to the Tribunal.

Hearing Procedure

22At the hearing, each party shall be prepared to present its evidence and make submissions to the hearing adjudicator. Testimony from a witness will be under oath.

23After hearing the evidence and submissions of both parties, the hearing adjudicator will assess the evidence and submissions and make a determination on the issue of whether the vehicle was stolen at the time it was detained in order to be impounded.

24The Tribunal’s power after a hearing is set out at s. 50.2 (5) of the Act. If the appellant is successful, the Tribunal will order the Registrar to release the motor vehicle and the Registrar will pay the associated costs. If the appellant is unsuccessful, the Tribunal will confirm the impoundment, which means that the vehicle will remain in the impoundment until the end of the 90-day period and the appellant will bear the cost of the impoundment (subject to the appellant’s right to bring an action against the driver to recover those costs under s.55.1 (27) of the Highway Traffic Act.)

If the matter is resolved before the hearing

25If the parties reach a resolution before the hearing date, the appellant shall serve the respondent and file with the Tribunal a copy of the Notice of Withdrawal. The Tribunal will thereafter cancel the hearing. The Tribunal’s Notice of Withdrawal form is available at LAT GS: Forms | Tribunals Ontario.

The Tribunal’s Rules Apply

26The Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, (October 2, 2017; amended February 7, 2019) apply to this appeal except where varied by Order of the Tribunal. These Rules can be accessed at: Common Rules of Practice & Procedure (tribunalsontario.ca)