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 that Act
Between:
Darlene Farkas
Appellant
-and-
Registrar of Motor Vehicles
Respondent
MOTION DECISION AND ORDER
ADJUDICATOR: Joanne E. Foot, Member
OBSERVING: Colin Osterberg, Member
APPEARANCES:
For the Appellant Self-Represented
For the Registrar Sonia De Santis, Agent
Heard by Teleconference: January 19, 2021
REASON FOR DECISION AND ORDER REGARDING MOTION
OVERVIEW
1This is a motion to extend the time to appeal a motor vehicle impoundment.
2The appellant’s vehicle was impounded on Saturday, December 19, 2020 because it was being operated by a driver whose driver’s licence was under suspension as a result of a Criminal Code conviction. The Tribunal received the appellant’s Notice of Appeal on January 14, 2021. The deadline for filing the appeal was Monday, January 4, 2021.
3For the reasons that follow, the motion is allowed.
ISSUE FOR DECISION
4The issue to be decided in this motion is whether the appellant has established reasonable grounds to support an extension of time in which to file her appeal.
LAW
5Pursuant 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.
6The 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, 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.
7In 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.
8The appellant has the onus to establish that the justice of the case requires the granting of the extension, but it is not necessary to satisfy all four factors. Rather, the analysis requires a balancing of the conclusions reached when applying the facts of the case to the factors.
DISCUSSION AND ANALYSIS
Bona Fide Intention to Appeal
9The appellant stated that she had made several attempts to file her appeal with the Tribunal within the time limitation that did not meet with success. In particular, she tried to fax her appeal from her home fax machine. This fax did not go through and, thinking that this was caused by a problem with her machine, she went to a public fax machine and, once again, attempted to send her appeal to the Tribunal. This attempt was also unsuccessful. The appellant also indicated that she had attempted to file her notice of appeal by email, but this attempt also failed. Quite candidly, she admitted that this was a result of a mistake in the email address that she did not discover until days later.
10The appellant also reported attempting to contact the Tribunal by telephone on the “800” number on several occasions to obtain assistance with the filing of her appeal. She notes this in her Notice of Appeal and described that each time, following the appropriate menu selection and waiting, a recording came on saying something to the effect that the line was not in service, with the call then being disconnected. The appellant submitted four screenshots from her mobile phone showing calls made to the Tribunal on December 20, 27, 30, 2020 and January 2, 2021. The appellant also contacted the officer who impounded her vehicle in hopes that he could assist her with the appeal.
11Ultimately, Ms. Farkas discovered her error in the email address and was able to file her appeal electronically. Her initial notice of appeal was rejected by Tribunal administrative staff because she was pursuing the ground of “exceptional hardship”. It was explained to her the Act did not permit her to pursue this ground as she had succeeded on that ground in a prior motor vehicle impoundment case in 2016.
12Ms. Farkas took that information to mean that she was not permitted to file any sort of appeal. This misconception was ultimately cleared up and she filed her appeal on January 14, 2021.
13I accept the appellant’s account of the steps she took to file her appeal on time and the roadblocks she encountered. I find that these are indicative of a bona fide intention to prosecute her appeal.
Length of Delay
14The total length of the delay in this case was ten days. I also take note that her 15 day appeal period contained three statutory holidays, making it 20% functionally shorter than it would be at almost any other time of the year. In that light, I find that the delay of ten days in filing her Notice of Appeal is not significant.
Prejudice
15The Registrar asserts that if the appellant is successful on the merits of her appeal, the respondent would be responsible for the entirety of the fees payable for towing and storage, rather than some lesser amount that may have accrued if the hearing had been brought on earlier. The 45 day impoundment period will conclude on February 2, 2021, 28 days after the filing deadline. It is theoretically possible that the case conference and hearing could be scheduled and held and that the decision be written and released in a 28-day time frame. More often, however, a decision is released close to or after the expiry of the impoundment period.
16I am prepared to concede that some amount of prejudice might be caused to the respondent by the ten day delay in filing the Notice of Appeal., that is, the ten additional days of impoundment fees.
Merits of the Appeal
17I am not required to make a definitive determination on the merits of the case, but only to assess whether the appeal has merit.
18In her Notice of Appeal the appellant raised only the “stolen” ground of appeal, that the vehicle was stolen at the time that it was detained to be impounded. The Notice of Appeal discloses that the driver of the impounded vehicle took the vehicle without her knowledge or consent while she was having a nap in the early afternoon. The appellant confirmed this in her submissions on the motion.
19The Tribunal’s case law discloses that there is not unanimous agreement on the meaning of the term “stolen” in this ground of appeal. However, it is most often interpreted to include circumstances where the driver intended to deprive the owner of the use of the vehicle, even if temporarily. On this basis, I find that the appellant’s appeal has merit. Of course, the actual result will depend upon other factors considered at the hearing and evidence presented in that regard.
20I have assessed the information provided by the parties in the context of the four factors described. Based on these factors I conclude that the justice of this case warrants the extension of the time period for filing the motion to January 14, 2021.
ORDER
21The motion is allowed and the filing period for the Notice of Appeal is extended to January 14, 2021.
LICENCE APPEAL TRIBUNAL
_______________________
Joanne E. Foot, Member
Released: January 21, 2021