Date: 2021-11-29

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:

Andrew Bogosky

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Colin Osterberg, Member

Appearances:

For the Appellant: Andrew Bogosky, Self-represented

For the Respondent: Stephen Grootenboer, Agent

Heard by Teleconference: November 24, 2021

REASONS FOR DECISION AND ORDER

OVERVIEW

1Andrew Bogosky (the "appellant") seeks to appeal the impoundment of his 2016 Volkswagen motor vehicle under section 55.1 of the Highway Traffic Act (the "Act”).

2The appellant's vehicle was impounded on October 22, 2021, when it was stopped by the police and the appellant was found to be driving it contrary to a condition on his licence prohibiting him from operating a motor vehicle without an approved ignition interlock device. The period of impoundment is 45 days and expires December 6, 2021. The appeal was filed on November 16, 2021, which is the 25th day after the impoundment.

3Section 9 of Ontario Regulation 641/98 provides that an appeal under s. 50.2 of the Act must be commenced within 15 days of the impoundment.

4The appellant brings this motion to extend the time for filing his appeal.

5For the reasons given below, I find that the justice of this case does not warrant an extension of the time for filing the appeal. The appellant’s motion is therefore denied.

ANALYSIS

6Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch G gives the Tribunal the discretion to grant an extension of time where there are reasonable grounds for applying for the extension and for granting relief.

7In Manuel v. Registrar of 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.

8I have considered the evidence relating to each of these factors as they apply to this case.

Bona fide intention to appeal within the appeal period

9The appellant testified that the police officer who detained and impounded the vehicle provided him with a Notice to Registrar which set out his entitlement to appeal and the 15-day appeal period. The appellant says that the same officer described the appeal process to him and that he understood his right to appeal and the time allowed for doing so.

10The appellant says he intended to appeal the impoundment from the day the vehicle was impounded. He says he did not appeal before the expiry of the appeal period because he got busy with work and taking care of his daughter, and the appeal simply slipped his mind. When he remembered he had to appeal, it was past the expiry date.

11Although the appellant may have considered appealing within the appeal period, I do not find this to constitute a bona fide intention to appeal. The appellant knew on the day of the impoundment that he had to file his appeal within 15 days. His evidence is that he took no action toward filing the appeal and did not think about it enough to take any such action, until 25 days later. As will be discussed below, the appellant was having to ask his co-workers for rides to work every day while his vehicle was impounded, and he was able to see his daughter less often than he normally would due to the impoundment, and so it is difficult to believe that he did not regularly think about the impoundment and his right to appeal during the 15-day appeal period. However, even if I accept the appellant’s evidence in this regard, I find that this is not sufficient to show a bona fide intention to appeal.

12I am not satisfied that the appellant has shown a bona fide intention to appeal within the appeal period in the circumstances.

Length of the delay

13I find the delay to be significant in this case. The appeal was filed 10 days late, on November 16, 2021. The appellant presented no satisfactory justification for the delay or the length of the delay.

14The appellant knew about his right to appeal and the period within which he could file the appeal. He testified that it “slipped my mind”. I find that this is insufficient explanation to justify filing the appeal 10 days late.

15I find that the appellant’s delay in filing his appeal was significant and that he presented no reasonable excuse for failing to commence the appeal before the 15-day appeal period had expired.

Prejudice

16The Registrar benefits from a prompt hearing and would be prejudiced by an extension of the time for filing the appeal. If the appellant’s appeal is successful, the Registrar will be required to cover the cost of the impoundment. The earlier the appeal is dealt with, the less it will cost the Registrar to have the vehicle released. The prejudice to the Registrar is the risk of incurring greater expense than it would otherwise have been exposed to.

The merits of the appeal

17On a motion to extend time, the appellant need not establish his case on a balance of probabilities but only that his version of events, if believed, could reasonably result in a favourable outcome.

18The appellant appeals on the ground that the impoundment will cause exceptional hardship and on the ground that he exercised due diligence in attempting to determine that his driver’s licence was not then subject to the condition that he drive only vehicles equipped with an ignition interlock device.

Exceptional hardship

19Section 10 of O. Reg. 631/98 under the Act (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.

20Subsection 10(1) requires the Tribunal to consider whether an alternative to the impounded vehicle is available. If the owner fails to establish that there is no alternative available, then his appeal must fail. If he does establish that there is no alternative available, the Tribunal must then consider whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the vehicle, a threat to public health or safety, or a threat to the environment or property of a community in whose service the vehicle is ordinarily used.

21The Tribunal is generally precluded by s. 10(2) from considering financial or economic loss, loss of employment or an employment opportunity, or loss of education or training or an opportunity for employment or training. However, s. 10(3) provides that the Tribunal can consider these things if the impact of the loss will be upon a person other than the person who was driving at the time the vehicle was impounded and will not be the result of a loss listed in s. 10(2) by that driver. In addition, the owner must prove that the loss will be immediate, significant, and lasting, and that the impact of the loss will be upon a person ordinarily transported by the motor vehicle.

22The Tribunal can never consider whether the impoundment will result in inconvenience to a person.

23In this case, the appellant alleges that the impoundment has made it difficult for him to get to his employment, to have access to his child as much as he would like and to remain active in the community.

24The appellant does not allege that the impoundment will result in a threat to the health and safety of any person ordinarily transported by the vehicle, a threat to public health or safety, or a threat to the environment or property of a community in whose service the vehicle is ordinarily used.

25The appellant admits that he has been able to get rides to work and has not missed any days due to the impoundment. He does not anticipate that he will miss any days from work before the impoundment ends. He has continued to have regular access to his daughter although not as often as he would like.

26The appellant has failed to establish that there are no reasonable alternatives to the impounded vehicle. Even if that were established, the educational and employment impacts are suffered only by the appellant and the consideration of those impacts is prohibited by s. 10(3). The appellant has not presented evidence that he has, or will, suffer exceptional hardship as defined by the Act and Regulation.

27Although the test is a low threshold at this stage, I find that the appellant has failed to prove that his version of events, if believed, could reasonably result in a finding that the impoundment will result in exceptional hardship as it is defined in the Act.

Due diligence

28The evidence at the hearing was that the appellant was convicted of impaired driving on January 4, 2017. His licence was suspended for one year and was then eligible for reinstatement subject to the condition that, on reinstatement, motor vehicles that he drives must be equipped with an approved ignition interlock device. This condition was set out in a Notice of Suspension delivered to the appellant by registered mail on January 12, 2017. At the hearing, the appellant admitted that he was aware of the interlock device requirement but thought that it expired after one year.

29The appellant says that he did not drive at all until about a year before the impoundment. At that time, he did a road test with the Ministry of Transportation and obtained his G class licence. He says that the road test was done in a vehicle without an interlock device and that no one at the Ministry of Transportation mentioned that one was required for him to drive. When the appellant received his licence in the mail, he did not notice that it was subject to a condition “i” requiring the use of an interlock device, although he admits that was printed on the licence.

30After receiving his G class licence, the appellant purchased a vehicle, insured it, and drove it regularly until the impoundment.

31The appellant says that he did not know that his licence was still subject to the interlock device condition when he drove it on the day of the impoundment. He argues that he was justified in believing that he was properly licenced to drive given that he was able to take the road test with an employee of the Ministry of Transportation without the use of an interlock device, and obtain his G licence without anyone telling him that there was a condition that required the device on vehicles that he drives. He also notes that he was able to obtain automobile insurance without the insurer raising the fact that he had this condition on his licence.

32While the appellant may have had reasons that explain his lack of awareness as to the condition on his licence, due diligence requires more than a reasonable belief that there is no condition, and more than assumptions of facts by the appellant. Due diligence requires the appellant to show that he took reasonable steps “in attempting to determine that the driver’s licence…was not then…subject to the condition…”. In this case reasonable steps would include reviewing the Notice of Suspension he received in 2017 and the G class licence he received in 2020, both of which would have provided the appellant with notice that the condition was attached to his licence. If he was confused or uncertain then he should have contacted the Ministry of Transportation to confirm his licence status.

33What constitutes due diligence is context specific. In my view, the appellant was subject to a heightened responsibility because he had been convicted of an offence that suspended his licence and imposed an interlock condition. A person in these circumstances must do more to ascertain their licence status, particularly where the licence itself indicates it is subject to a condition.

34I find that the appellant has failed to show that his version of events, if believed, could reasonably result in a finding that he exercised due diligence under the Act.

35I find that the appellant has failed to demonstrate that he had a bona fide intention to appeal within the appeal period. I find that his delay in filing the appeal is significant, unreasonable, and is prejudicial to the Registrar. I find that there is a low likelihood that the appeal, if allowed to proceed, would be successful on its merits. I find that the justice of the case requires that the request for an extension be denied.

ORDER

36For the reasons set out above, the appellant’s motion to extend the time for filing his appeal is denied.