Licence Appeal Tribunal
W.R. v. Registrar of Motor Vehicles
Date: 2021-02-22
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:
W.R.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Theodore Crljenica, Member
APPEARANCES:
For the Appellant: W.R., Self Represented
For the Respondent: Sanjay Kapur, Agent
Heard by Teleconference: January 6, 2021 and February 12, 2021
REASONS FOR DECISION AND ORDER
OVERVIEW
1A teleconference hearing was held on January 6, 2021 and February 12, 2021 to consider an appeal filed by W.R.(the “appellant”) under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) relating to the 45 day impoundment of his motor vehicle1.
2The appellant’s motor vehicle was impounded on November 18, 2021 on the basis that at the time of impoundment the operator was driving with a suspended licence (the “suspended driver”).
3Also, before me was a motion by the appellant to extend the time to file his appeal and an objection by the appellant to the admission of the respondent’s evidence and reliance on legal authorities.
4For the reasons set out below, the appellant’s request for leave to file his appeal late is granted. The appeal is allowed on the merits and the appellant’s vehicle is ordered to be released.
PRELIMINARY MATTERS
Identity of the Suspended Driver
5This matter involves evidence that establishes that the appellant’s son was convicted of a criminal offence as a young person. This raises the issue for the Tribunal as to whether it ought to make a confidentiality order protecting the identity of the young person.
6It is a fundamental principle of the Canadian legal system that hearings are presumptively open to the public. As such, members of the public are presumptively entitled to attend Tribunal hearings and are also presumptively permitted to access a Tribunal’s adjudicative records regarding a proceeding. See: Tribunal Adjudicative Records Act, 2019, S.O. 2019, c. 7, Sched. 60 (“TARA”) and the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”).
7However, both the SPPA and TARA allow a Tribunal to restrict access to its hearings or its adjudicative records. Both statutes require a tribunal to balance the desirability of having its proceedings open to the public against an interest that is entitled to be protected. Under both statutes, the fact that “intimate or personal matters” may be disclosed constitute a ground upon which a party may ask for a confidentiality order, or upon which a tribunal may order one on its own initiative.
8I am satisfied that the interest in protecting the identity of a young person who has been convicted of criminal offences outweighs the interest of keeping the adjudicative records in this matter fully open to the public. I have therefore decided to make a confidentiality order in respect of this appeal. Rather than a complete ban on access to the adjudicative file, I have decided to make an order that appropriately protects the young person’s identity while still allowing some access to the Tribunal’s records in this matter. Particulars of my order will be set out below.
Appellant’s Motion to Extend the Time to Appeal
9Before proceeding with the merits of the appeal, it is necessary to consider the appellant’s motion to extend the time for filing this appeal. Pursuant 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. This appeal was filed 26 days after the impoundment.
10The 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.
11In 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.
12The appellant bears the onus of establishing that the justice of the case requires that the time to appeal be extended. The appellant does not have to meet 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.
13Having considered the appellant’s evidence, the motion to extend the time to appeal is granted.
14In his testimony the appellant stated that the delay in appealing was because he was not familiar with the appeal process. About 10 days after the impoundment he contacted the police officer who had attended at his home during the overnight hours on the day of impoundment to advise him of the impoundment, to ask about appealing. The officer told him to contact the storage yard where his vehicle was being held as a result of the impoundment. Someone at the storage yard told him to speak to the police. On some unknown date the appellant again contacted the police officer who directed him to the Tribunal’s website.
15The appellant also testified that he did not receive a copy of the Notice of Impoundment until it was sent to him by the Registrar of Motor Vehicles after the 15-day appeal period. It was from this document that he learned of his right to appeal. In addition, in his first attempt to file the appeal the appellant downloaded the wrong form. The combined effect of this is that he did not file his appeal until 26 days after the impoundment.
16In the Tribunal file are printed copies of emails exchanged between the appellant and the Tribunal. The file records show that on November 24, 2020, still within the 15-day appeal period, the appellant emailed Tribunal Ontario’s “feedback” website asking for assistance in getting his car released before the expiry of the 45-day impoundment period. That email was forwarded to the Tribunal and on December 9, 2020, after the expiry of the appeal period, the Tribunal emailed the appellant with information on filing an appeal and was provided with an information sheet.
17On December 11, 2020 the appellant emailed the Tribunal asking if he has to serve the Notice of Appeal on the Registrar of the Alcohol and Gaming Commission of Ontario. On December 14, 2020 he was advised that he was using the wrong form and that he did not have to serve the Registrar of the Alcohol and Gaming Commission of Ontario. On that same date the appellant filed his Notice of Appeal.
18The first factor to consider is if the appellant formed the intent to appeal within the 15-day period. Although there are significant inconsistencies in his testimony the email records in the Tribunal file show that during the 15-day appeal period the appellant contacted Tribunals Ontario to determine what can be done to have his car released. The respondent’s agent argued that the appellant’s November 24, 2020 email does not establish that the appellant intended to appeal within the 15-day appeal period as he did not specifically refer to appealing. The respondent’s agent also submitted that the appellant’s failure to take any other steps until December 9, 2020 exhibits a lack of diligence and suggests that he did not form the intent to appeal within the 15-day appeal period. I disagree. It is not necessary for the appellant to have used the word appeal in his email – it is sufficient that he showed an intent to take steps to have his vehicle released. His failure to take any steps until December 9, 2020 is understandable as he was waiting for a response to the email he sent to Tribunals Ontario. I find that the appellant did form the intent to appeal within the 15-day appeal period and this factor favours extending the time to appeal.
19The next factor to be considered is the length of the delay. The assessment of this factor does not favour extending the time to appeal. The appeal was filed 11 days late, a significant period of time in relation to the 15-day statutory period as well as in regard to the 45 day impoundment period.
20On the third factor, there is significant prejudice to the respondent. The Tribunal makes every effort to have impoundment appeals heard as soon as possible. As a result of the late filing of the appeal, the impoundment period expired prior to the date scheduled for the hearing. The effect of this is prejudicial to the respondent. If the appeal were to be granted the respondent would have to pay for storage charges for 11 or so more days than it would have to pay if the appeal had been filed on time.
21The final factor is a determination of an assessment of the appellant’s chance of success on the merits of the appeal. On the motion the appellant need not establish his case on the balance of probabilities but only that his version of events, if believed could reasonably result in a favourable result. This is to be determined on the facts as alleged in the Notice of Motion and evidence heard on the motion, not retrospectively based on the evidence presented during the appeal hearing. Normally the motion to extend the time to appeal is heard in advance of and separately from the appeal itself. Here, this appellant’s motion to extend and the appeal itself were heard together and it is difficult to neatly separate the evidence. However, I have attempted to only consider the allegations in the notice of motion and evidence presented solely in regard to the motion.
22As for exceptional hardship, it is my determination that the appellant was unlikely to succeed on this ground as it was not alleged that the delayed medical treatment resulted in a threat to the health or safety of the affected family members.
23There is a second ground of appeal, that being that the appellant’s vehicle was stolen. Although in his Notice of Motion the appellant did not use the word “stolen”, he did allege that he keeps his car keys locked up and that his son took the vehicle without permission. These facts, if believed, could form the foundation of a determination that the car was stolen. This factor favours granting the extension.
24Based on the foregoing the appellant has met his onus to establish that the justice of the case requires that the appeal period be extended. I have placed the most weight on the fact that the appellant did form the intent to appeal within the 15 day appeal period and his failure to do so was a result of a lengthy delay in Tribunals Ontario taking action on the appellant’s November 24, 2020 email. This, combined with there being a reasonable chance of success on the merits of the appeal has led to my determination that the justice of the case requires that the extension be granted.
Late Service of the Respondent’s Documents on the Appellant
25After the completion of the evidence in the hearing the appellant raised an objection to the admissibility of the respondent’s documents as they were not served by December 29, 2020 as required by the Case Conference Report and Order (“CCRO”). The respondent’s evidentiary documents, those being the ownership record of the appellant’s vehicle, the suspended driver’s criminal record and his driver’s licence record were not served until December 31, 2020. The legal authorities on which the respondent relied in argument in regard to the merits of the appeal were not served until January 4, 2021.
26I asked the appellant if he feels that he has been prejudiced by the late service of the respondent’s documents. He responded that he was as he did not have time to read the authorities served by the respondent on January 4, 2021. I offered to adjourn the hearing to a later date to give him time to read the authorities, which offer he declined.
27In regard to the respondent’s legal authorities, the respondent’s agent did not fail to comply with the CCRO. The CCRO required that the respondent’s “documents” be served by December 29, 2020. Under rule 9 of the Tribunal’s rules2 the word “document” refers to evidentiary documents and lists of witnesses and brief descriptions of their intended testimony. Thus, legal authorities do not fall within this definition. Some adjudicators who conduct case conferences include a requirement in the CCRO that the legal authorities upon which a party intends to rely be served at the same time as the evidentiary documents. That was not the case here.
28However, the respondent’s evidentiary documents were governed by the CCRO and the respondent’s agent did not comply with the order. He explained that he did not receive the suspended driver’s criminal record until December 31, 2021 and served all of the evidentiary documents by email the same day.
29I am not prepared to exclude the respondent’s evidentiary documents from the evidence as the appellant was familiar with all of the facts that appear in the respondent’s evidentiary documents. As such he was not prejudiced by the late service.
30Although the appellant’s request to exclude the respondent’s evidence is denied, I find it necessary to comment on the delay in service of the respondent’s documents. The respondent’s agent is very familiar with the Tribunal’s procedures and he knows the importance of complying with Tribunal orders. He should have served the evidentiary documents in his possession by the date ordered and explained to the appellant and the Tribunal that he is waiting to receive other documents and will serve them immediately upon receipt. My ruling on the appellant’s objection should not be taken as the Tribunal’s condonation of the respondent’s failure to comply with its order.
ISSUES ON THE APPEAL
31The issues to be determined on the appeal are whether the appellant’s vehicle was stolen by the suspended driver and if the impoundment will result in exceptional hardship.
THE LAW
32Section 50.2(3) of the Act sets out the grounds on which the Tribunal may order the Registrar to release an impounded motor vehicle: This appeal only engages subsections (a) and (d):
(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;
(d) that the impoundment will result in exceptional hardship.
ANALYSIS – WAS THE VEHICLE STOLEN?
33The suspended driver, a young offender, is the son of the appellant and his spouse.
34The appellant testified that he has three sets of car keys, two of which he keeps in a lockbox in which he also keeps prescription medication. The third set he uses on a daily basis. According to the appellant, when he is at home, he usually places this third set in a bag that he locks.
35The appellant takes these precautions because he and his spouse have difficulty with the suspended driver, a young offender, whom the appellant described as having mental challenges. The suspended driver’s primary residence has alternated between group homes and the family home. In November 2019, at a time when the suspended driver was not licenced to drive, he took the appellant’s vehicle and had an encounter with the police which resulted in criminal charges against him.
36According to the Notice of Impoundment the suspended driver was caught driving the appellant’s vehicle shortly before 2:00 a.m. on November 18, 2020. The appellant was not aware that the suspended driver had taken the car until he was awakened by a police officer knocking on the door of the family home during the night. When asked in cross-examination how the suspended driver accessed the car keys the appellant responded that he did not know and could not recall where he had put the keys before going to bed on November 17, 2020.
37The appellant testified that the suspended driver took the vehicle to go to the neighbourhood where the appellant and his family had previously resided, to have a cigarette with a former neighbour. When he was stopped by the police, he was on his way back to the family’s current residence.
38The appellant also testified that the suspended driver was forbidden from going to their former neighbourhood. Although the appellant did not explain why, he did testify that it is fortunate that no one was hurt when the appellant attended there on the date of impoundment.
39Despite some gaps and improbabilities in the appellant’s testimony and although I do not accept that the appellant told the suspended driver “every day” not to drive his car, I accept the general thrust of his testimony. I attribute the nature of some of the appellant’s testimony to the fact that English is not his first language.
40In light of the 2019 encounter with the police, I do accept that the appellant made it clear to the suspended driver that he was not to drive the vehicle. I also accept that the suspended driver was instructed to not return to their former neighbourhood.
41The appellant’s ground of appeal that his vehicle had been stolen by the suspended driver is governed by section 50.2(3)(a) of the Act, set out above. The onus is on the appellant to establish on the balance of probabilities that his vehicle was stolen.
42The term “stolen” is not defined under the Act. As the Act uses a word that has criminal connotations this Tribunal often looks to the Criminal Code, R.S.C. 1985, c. C-46, where “steal” means “to commit theft”. The offence of theft is set out in subsection 322(1) of the Criminal Code and includes the following:
322(1) Everyone commits theft who fraudulently and without colour of right takes, or fraudulently and without colour of right converts to his use or to the use of another person, anything, whether animate or inanimate, with intent,
- to deprive, temporarily or absolutely, the owner of it, or a person who has a special property or interest in it, of the thing or of his property or interest in it;”
43In Marshall v Ontario (Registrar of Motor Vehicles), [2002] OJ No 745, on appeal of a decision of this Tribunal, the Divisional Court ruled that for a vehicle to be stolen for the purpose of section 50.2 of the Act the person who took it must have intended to deprive the owner of it, whether permanently or temporarily. There have been many appeals in which this Tribunal has followed this ruling: see for example, Auto Zone & Rental v. Registrar of Motor Vehicles, 2016 ONLAT 10149, 2016 CanLII 88933 and Sterling v. Registrar of Motor Vehicles, 2020 ONLAT 12739, 2020 CanLII 72479, in which the Tribunal stated:
28The Act provides that an owner may appeal an impoundment on the basis that the [vehicle] was “stolen”. That term is not defined in the Act or Regulation. However, it seems clear that the legislature intended it to mean something different than “taken without consent”. There are at least two provisions in the Act which apply in circumstances where the vehicle was taken “without the owner’s consent”. I conclude that if the legislature intended to allow an impoundment to be appealed on the basis that the vehicle was taken without the owner’s consent it would have used words to that effect.
44Thus, for a vehicle to have been stolen within section 50.2(3)(a) more is required than the suspended driver taking the vehicle without the owner’s consent. The intent of the suspended driver when he or she took the vehicle is an important factor in determining if the vehicle was stolen or merely taken without consent.
45On the facts of this appeal I find that the appellant’s vehicle was stolen by the suspended driver. I have reached this conclusion based on the fact that there has been conflict between the family and the suspended driver who is not amenable to parental control, that in November 2019 he took the appellant’s car that resulted in criminal charges against the suspended driver, and the fact that the appellant usually hid the car keys so the suspended driver would not have access to the vehicle. As for the suspended driver’s intent, the inference I draw from the evidence is that he took the vehicle contrary to the appellant’s instructions in order to do something he was told he was not allowed to do – return to the family’s former neighbourhood. He took the appellant’s vehicle without colour of right with the intent to temporarily deprive the appellant of the vehicle in order to engage in an activity that was forbidden by his father.
ANALYSIS – EXCEPTIONAL HARDSHIP
46Based on my conclusion that the appellant’s vehicle was stolen it is not necessary for me to provide an analysis of the appellant’s claim of exceptional hardship which is governed by section 50.2(3)(d) of the Act and section 10 of Ontario Regulation 631/98. However, I will indicate that I would have dismissed this ground of appeal. He did not satisfy the first step of the test, that being that no alternative to the impounded vehicle was available and that every reasonable option had been considered and inquired into that could eliminate or adequately mitigate any threat or loss arising from the impoundment. Further, the evidence regarding the delay in medical treatment for some family members did not rise to the level of a threat to their health or safety.
ORDER
47To protect the identity of a young person who has been convicted of criminal offence:
(1) The names of any young persons and their families and any identifying factors associated with a child (such as address, race, medical condition, etc.) are confidential and shall not be disclosed;
(2) The names of any child and their families in this decision shall be substituted with pseudonyms or initials that do not identify them;
(3) That anyone who makes an enquiry about this matter shall be informed that it is subject to this order protecting the confidentiality of any child and their family; and
(4) That no one shall publish the names or identifying information of any child referenced in this matter.
48The appellant’s motion to extend the time to appeal is allowed.
49The appeal is allowed and the respondent is ordered to release the appellant’s motor vehicle.
LICENCE APPEAL TRIBUNAL
Theodore Crljenica, Member
Released: February 22, 2021