Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2021-01-14

Tribunal File Number: 13006/MVIA

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 the Act.

Between:

Syed Husain Appellant (Moving Party)

And

Registrar of Motor Vehicles Respondent (Respondent on Motion)

DECISION AND ORDER ON MOTION

Adjudicator: Jacqueline Castel

Appearances:

For the Appellant: Syed Husain, Self-represented For the Respondent: Sanjay Kapur, Agent

Place and Date of Motion: Teleconference January 12, 2021

REASONS FOR DECISION ON MOTION AND ORDER

A. OVERVIEW:

1This is a motion to extend the time to appeal a motor vehicle impoundment to the Licence Appeal Tribunal (the “Tribunal”).

2The appellant’s vehicle was impounded, on September 12, 2020, because it was being operated by a driver whose driver’s licence was under suspension as a result of a Criminal Code conviction. Subsection 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) allows for the impoundment of a vehicle where a police officer is satisfied that the licence of the driver of the vehicle is under suspension.

3The appellant was the driver at the time of the impoundment. This is the second time his vehicle has been impounded in the last year because he was driving the vehicle while his licence was under suspension for a Criminal Code conviction.

4The Tribunal received the appellant’s Notice of Appeal (“NOA”) on November 26, 2020. The deadline for filing the appeal was September 27, 2020. As such, the NOA was filed approximately 2 months after the deadline.

5The appellant is requesting that the 15-day timeline for appealing the impoundment be extended, and the respondent is opposing the request.

6The vehicle was released to the appellant on December 11, 2020, at the end of the 90-day period of impoundment.

7The motion to extend the timeline for appealing the impoundment is denied. Reasons follow.

B. THE ISSUE TO BE DECIDED:

8The 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.

C. THE LAW:

9Pursuant to section 9 of Ontario Regulation 631/98, issued under 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.

10The Tribunal has jurisdiction to extend the time for filing 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.

11In 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.

12The appellant has the onus to establish that the justice of the case requires the granting of the extension, but he or she need not satisfy all four factors. Rather, the analysis requires a balancing of the conclusions reached when applying the facts of the case to the factors.

D. DISCUSSION AND ANALYSIS:

Did the appellant have a bona fide intention to appeal?

13The appellant stated that he called the Tribunal around September 15, 2020 and was told that the timelines had been waived because of the pandemic. He did not recall or have a record of who gave him this information. He also stated that he was waiting for the disposition of his request for a stay of his driving licence suspension before appealing the impoundment.

14Mr. Kapur, the agent for the respondent, stated that the Tribunal did waive timelines for filing appeals, because of the pandemic, until September 14, 2020. He submitted that it is not reasonable to accept that a representative from the Tribunal would have told the appellant on September 15, 2020 that timelines were indefinitely waived due to the pandemic. Mr. Kapur stated that the appellant also should have been familiar with the requirements for filing an appeal, since his vehicle was also impounded on April 11, 2020, and he went through the appeal process with respect to that impoundment in the spring of 2020.

15I found the appellant’s evidence on this point to be vague and lacking credibility. In the absence of corroborating evidence from the staff person at the Tribunal with whom the appellant allegedly spoke, I do not find it credible that that the appellant would have been told that timelines for filing a NOA were indefinitely waived, and that there was no urgency to file the NOA.

16The appellant does not appear to have seriously turned his mind to filing the NOA until after the suspension of his driver’s licence was stayed by the Ontario Superior Court. Even after the stay was granted on November 4, 2020, he waited 21 days before filing a NOA.

17As such, I find that the appellant did not have a bona fide intent to appeal within the 15-day appeal period.

The length of the delay

18On the second factor, the length of the delay, it is my finding that a delay of approximately 2 months, in filing the NOA, is significant.

Prejudice to the Registrar

19The third factor is prejudice to the opposing party. Mr Kapur submitted that there would be prejudice to the Registrar, if the appeal proceeded; specifically, if the appellant was successful on the merits of her appeal, the respondent would be responsible for the fees of towing and storage for the entire impound period. I agree that the Registrar would encounter prejudice by the late filing of the NOA.

Merits of the appeal

20The final factor is a consideration of the merits of the appeal. This does not require me to make a ruling on the merits, but only to assess whether the appellant has a reasonable chance of success.

21In my view, based on the information presented at the motion and in the NOA, the appellant does not have a reasonable chance of succeeding on the appeal.

22The appellant indicated, in the NOA, that he wishes to appeal under section 50.2(3)(b), specifically, on the ground that his licence was not under suspension when the vehicle was detained in order to be impounded. In making this defence, the appellant is relying on the fact that he was granted a Stay of Driving Prohibition Order (the “Order”), which he filed with the Tribunal.

23The Order, dated November 4, 2020, took effect once the appellant entered an undertaking to comply with specified terms and conditions. The Order was not retroactive. As such, the Order was not in effect on September 12, 2020, the date the vehicle was detained in order to be impounded. Consequently, the appellant does not have a reasonable chance of success based on the merits of the appeal.

24In the context of the applicable factors, it is my determination that the justice of the case does not warrant extending the time period for filing the motion. There was no evidence that the appellant intended to appeal the impoundment during the 15- day period of appeal, a significant amount of time has elapsed, there is prejudice to the respondent in proceeding after so much delay, and the appellant does not have a reasonable chance of succeeding on the merits of the appeal.

ORDER ON MOTION

25Accordingly, the motion is denied.