Date: 2021-04-08

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:

Kristy A. Pomeroy

Appellant

-and-

Registrar of Motor Vehicles

Respondent

MOTION DECISION & CASE CONFERENCE ORDER

Order Made By: Jennifer Friedland, Member

Appearances:

For Appellant: Dermot Pomeroy, representative

For Respondent: Stella Velocci, representative

Date of Motion & Case Conference April 7, 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 an acquaintance of the appellant’s husband 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. Ontario Regulation 641/98 states at s.9 that an appeal under s. 50.2 of the Act must be commenced within 15 days of the impoundment. The appellant’s appeal was filed on the 20^th^ day following the impoundment. I heard submissions from both parties’ representatives on whether an extension of time should be granted. Following those submissions, I granted the motion to extend time to file and the motion was converted to a case conference in order to secure an early date for the hearing.

Reasons for granting the extension of time

3My authority to have granted the extension of time comes from s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G. which 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.” In determining whether to grant an extension of time on that basis, the Tribunal considers a number of factors. Applying the relevant factors, I found that:

a) The appellant had a bona fide intention to appeal. The appellant was represented by her husband, Mr. Pomeroy, on this motion. He described the various steps that he and his wife took to try to obtain the release of their vehicle. While, other steps may have been more prudent, this does not diminish their intent to appeal. I am satisfied that immediately upon becoming aware of the avenue of appeal, the appellant endeavoured to file the appeal. However, Mr. Pomeroy described facing a further brief delay based on not being familiar with filing online pdfs. The appellant obtained the assistance of the Tribunal and the forms were then filed.

b) The delay was not long. The appeal should have been filed by Friday, March 19, 2021 and was filed the next Wednesday, March 24, 2021.

c) Any prejudice to the Registrar occasioned by the delay could be mitigated by immediately convening a case conference and setting an early hearing date; and

d) While the merits of the appeal were only touched on briefly during the motion, Mr. Pomeroy described that the family is suffering financially without his truck for work, including not being able to pay for utilities. Whether this will meet the difficult test for exceptional hardship does not need to be determined at this stage. Suffice to say, the appeal is not frivolous.

4Given all of the above factors, I determined there were reasonable grounds to grant the extension.

Next Steps as discussed at the Case Conference

5The parties have agreed on dates for the hearing. As set out in the order below, the Tribunal will pick a date from the options provided and advise the parties. The hearing will be by telephone. Dates were also agreed upon for the exchange of any documentary evidence that either side wishes to rely on at the hearing.

6It is expected that the appellant’s husband, Mr. Pomeroy – who is also her representative -- will attend on the appellant’s behalf and give evidence on the two grounds of appeal.

7As per the Order below, if any witnesses are to be called by the appellant other than Mr. Pomeroy or the appellant, notice must be provided to the Registrar by Monday April 12, 2021 in accordance with the timelines agreed to at this case conference. As well, the appellant should provide a brief description of what the witness is expected to testify about at the hearing.

The issues to be decided on the appeal

8The appellant appeals on the grounds of due diligence and exceptional hardship.

9As discussed at the case conference, it is the appellant’s burden to prove on a balance of probabilities that she meets the test for the release of her vehicle on one of the above grounds (she only needs to be successful on one).

10I advised at the case conference that I would briefly outline the requirements of the above grounds. The appellant is also encouraged to review previous cases of the Tribunal on these issues. These decisions can be accessed through CanLii.org – which is a free database of Canadian legal decisions. The relevant links are below.

Due Diligence

11Regarding the ground of due diligence, the appellant has the burden of proving on a balance of probabilities (meaning more likely than not), that she took “all reasonable care” to avoid letting a suspended driver drive her car.

12Prior decisions of the Tribunal on the issue of “due diligence” can be found on CanLii.org. A basic search using the keywords, “MVIA” and “due diligence” can be started here.

Exceptional Hardship

13The test for exceptional hardship was also discussed at the case conference. I informed the parties that I would summarize the test in this report, as it is not particularly straight forward.

14The test for exceptional hardship is set out in Ontario Regulation 631/98 which is a Regulation made under the Highway Traffic Act.

15The first part of the test requires the appellant to show that he or she has no alternative to the impounded vehicle. The law relating to whether there is an alternative to an impounded vehicle is set out in s. 10 (4) of the Regulation, which states as follows:

(4) In order to show that no alternative to the impounded motor vehicle is available under subsection (1) or clause (3) (a), the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.

16If the appellant satisfies the Tribunal that there is no alternative to the impounded vehicle, the Tribunal must then consider whether not having the impounded vehicle, or any alternative, would result in a threat to health and safety as set out in s. 10 (1) of the Regulation.

17Sections 10 (2) and 10 (3) of the Regulation together establish other factors (other than a threat to health and safety) that may or may not be considered by the Tribunal in certain circumstances in determining whether exceptional hardship will result from the impoundment.

18Under these provisions, read together, the Tribunal cannot ever consider the factor set out in s. 10 (2) (a) which is, “inconvenience to any person.”

19With respect to the other factors in s. 10 (2), namely: (b) financial or economic loss to any person; (c) loss of employment or employment opportunity to any person; and (d) loss of education or training or of an educational or training opportunity to any person, the Tribunal may only consider those factors, if, as set out in s. 10(3) (a), and discussed above, the appellant demonstrates that there is no alternative to the impounded vehicle, and

(b) the loss will be immediate, significant and lasting;

(c) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and

(d) the impact of the loss,

i) will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and

ii) will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c), or (d).

20The parties are encouraged to read previous decisions of the Tribunal on the issue of exceptional hardship in preparation for the hearing. A broad search of such cases using the keywords “MVIA” and “exceptional hardship” can be started from this link here to.

21Further to the above, I order the following:

ORDER

22The appellant’s motion for an extension of time to file her appeal is granted.

Hearing Date

23A teleconference hearing will be scheduled for one of the following dates (in order of preference as agreed at the case conference): April 14 at 9:30 am; April 15, 2021 at 1:30 pm; or April 13, 2021 at 9:30 am.

24A notice of hearing will be issued confirming the date and providing the call-in numbers.

Exchange of Documents

25The Registrar will send a copy by email to the appellant and to the Tribunal of any documents it intends to rely on at the hearing before the end of the day on Friday, April 9, 2021.

26The appellant will send a copy by email to the Registrar and to the Tribunal of any documents she intends to rely on at the hearing before the end of the day on Monday, April 12, 2021.

27If the appellant intends to call any witnesses other than Mr. Pomeroy, she should notify the Registrar by April 12, 2021 and provide a brief description of what the other witnesses will testify about.

Hearing Procedure

28At 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.

29After hearing the evidence and submissions of both parties, the hearing adjudicator will assess the evidence and submissions and make a determination on the issues on the appeal.

30The 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 45-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

31If 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

32The 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)