Date: 2021-01-06

Tribunal File Number: 13063/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:

Jo-Ann Belmore Appellant (Moving Party)

And

Registrar of Motor Vehicles Respondent (Respondent on Motion)

DECISION AND ORDER ON MOTION

Adjudicator: Jacqueline Castel

Appearances:

For the Appellant: Jo-Anne Belmore, Self-represented

For the Respondent: Sonia DeSantis, Agent

Place and Date of Motion: Teleconference January 5, 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 November 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 Tribunal received the appellant’s Notice of Appeal (“NOA”) on December 23, 2020. The deadline for filing the appeal was November 27, 2020.

4The appellant filed a motion on December 23, 2020, requesting that the 15-day time line for appealing the impoundment be extended.

5The appellant’s spouse was driving the vehicle at the time of the impoundment. The appellant was present and allowed him to drive her vehicle knowing he did not have a driver’s licence.

6The appellant borrowed money to pay the impound fees when the 45 day period of impoundment elapsed. As such, the vehicle has been released to the appellant.

7The motion 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 on November 12, 2020, when the vehicle was impounded, the police officer gave her a Notice of Motor Vehicle Impoundment. According to the appellant, there was no information about a right to appeal the impoundment on the backside of this form. The appellant stated that she did not receive the Notice of Impoundment and Release until December 10, 2020, and it was only upon receiving this form that she became aware that she had a right to appeal the impoundment. The appellant stated that it took her some additional time to contact the Tribunal and file the paperwork respecting the appeal and motion, since she was working as a cashier and had limited time. She acknowledged that she was not sick or hospitalised at the time.

14Ms DeSantis, the agent for the respondent, pointed out that information about appealing an impoundment is available on-line and submitted that the appellant did not attempt to explore the option of appealing the impoundment during the 15- day appeal period.

15There was no evidence before me to suggest that the appellant made efforts to research or pursue the option of appealing the impoundment during the 15 day appeal period. As such, I find the appellant did not have a bona fide intention to appeal the matter within the 15-day appeal period.

The length of the delay

16On the second factor, the length of the delay, it is my finding that a delay of 26 days, in filing the NOA, is significant.

Prejudice to the Registrar

17The third factor is prejudice to the opposing party. Ms DeSantis 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 45 day period of impoundment. I agree that the Registrar would encounter prejudice by the late filing of the NOA.

Merits of the appeal

18The final factor is a consideration of the merits of the appeal. This does not require me to make a determinative ruling on the merits, but only to assess whether the appellant has a reasonable chance of success.

19In 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.

20The appellant indicated, in the NOA, that she wishes to appeal based on the ground that she exercised due diligence, in attempting to determine that the driver had a valid licence, at the time of the impoundment, and on the ground of exceptional hardship.

21The appellant admitted that she was aware that the driver did not have a driver’s licence, but that she believed his Criminal Code suspension had expired. Ms DeSantis stated that the Criminal Code suspension expired in 2000 but before the driver’s licence could be reinstated, he needed to complete a remedial program, and the driver has not completed the remedial program. Given that the appellant admitted to being aware that the driver did not have a driver’s licence, she does not have a reasonable chance of establishing the defence of due diligence.

22Section 10 of O.Reg. 631/98 (the “Regulation”) sets out the criteria and factors that the Tribunal would have to consider in determining whether exceptional hardship will result from an impoundment. In order to establish exceptional hardship, the first requirement set out in 10(1) of the Regulation is that there is no alternative to the impounded vehicle. If the Tribunal finds there is an alternative to the impounded vehicle, it need not consider any other requirements.

23In this case, the appellant stated that she relied on her boss, friends and family members to assist her with transportation during the period of impoundment. As such, the appellant had an alternative to the impounded vehicle during the period of impoundment and would not succeed on the ground of exceptional hardship.

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 some 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.