Date: 2021-06-22

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:

Kristine Belchamber

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Colin Osterberg, Member

Appearances:

For the Appellant: Kristine Belchamber, Self-represented

For the Respondent: Sonia De Santis, Agent

Heard by Teleconference: June 21, 2021

REASONS FOR DECISION AND ORDER

OVERVIEW

1Kristine Belchamber (the "appellant") seeks to appeal the impoundment of her 2019 Jeep Cherokee motor vehicle under section 55.1 of the Highway Traffic Act (the "Act”).

2The appellant's vehicle was impounded on May 15, 2021, when it was stopped by the police and Michael Chartrand was found to be driving it while his licence was under suspension.

3This was 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 June 9, 2021, which is the 25th day after the impoundment. I heard submissions from the appellant and the representative of the respondent on whether an extension of time should be granted.

4For the reasons given below, I find that an extension of time is not warranted in this case. The appellant’s motion is therefore dismissed.

ANALYSIS

5Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch G (the “LAT Act”) 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.

6In 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.

7I 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

8The appellant gave evidence at the motion hearing. She stated that she did not file an appeal within 15 days of the impoundment because she did not know that an appeal was available. The appellant stated that she did not receive any documentation from the Registrar setting out her right to appeal to the Tribunal until May 31, 2021 or June 1, 2021. She did not file her appeal until June 9, 2021, because she thought the appeal process seemed like a lot of work and she did not think her appeal would be successful. The appellant changed her mind after she spoke with her father and he told her to file the appeal.

9Before receiving documentation from the Registrar, the appellant had not conducted any investigation into whether there was an appeal available to her or whether there was any other way of getting her vehicle back before the end of the 45 day impound period. Even after becoming aware of the appeal process, the appellant had no intention of appealing until convinced to do so by her father more than a week later.

10I find that the appellant did not have a bona fide intention to appeal within the appeal period. She ought to have made some effort to determine whether there was an appeal process available to her within the appeal period and had no reasonable excuse for failing to do so. Even when she became aware of the appeal process, the appellant decided not to pursue an appeal because it was too much work and she did not believe that she would be successful.

Length of the delay

11I find the delay to be significant in this case. The deadline for appealing was May 31, 2021. The appeal was filed ten days late, on June 9, 2021. The impoundment is scheduled to expire June 29, 2021. The appellant delayed filing her appeal for eight or nine days after finding out that she had the option to appeal. If the motion is granted, the hearing is unlikely to take place until after the impoundment period has ended. The appellant presented no satisfactory justification for the length of the delay. As discussed below, the delay will likely result in prejudice to the Registrar.

Prejudice

12The 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

13On a motion to extend, the appellant need not establish her case on a balance of probabilities but only that her version of events, if believed, could reasonably result in a favourable result.

14The appellant appeals on the ground of exceptional hardship. In order to rely on this ground of appeal, the appellant must first establish that there is no alternative to the impounded vehicle available to her. If the appellant fails to prove that no alternative to the impounded vehicle is available, then her appeal based on exceptional hardship will fail.

15The appellant testified that she lives with her parents and her 11-year-old daughter. The appellant’s daughter is attending school during the day by videoconference. The appellant’s parents own a vehicle which they allow the appellant to use when requested.

16The appellant works at Fedex, which is near the Ottawa airport. Since the impoundment, the appellant has missed no days from work. She bicycles to work occasionally. She takes cabs. She has gotten rides from co-workers. And she has borrowed her parents’ vehicle. She expects to continue to find ways of getting to work for the remainder of the impoundment period.

17In terms of personal activities such as grocery shopping and driving her daughter to activities, the appellant is usually able to borrow her parents’ vehicle. She is also able to use public transportation, taxi, or ride-sharing services.

18The appellant argues that the impoundment has been terribly inconvenient for her and that she dislikes asking others to drive her places or for the use of their vehicles. While I am sympathetic to the appellant’s concerns, inconvenience is not a factor that the Tribunal may consider for the purposes of determining whether the impoundment is likely to result in exceptional hardship.

19Notwithstanding that this stage of the test is a low threshold, I find that the appeal in this case is likely to fail should a hearing take place. It is up to the appellant on a motion for an extension of time to demonstrate the merits of her case. I am not persuaded that her appeal could be successful based on exceptional hardship.

CONCLUSION

20In the circumstances, I find that the appellant has not demonstrated that she had a bona fide intention to appeal within the appeal period. I find that her delay in filing the appeal was significant and is prejudicial to the Registrar. I find that there is no merit to her appeal. I conclude that the appellant has failed to establish reasonable grounds for an extension of time to file the appeal and that the justice of the case requires that the request for an extension be denied.

ORDER

21For the reasons set out above, the appellant’s motion to extend the time for filing her appeal is dismissed.

LICENCE APPEAL TRIBUNAL

____________________________

Colin Osterberg, Member