Date: 2021-08-16

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:

Taylor Frayne

Appellant

and

Registrar of Motor Vehicles

Respondent

MOTION ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Taylor Frayne, Self-Represented

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: August 10, 2021

ORDER ON MOTION

A. Overview

1A hearing was held on August 10, 2021 by teleconference to consider the appellant’s motion for an Order granting an extension of time for the appellant to file an appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“Act”) from the impoundment of her vehicle on June 19, 2021 by the Registrar of Motor Vehicles.

2The appellant submits that the time for her appeal should be extended. She did not appeal within the 15-day appeal period due to the extent of time it took to receive information regarding her case. The appellant also submits that she made efforts to communicate the appeal and to have proper information received and communicated for this appeal. The appellant submits that she has spoken to the police officer, the police station, the impound yard, the Tribunal, the Registrar, the accused, the Crown and the OPP and all of this took longer than 15 days to get paperwork to begin the appeal process.

3The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (“HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. Here, the appellant testified that her grounds for appeal under s. 50.2 (3) of the HTA are (b), that the driver’s licence of the person driving the motor vehicle at the time of impoundment was not then under suspension, (c), that the appellant exercised due diligence in attempting to determine that the driver’s licence of the driver was not under suspension at the time of impoundment, and (d), that the impoundment will result in exceptional hardship to the appellant.

B. DATE FOR CASE CONFERENCE - IF appellant’s MOTION is SUCCESSFUL

4At the beginning of the hearing, both the appellant and the respondent’s agent confirmed that they understood a case conference will be held by the Tribunal on August 17, 2021 at 1:30 p.m. by teleconference only if the appellant is successful on this motion for extension of time. If the appellant’s motion is not successful, there will not be a case conference and the appellant’s appeal will not be allowed to proceed.

C. issue:

5The issue to be addressed in this hearing is solely whether the Tribunal should extend the time for the appellant to file her appeal.

D. RESULT:

6The appellant’s motion to extend the time to file her appeal is denied. There will not be a case conference held on August 17, 2021 at 1:30 p.m. The appeal shall not proceed.

E. LAW AND ANALYSIS:

Should the Tribunal extend the time for the appellant to file her appeal?

7Section 9 of O. Reg. 631/98, entitled “Long-Term Vehicle Impoundment Under Section 55.1 of the Act”, states that an appeal of an impoundment under s. 55.1 of the Act must be filed within 15 days of the impoundment.

8The appellant’s motion is to extend the time for filing her appeal. Pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G the Tribunal may extend the time to file an appeal if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief.

9To succeed in the motion the appellant must show that there are reasonable grounds for applying for the extension and for the Tribunal granting an extension of time. The Tribunal must consider the following factors as set out in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.) when deciding whether to grant an extension of time to file an appeal:

1. The existence of a bona fide (good faith) intention to appeal [within the appeal period];

2. The length of the delay;

3. Prejudice to the other party; and

4. The merits of the appeal.

10The Divisional Court determined that the factors to be considered are simply a guide to assist in determining the justice of the case and should not be slavishly followed.

11The appellant testified that the driver of her vehicle at the time of impoundment (“driver”) made her aware of the impoundment on the day of or the day after the impoundment and gave her the yellow and pink sheets showing the impoundment and where her vehicle was being held. The appellant admitted that she skimmed the front page but didn’t see the back of this document. As a result, she didn’t know that she could appeal the impoundment at that time. The appellant said she called the MTO, did a google search trying to find out about the impoundment, left messages for the police officer who impounded the vehicle and made inquiries.

12The appellant testified that she got a notice in the mail from the MTO about two weeks after the impoundment and became aware at that time that she could appeal the impoundment because she read the back of the notice.

13The appellant’s testimony about when she actually submitted her Notice of Appeal was corrected by the appellant during the hearing and was unreliable. The appellant said she didn’t know how to appeal and called the Tribunal who emailed her the appeal documents about July 8, 2021. The appellant said the driver’s mother prepared the Notice of Appeal dated July 9, 2021, she signed it and the driver’s mother sent it to the Tribunal but it was rejected because of credit card information sent. The appellant also testified that she sent in the appeal forms herself on the first or second of July, 2021, on or about July 5, 2021, or on or about July 9 or 12th or 13th but the Tribunal rejected the documents because she included her credit card information.

14The appellant testified that on July 10, 2021 she left the Canada until July 28, 2021 and did not use her email during that time because she was on vacation and under stress and needed a break from email. She also testified that she did not telephone Canada during this vacation because of the expense. Contrary to this, the appellant said she sent an email to the Tribunal and left the Tribunal a telephone message on July 12, 2021 that she hadn’t heard from the Tribunal about her appeal. Further, she testified that she re-sent the appeal to the Tribunal on July 26 and she got an email from the Tribunal on July 26, 2021 acknowledging her appeal. How the appellant did all this while out of the country and not using her email or her telephone was not satisfactorily explained.

15I find that the appellant filed her Notice of Appeal with the Tribunal on Sunday, July 25, 2021 consistent with the Tribunal records, although it is dated July 9, 2021. The appellant testified that the only Notice of Appeal she ever signed is dated July 9, 2021. The appellant provided no emails, copies of telephone records or any other documentation to support her testimony that she sent her Notice of Appeal to the Tribunal earlier than July 25, 2021 and it was rejected by the Tribunal.

16The appellant’s vehicle was impounded on June 19, 2021. The Notice of Appeal was received by the Tribunal on July 25, 2021.

17At the time of the hearing, the impoundment period had expired and the appellant had paid the impoundment charges and retrieved her impounded vehicle. The appellant testified that the impound fees had to be paid by a family member and repayment of this cost is a financial hardship to her.

(i) Bona fide (good faith) intention to appeal within the appeal period

18The respondent submits that the appellant has not demonstrated a bona fide intention to appeal within the statutory deadline, and I agree with this submission. The appellant’s testimony establishes that she did not and could not demonstrate a bona fide (or good faith) intention to appeal within the 15 day appeal period because she testified that she did not know she could appeal to the Tribunal until some two weeks after the impoundment when she received the notice of impoundment in the mail. The statutory deadline expired 15 days after the impoundment. Unfortunately, the appellant did not read the documents given to her at the time of impoundment or appeal within the 15 days but instead relied on others to return her phone calls or give her assistance. The only reliable evidence of intention to appeal is the Notice of Appeal sent July 25, 2021 which is several weeks outside of the 15-day appeal period.

(ii) Length of the delay

19The appellant filed her appeal on July 25, 2021, some 20 days late. Even after she knew about her right of appeal some two weeks after impoundment, the appellant still did not file her appeal until approximately three weeks later. There has been substantial delay. The appeal was filed some 35 days after the impoundment occurred.

(iii) Prejudice to the other party

20The 45-day impoundment period expired prior to this hearing. The Registrar submitted that prejudice would be suffered by the Registrar if the motion was granted because if the appeal goes forward and is successful, the Registrar would be required to pay greater impoundment fees than had the appeal been filed within the legislative time. I agree with this submission.

(iv) Merits of the appeal

21The Registrar also submits that the appeal has no reasonable chance of success even if the time to appeal is extended. I agree with this submission. At the hearing, the burden would be on the appellant to prove that (b), that the driver’s licence of the person driving the motor vehicle at the time of impoundment was not then under suspension, (c), that the appellant exercised due diligence in attempting to determine that the driver’s licence of the driver was not under suspension at the time of impoundment, and (d), that the impoundment will result in exceptional hardship to the appellant.

22The merits of the appeal would not appear to be strong. With respect to the appellant’s ground of appeal (b), the records of the driver’s driving licence put forward by the Registrar show that the driver’s licence was suspended until August 16, 2021 which was several weeks after the impoundment.

23With respect to appellant’s ground of appeal (c), the driver’s driving licence also had an expiry date of February 19, 2021 and was subject to an ignition interlock condition, both of which would have been shown on the driver’s driving licence. Although the appellant says she looked at the driver’s driving licence herself on May 24, 2021 and confirmed that it had not expired, this is unlikely to be the case given the Registrar’s records. The appellant attempted to explain this by testifying later that she understood the driver was unable to renew his licence in February 2021 because of COVID 19. Even if the appellant looked at the driver’s driving licence, it is unlikely that the appellant could prove at a hearing that she exercised due diligence in attempting to determine that the driver’s licence of the driver was not under suspension at the time of impoundment given the suspension record, expiration date and the ignition interlock condition. Even if proven at the hearing, it is also unlikely that looking at the driver’s driving licence three weeks before loaning the vehicle to him on June 19, 2021 constitutes due diligence on that date.

24With respect to appellant’s ground of appeal (d) I find that the exceptional hardship argument is also not likely to succeed at a hearing because the appellant testified that she had alternatives to the impounded vehicle during the impoundment period including receiving rides from friends and family, and use of taxicabs. If she had alternatives to the impounded vehicle, then her appeal would fail on this ground as the adjudicator need not consider any other factors.

25To succeed on a motion for an extension of the time to file an appeal, the burden is on the appellant to demonstrate reasonable grounds on which an extension of time should be granted. I find that the appellant has not demonstrated that she had a bona fide (or good faith) intention to appeal within the time for appeal. I find that the delay is significant. There would be prejudice to the respondent resulting from the delay and the merits of the appeal are relatively weak. I therefore find that appellant failed to establish reasonable grounds for an extension of the time to file her appeal. The appellant’s motion is dismissed.

ORDER:

26The appellant’s motion to extend the time to file her appeal is denied. There will not be a case conference held on August 17, 2021 at 1:30 p.m. The appeal shall not proceed.