Date: 2021-08-13

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:

Natasha Carroll

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Colin Osterberg, Member

Appearances:

For the Appellant: Natasha Carroll, Self-represented

For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: August 4, 2021

REASONS FOR DECISION AND ORDER

OVERVIEW

1Natasha Carroll (the "appellant") brings this motion to extend the time to commence an appeal following the impoundment of her 2020 Hyundai Elantra motor vehicle under section 55.1 of the Highway Traffic Act (the "HTA”).

2The appellant's vehicle was impounded on June 13, 2021, when it was stopped by the police and the appellant’s boyfriend, Eric Da Silva, was found to be driving it while his licence was under suspension. The appellant thought that the period of impoundment was 45 days. The appellant learned later that, because of a previous impoundment of a vehicle owned by her, the suspension was for 90 days. The appeal was filed on July 22, 2021, which is the 39th day after the impoundment. The appellant alleges that the vehicle was stolen when it was detained for the purpose of impoundment.

3Under s. 9 of Ontario Regulation 631/98, an appeal of a vehicle impoundment is required to be commenced within 15 days of the impoundment. The appellant brings this motion to extend the time for filing her appeal pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999, c. 12, Sch. G, which allows the Tribunal to extend the time to commence an appeal where there are reasonable grounds for doing so.

4For the reasons given below, I find that the justice of this case warrants an extension of the time for filing the appeal. The appellant’s motion is allowed.

ANALYSIS

5In 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.

6I 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

7According to the appellant, she did not intend to appeal the impoundment until she realized it was a 90-day impoundment rather than a 45-day impoundment. She learned this fact 32 days after the vehicle was impounded when she contacted the impound lot to find out how to have the vehicle released.

8The appellant testified that her vehicle had also been impounded in December 2020 and that she knew about the 15-day period to file an appeal at that time. The appellant appealed the December 2020 impoundment within the 15-day period. The ground on which she appealed in that case was that she exercised due diligence to determine whether Mr. Da Silva had a valid licence when she allowed him to drive the vehicle.

9With respect to the present impoundment, the appellant initially decided not to appeal, and to pay the impound fees when it was time for the vehicle to be released. The appellant testified that Mr. Da Silva was violent and abusive to her in the past and that, if she appealed this impoundment on the basis that Mr. Da Silva had stolen the vehicle, she would be in danger. She decided that, in order to keep the peace with Mr. Da Silva, she would pay the impound costs herself.

10When the appellant contacted the impound lot to arrange for payment and release of the vehicle, she was told that the impoundment was for 90 days due to the previous impoundment. The appellant then decided to appeal because she could not afford to pay the impound costs for the 90-day impoundment period.

11Based on the above evidence, I find that the appellant did not intend to file an appeal within the appeal period. Although this weighs against extending the time for appeal, the appellant’s evidence as to the reason she decided not to appeal within the 15-day period is compelling and lessens the impact of this factor in this case.

Length of the delay

12I find the delay to be significant in this case. The deadline for appealing was June 28, 2021. The appeal was filed 24 days late, on July 22, 2021. The appellant testified that she learned that the suspension was for 90 days on July 14, 2021 and that it took her another 7 days to put the materials together for the appeal. The appellant explained the delay, in part, by stating that she was willing to accept the cost of the 45-day impoundment to avoid a conflict with Mr. Da Silva, however she did not provide satisfactory justification for waiting a further 7 days before appealing once she knew the actual period the vehicle would be impounded.

13I find that the appellant’s delay in filing this appeal was significant and that she presented no reasonable excuse for failing to commence the appeal 7 days earlier when she learned that the impound period was 90 days and not 45 days.

Prejudice

14The 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

15On a motion to extend time, 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 outcome.

16Section 50.2(4) of the HTA precludes the appellant from appealing this impoundment on the basis that it will result in exceptional hardship under s. 50.2(3)(d) of the HTA because there was a previous impoundment of a motor vehicle owned by the appellant. Also, the appellant admits that Mr. Da Silva’s licence was under suspension when it was impounded and that she knew that it was under suspension at that time. Therefore, there would be no merit to an appeal on the basis of s. 50.2(3)(b) or s. 50.2(3)(c) of the HTA. The only ground of appeal remaining is that the vehicle was stolen at the time it was detained in order to be impounded under s. 50.2(3)(a) of the HTA.

17In the present case, the appellant says that she and Mr. Da Silva resided together and were hosting a gathering of friends on the evening before the impoundment. Once their friends had departed, Mr. Da Silva took the appellant’s car keys and told her he was going out. The appellant believed that Mr. Da Silva intended to go and purchase drugs or to continue to “party” elsewhere. The appellant says that she did not know when Mr. Da Silva would return and that she thought it might be several days before he returned with her vehicle.

18The appellant says that when Mr. Da Silva took her keys, she told him he was not allowed to drive her vehicle and she tried to wrestle the keys away from him. The appellant says that Mr. Da Silva had been physically abusive toward her in the past and that she was afraid of him. The appellant was unable to wrest her keys from Mr. Da Silva and he got into the vehicle intending to drive away. The appellant got into the passenger seat and continued to ask Mr. Da Silva to return the car. Approximately two minutes into their drive, they were stopped by the police and the vehicle was impounded.

19The appellant testified that Mr. Da Silva told her that he was going to tell the police that he was just driving to the store to buy the appellant tampons and that she was unable to drive herself because she was intoxicated. Mr. Da Silva told the appellant that she should support that story when the police questioned her. She admits that she lied to the police and confirmed Mr. Da Silva’s story. The appellant admits that she has never advised the police that the vehicle had been stolen and never made that allegation to anyone until she found out that the impoundment was for 90 days and Mr. Da Silva refused to contribute to the cost of the impoundment.

20The appellant explains her failure to tell the police the truth, and her reluctance to appeal the impoundment, by alleging that Mr. Da Silva was physically abusive toward her, has a violent criminal past, and that she was afraid that, if she told the police he had stolen the vehicle, or if she accused him of stealing the vehicle in this appeal, she would be in danger. She therefore decided that it would be best to simply pay the 45-day impound fee herself. By the time she found out the impoundment was for 90 days, she no longer lived with Mr. Da Silva and, while she was able to afford to pay the 45-day impoundment fee, she could not afford to pay the cost of a 90-day impoundment.

21The Registrar alleges that the fact that the appellant got into the vehicle rather than calling the police, the fact that she was a passenger in the vehicle when it was stopped by police, the fact that she lied to the police, and that she did not allege the vehicle was stolen until long after the impoundment, lead to the conclusion that the vehicle was not stolen. The Registrar alleges that the reason that the appellant is now appealing is that she realizes that impoundment is for 90 days and not 45 as she initially thought and that this will be more expensive for her. The Registrar argues that, even if the Tribunal accepts that the appellant’s version of events is accurate, the vehicle was not “stolen” within the meaning of s. 50.2(3)(a) of the HTA.

22I find the appellant to have been a credible witness at the hearing of this motion. She gave her evidence in a forthright manner and the Registrar did not point to any inconsistencies which were significant or unexplained. I am mindful that I do not need to make findings of fact in order to determine this motion and that the appellant only needs to show that her version of events, if believed, could reasonable result in a favourable outcome for her in order to establish that the appeal has merit.

23In Marshall v. Ontario (Registrar of Motor Vehicles), [2002] O.J. No. 745 (Div. Ct.) (“Marshall”) the Divisional Court states as follows:

In our opinion, a vehicle is “stolen” in this context when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.”

24This definition creates a two-part test which the appellant must prove in order to establish that the vehicle was stolen:

1. Was the vehicle taken without the owner’s consent; and

2. Did the perpetrator intend to deprive the owner of it either permanently or temporarily.

25In Marshall, the Divisional Court found that a vehicle had been “stolen” for the purposes of s. 50.2(3)(a) of the HTA where the driver took the keys from the purse of a person to whom the owner had entrusted the vehicle, and where the driver intended to return the vehicle after he had run some errands and before anyone knew he had taken the vehicle. The Divisional Court stated that the Tribunal’s finding that the vehicle was not stolen on those circumstances was patently unreasonable.

26The facts described by the appellant in this case present a more compelling case that the vehicle was stolen than the facts in the Marshall decision, and I find that there is merit to the appeal.

27The appellant’s evidence on the motion is that she attempted, both verbally and physically, to stop Mr. Da Silva from taking her car but was unsuccessful in doing so. The fact that the appellant continued to try and have Mr. Da Silva return the vehicle by getting into the passenger seat does not amount to consent for Mr. Da Silva to drive in the circumstances. Although some of the evidence, such as the failure of the appellant to tell the police that Mr. Da Silva had stolen the vehicle, and her failure to appeal the impoundment immediately, is evidence that the vehicle was not stolen, on the entirety of all the evidence I find that the appellant’s evidence, if accepted, would likely lead to a finding that the vehicle was taken without her consent and that Mr. Da Silva likely intended to deprive the appellant of the vehicle either temporarily or permanently.

28The test for determining the merits of the appeal, in a motion to extend the time for filing, is low and I find that the appellant has satisfied that part of the test.

Conclusion

29I find that the appellant has not demonstrated that she had a bona fide intention to appeal within the appeal period but that the appellant presented a reasonable excuse for deciding not to appeal within the 15-day period. I find that her delay in filing the appeal is significant and is prejudicial to the Registrar but that the appellant presented a reasonable excuse for most of the delay. I find that there is merit to the appeal.

30I find that the justice of the case requires granting the extension. It would be unjust to deny the appellant an extension in the circumstances. If the appellant’s version of events is accepted then the vehicle was taken from her by force, she had a reasonable fear that she was in physical danger if she reported the theft to the police, and she further decided to pay for the impound herself rather than risk retribution from Mr. Da Silva by reporting that he had stolen the vehicle.

ORDER

31For the reasons set out above, the appellant’s motion to extend the time for filing his appeal is allowed.