Licence Appeal Tribunal
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
Parties
Between:
Donna Solomon Appellant
-and-
Registrar of Motor Vehicles Respondent
Reasons for Decision on Motion for an Extension of Time
Order Made By: Jennifer Friedland, Member
Appearances:
For Appellant: Donna Solomon, Self-represented
For Respondent: Sanjay Kapur, Representative
Date of Motion: July 28, 2021, By Teleconference
Overview
1The appellant brought a motion for an extension of time to appeal the impoundment of her motor vehicle. The vehicle was impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“Act”) having been driven by a person whose licence was suspended for Criminal Code-related reasons.
2Pursuant to section 9 of Ontario Regulation 631/98, this type of appeal must be commenced within 15 days of the impoundment. The appellant’s appeal was filed two days late.
3Following the hearing of the motion, I granted the 2-day extension of time to file the appeal and the motion was transformed into a case conference so that an early date for the appeal could be secured.
4I found that the justice of the case clearly favoured the appellant’s request, while the Registrar’s submissions in resisting it were unprincipled and lacking in merit.
5I informed the parties that my reasons for granting the extension of time would follow in writing. These are my reasons.
Law
6My authority for granting 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.”
7In 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. In coming to that determination, the following four factors should be considered:
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.
8The above factors are not strict elements that must each be met in order to grant an extension of time. Rather, they are a guide to assist in determining the justice of the case. Whether to grant an extension of time depends on the specific facts of each case.
Facts & Analysis
9The appellant’s vehicle was impounded on June 29, 2021. It was being driven by her son-in-law, whose licence had been suspended in Ontario.
10The Ontario Provincial Police officer who pulled the driver over was called as a witness by the Registrar to prove that he had handed the driver a copy of the “Notice to Registrar” (“NTR”). This is a two-page document, the first page of which provides information about the impoundment. The second page, among other details, warns the driver to stop driving and provides information for how to appeal the impoundment.
11The appellant testified that her son-in-law gave her the NTR but that she did not notice any writing on the back of it.
12A copy of the second page of the NTR was provided by the officer to the Registrar and put into evidence. The printing on that copy was incredibly faint and virtually illegible.
13The officer acknowledged that the printing on the second page of the NTR always comes out lighter when it is printed from the thermal printer in his police vehicle. Nonetheless, he is sure that the copy he gave to the driver was legible because he “always checks.”
14Mr. Kapur suggested to his witness (improperly since he was conducting an examination-in-chief and should not have suggested an answer to the witness) that it was possibly the officer’s scanner that created the lighter copy submitted at this hearing. The officer agreed that there might be something wrong with the scanner at his office. He maintained that the copy he provided the driver would have been legible because he would have checked it.
15At the same time, the officer admitted that he never actually read the second page of the NTR. He knew only what it said on the very top which was a large-font bold warning to the driver to “Stop Driving.” He did not know that the page also contained information about how to appeal an impoundment and the process for doing so.
16The officer admitted that he only learned that there was such an appeal process during discussions with Mr. Kapur in preparation for this motion.
17The officer’s lack of knowledge about the information contained on the NTR did not assist the appellant who spoke to him twice about how she could get her car out. On both occasions the officer was unable to provide her with the correct information about the appeal process.
18The appellant testified that she first contacted the officer by telephone (his name and badge number were on the first page of the NTR, which was legible). The officer could not provide any information about what she could do about the impoundment. He told her he would be coming to her house to drop off the vehicle owner registration and insurance documents to her.
19She next called the impoundment facility. The person she spoke to suggested she “try the JP’s office” (Justice of the Peace).
20On July 8, 2021 – about a week after the impoundment – the officer came to the appellant’s house in person to return her insurance and registration documents. She asked again if he knew how she could get her car out. The officer told her it was out of his hands. The appellant conveyed to the officer what the person at the impound facility had said about seeking help from the JP’s office. The officer agreed that it might be a good idea to try the JP.
21The officer did not dispute having this conversation with the appellant.
22As noted above, the officer candidly admitted he did not know about the appeal process at the Licence Appeal Tribunal, notwithstanding that the information about that process was on the back of every NTR he printed and purported to double check. He acknowledged he would have told the appellant about the process had he known about it.
23The appellant testified that when she called the JP’s office, as suggested by the impoundment person and the officer, she could not reach anyone with information about what she could do about her impounded vehicle.
24Ultimately, having called the impound facility, the JP’s office, and twice spoken to the police, the appellant testified to being at a loss as to how she might get her car out of the impoundment.
25Finally, on July 15, 2021, the appellant received in the mail a Notice of Impoundment and Release (NOIR) from the Ministry of Transportation. This is a notice sent by the Registrar to the owner of the impounded vehicle. It provides information about the impoundment, including where the car is impounded and for how long, plus information about retrieving the vehicle on the release date. On the second page of the NOIR, in bold legible print, there is a heading that says “Appealing an impoundment” followed by information about the grounds to appeal as set out in s. 50.2 of the Act. This is followed by another heading, again in bold, that says “Filing an appeal” under which there is information for how to do so, including the timelines.
26The NOIR was delivered to the appellant the day after the 15-day period to appeal an impoundment had expired. She filed her appeal the very next day. She also filed a notice of motion to extend the time for filing. In both, she refers to her unsuccessful efforts to obtain the correct information about how to appeal within the required timeframe.
27The Registrar did not consent to the 2-day extension of time, thus requiring this motion.
Registrar’s position: It is irrelevant whether the Appellant was informed of her right to Appeal
28Mr. Kapur’s first submission on behalf of the Registrar is that whether the appellant was informed of her right to appeal within the applicable period is irrelevant.
29Mr. Kapur points out that the list of factors to be considered in determining whether an extension of time to appeal should be granted does not include whether that person was informed of their right to appeal.
30The Registrar submits that this is because there is no obligation on the part of the government or its agents to inform a person that they have a right of appeal.
31Thus, in the Registrar’s submission, even if the writing on the NTR was too faint to read, and even if the officer and anyone else she asked failed to provide her with the correct information, this should not factor into my analysis because, in the Registrar’s view, it is a courtesy to inform an appellant of her right to appeal, it is not an obligation.
32In support of the Registrar’s position, Mr. Kapur referred me to certain provisions of s. 55.1 of the Act and specifically, s. 55.1 (5) which sets out an officer’s duty to:
a) prepare a notice identifying the motor vehicle that is to be impounded, the name and address of the driver, the date and time of the impoundment, the period of time for which the motor vehicle is impounded and the place where the vehicle may be recovered;
b) serve the driver with a copy of the notice; and
c) forward a copy of the notice to the Registrar.
33Mr. Kapur also referred me to s. 55.1 (7) which states that:
The Registrar may provide notice of the impoundment to the owner and operator of the motor vehicle by mailing it to them at the latest address for them appearing on the records of the Ministry.
34Mr. Kapur’s position on behalf of the Registrar is that these two provisions encompass all that is required in terms of providing notice to anyone following an impoundment. Mr. Kapur notes that these provisions do not oblige the officer or the Registrar to inform an owner of his or her right to appeal.
35In Mr. Kapur’s submission, therefore, the fact that the appellant was not informed by anyone – “by the MTO, the yard owner, the JP, the OPP or god knows who” – is irrelevant.
36Mr. Kapur did not have an explanation for why – if notice were an irrelevant factor – he wasted the Tribunal and the appellant’s time calling a witness to establish that notice was in fact provided.
37In my view, the Registrar’s position is untenable. Even if there is no statutory obligation to inform a person of their right to appeal an impoundment, the fact is that it is the practice of both the police and the Registrar to do so. That is why both the NTR and the NOIR provide information about a person’s right to appeal and the process for filing such an appeal. Most people would be familiar with similar notices – for example, on the back of parking tickets, speeding tickets, and other notices of offences or infractions. If there is a right to appeal, there tends to be corresponding information about how to do so. This is because notice to a citizen of their appeal rights is an important component of access to justice. Certainly, it is a relevant factor in assessing whether the justice of the case requires an extension of time to be granted.
38In this case, I find that the appellant did not receive adequate notice of her right to appeal the impoundment or information for how to do so.
39I do not accept the Registrar’s submission that the lightness on the version of the NTR submitted at the hearing was due solely to the officer’s scanner. The officer’s evidence about a problem with his scanner was given in answer to a leading question and I afford it little weight. Further, he acknowledged that the second page always comes out lighter than the first page when printed from his vehicle. Moreover, the copy before me in evidence was so faint that it was hardly legible. I accept the appellant’s evidence that she did not notice that there was relevant information printed on the second page of this particular NTR.
Registrar’s position – any reasonable person would know there was a right to Appeal
40The Registrar also argued that even if I accept that the appellant did not see the appeal information on the back of the NTR, it was unreasonable for her not to have figured out that such information would be there. Mr. Kapur submitted that “any reasonable person would be aware that there is information on both sides” of the NTR and she should have made further inquiries.
41It strikes me that if the officer tasked with providing the driver/owner with the information about the appeal process, and who prints that page regularly in the course of his duties, does not know that the second page provides information about how to appeal the impoundment and the process for filing such an appeal, surely the owner of the car can be forgiven for not figuring it out for herself.
42Again, I accept the appellant’s evidence that she did not notice there was writing on the back of the NTR. I further accept that it did not occur to her to make inquiries about the content of a page she did not notice. What is clear, on the other hand, is that as soon as she did learn of the correct information for how to appeal, she forthwith filed her appeal.
Registrar’s position –no bona fide intention to appeal during the appeal period because the appellant only learned of the right to appeal after the impound period
43Mr. Kapur submits on behalf of the Registrar that even if I accept the appellant’s evidence, I cannot conclude that the appellant had a bona fide intention to appeal during the appeal period because she only learned that she had a right to appeal the day after the appeal period ended. Mr. Kapur submits that the appellant could not have formed an intention to appeal before she received the information for how to do so.
44I asked Mr. Kapur why I could not consider the various steps taken by the appellant to find out what the process was for retrieving her car as reflective of her intention to appeal. Mr. Kapur submitted that it could be “reasonably argued that a great majority of people would want to get their car back one way or another” but this “generalized desire” to get the car back cannot pull the intention to appeal back into the relevant period.
45The Registrar maintained that since the appellant only learned of her right to appeal the day after the appeal period ended, she cannot have formed the intention to appeal prior to that period.
46I find the Registrar’s submission to be without merit.
47The evidence clearly shows that the appellant had an intention to appeal the impoundment regardless of whether those precise words were used. As stated right in the appellant’s Notice of Appeal, she kept asking whether “there was anything I could do to get my vehicle back.” There is only one way to potentially get her vehicle back during the impoundment and that is an appeal. Had she learned of that process during the appeal period, she clearly would have appealed.
48I have no hesitation in concluding that the appellant had a bona fide intention to appeal during the appeal period.
Other Factors
49The Registrar made only minimal submissions with respect to the other factors relevant to whether the justice of the case warrants an extension of time.
50With respect to the extent of the delay, Mr. Kapur refused to take a position on whether a 2-day delay was lengthy or minimal. He stated only that “it is what it is.”
51I find that the delay in this case was insignificant and weighs in favour of the appellant’s request for an extension of time.
52Regarding prejudice to the other parties, typically it is the Registrar’s prejudice if an appeal of a motor vehicle is delayed. This is because if an appellant is successful, the Registrar is obliged to cover the costs of the impoundment up to the date the vehicle is released. Therefore, the earlier the appeal, the lower the potential cost to the registrar. That said, the Registrar could have avoided the potential for such prejudice by consenting to the very brief extension of time in the circumstances of this case.
53I find that the prejudice to the Registrar in this case was negligible. Moreover, any such prejudice was tempered by my converting the motion to a case conference upon granting the extension of time so that an early date could be secured for the hearing.
54Regarding the merits of the appeal, the appellant appealed on the grounds of due diligence and exceptional hardship. It is unnecessary for the appellant to prove that she would be successful on either front, it is sufficient if there is some prospect of success. In my view, the appellant certainly had a prospect of success on both grounds. Regarding due diligence, she assured herself that her son-in-law did have a valid Arizona licence. Regarding exceptional hardship, she noted that she and her husband, who are 67 and 71, respectively, rely on their vehicle for doctor’s appointments and do not live in a place where there is public transportation. The appellant clearly had a prospect of success on the grounds set out in her Notice of Appeal and the Registrar did not argue otherwise.
Conclusion
55Following the hearing of the appellant’s motion to extend the time to file her appeal, I was satisfied that the justice of the case required the extension to be granted.
56The appellant clearly made ongoing efforts to figure out the correct avenue to try to retrieve her car from the impoundment. At every turn she received inadequate or wrong information, including from the officer who provided the NTR that outlined the owner’s appeal rights on it and who claims to have always looked at that paper close enough to be sure it was legible. Whether the page with the information about how to appeal was in fact legible is not something I must decide, though I do note that the copy in evidence was too faint to read clearly and the officer acknowledged that the second page printed faintly from his police car. Regardless, I accept the appellant’s evidence that she did not see any such appeal information on the back of the NTR. Meanwhile she tried every other avenue she could think of to learn how she might get her car out of the impoundment. Could she have done more? Maybe. Would another person have taken other steps? Maybe. We are not dealing with other people. We are dealing with this appellant who only and finally received accurate information about her right to appeal the impoundment and how to do so the day after the period to file an appeal expired. The moment she received that information, she promptly filed her appeal.
57The submissions of the Registrar in resisting the appellant’s request for a 2-day extension of time deserve comment. The Registrar is not required to consent to an extension of time. But its submissions in resisting the extension should be principled. I find they were not principled in this case.
58Regardless of whether there is a legal obligation to provide notice to a person of their right to appeal an impoundment, the practice of the Registrar is to provide such notice. This is because notice of one’s appeal rights is an important component of access to justice. For the Registrar’s representative to make submissions that such notice is irrelevant strikes me as unprincipled, unfair to the appellant, and blind to the principle of justice that is to prevail in determining whether an extension of time should be granted.
59Moreover, while submitting that it is irrelevant whether a person received notice of their appeal rights, the Registrar nonetheless called evidence to prove (or attempt to prove, in this case) that such notice was given. Mr. Kapur’s decision to call this evidence betrays his knowledge that notice is relevant to whether the justice of the case requires an extension of time be granted. The Registrar’s submission to the contrary was frivolous and lacking in merit.
60Finally, the Registrar endeavoured to impose a restrictive and, in my view, unreasonable interpretation of what it might mean for a person to intend to appeal the impoundment. The evidence here showed that the appellant did everything she could think of to retrieve her car during the appeal period. The fact that she asked, “how can I get my car out” and not “how can I appeal the impoundment” is a distinction without a difference. Obviously, a layperson who has not been informed or has been misinformed that there is a right to appeal, will not use the word appeal as she searches for how she might retrieve her car. The Registrar’s position at this hearing was too literal and again, unprincipled, in my view.
61Ultimately, I found the whole of the Registrar’s submissions to be without merit.
62Meanwhile, I found that the justice of this particular case clearly favoured the relief sought on the appellant’s motion.
63For the above reasons, following the hearing of the motion, I granted the appellant’s request for a 2-day extension of time to file her appeal.
LICENCE APPEAL TRIBUNAL
Jennifer Friedland, Member
Released: September 15, 2021.