Tribunal File Number: 14368/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:
Yacine Benabdesselam
Appellant (Moving Party)
and
Registrar of Motor Vehicles
Respondent (Respondent on Motion)
DECISION AND ORDER ON MOTION
ADJUDICATOR: D. Gregory Flude, Vice-Chair
APPEARANCES:
For the Appellant: Yacine Benabdesselam, Self-represented
For the Respondent: Leila Pereira, Agent
Heard By Teleconference November 3, 2022
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 September 1, 2022, because it was being operated by a driver whose driver’s licence was subject to an ignition interlock device condition. 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 subject to an ignition interlock device condition and the vehicle is not so equipped.
3The Tribunal received the appellant’s Notice of Appeal (“NOA”) on October 21, 2022. The deadline for filing the appeal was September 16, 2022. As such, the NOA was filed approximately 35 days after the deadline, and 5 days after the vehicle release date.
4The appellant is requesting that the 15-day timeline for appealing the impoundment be extended, and the respondent is opposing the request.
5The motion to extend the timeline for appealing the impoundment is denied.
B. THE ISSUE TO BE DECIDED:
6The 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:
7Pursuant 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.
8The 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 . . . 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.
9In 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.
10The appellant has the onus to establish that the justice of the case requires the granting of the extension, but he 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?
11The appellant concedes that he did not have a bona fide intention to appeal within the appeal period because he was incarcerated immediately after the impoundment for issues unrelated to his operation of a motor vehicle without a condition interlock device.
The length of the delay
12The length of the delay is approximately 35 days. When this number is compared to the 15 day time period for filing an appeal, it is clear that the delay is lengthy.
Prejudice to the Registrar
13The third factor is prejudice to the opposing party. The respondent submitted that it would be prejudiced if the appeal proceeded; specifically, if the appellant was successful on the merits of his appeal, the respondent would be responsible for the fees of towing and storage for the entire impound period. In these circumstances, I agree that the Registrar would encounter prejudice by the late filing of the NOA.
Merits of the appeal
14The final factor is a consideration of the merits of the appeal. This does not require me to make a ruling on the merits, but only to assess whether the appellant has a reasonable chance of success.
15From the facts that came out during the hearing, it appears the appellant has two grounds of appeal open to him. The first ground is that his licence was not subject to an ignition interlock device condition at the time of the impoundment. The second alternative argument is that he exercised due diligence to determine that the ignition interlock condition no longer applied. Even on a superficial analysis, both grounds are meritless.
16The appellant has never held an Ontario licence. He is a resident of Quebec and works in the construction industry. He follows the work, so sometimes he may work in Ontario and at other times he may work in Alberta, Quebec, or any other province where construction work is available. In 2012, while he was in Ontario, he was convicted of impaired driving and his licence was suspended for one year. Under Ontario law, there was a mandatory requirement that the appellant be subject to an ignition interlock device condition for a minimum of two years. At the end of the two-year period, the appellant was required to complete a one-day “rehabilitation course” and then send proof of completion together with an application to remove the condition, before the condition would be removed from his licence.
17While working in Alberta in 2018, the appellant completed to requisite course. He is not sure, but he believes, that he sent a conformation of completion of the course to Ontario. He took no other steps to remove the condition until after the impoundment of the vehicle, but he advised me that the condition has now been removed.
18The pith and substance of the appellant’s submission was that, on return from Alberta he went to the Quebec licensing authority, the Société de l'assurance automobile du Québec (“SAAQ”) to renew his licence. SAAQ issued him an unrestricted licence without a requirement for an interlock device. This is the core of his due diligence defence.
19I note that the ignition interlock device condition is an Ontario requirement, unrelated to the Criminal Code. It impacts the appellant’s driving privileges in Ontario, regardless of the province issuing his licence. I also note that the appellant was advised by a Driver Control Analyst that Ontario had sent information on how to remove the interlock device condition in and around 2015. The appellant asserts that the notice was sent to his old address, and he did not receive it. He lays the blame for this at the feet of Ontario, but he made no efforts to update his address in the Ontario records. Updating his address was his responsibility, not Ontario’s. I find the appellant took no steps to ensure he received timely notification from Ontario. Even at a superficial level, his assertion of a due diligence defence has little merit.
20Because of reciprocity between provinces in licensing matters, the appellant is of the view that Ontario is bound by the unrestricted Quebec licence. Since the impoundment, the appellant says he has researched the law and believes that reciprocity binds Ontario. He did not refer me to any statutes or regulations in support of this proposition. Licensing of drivers is a provincial responsibility, and I am unaware of any authority for the proposition that one province may supersede driving conditions imposed by another province simply by issuing a licence. Reciprocity means that each province will recognize licences issue by other provinces, but the driver is still subject to the rules and regulations of the province in which he is driving. In this case, the appellant was subject to Ontario’s requirement that he operate only vehicles equipped with an ignition interlock device.
21I find that the appellant’s assertion that he was not subject to an ignition interlock device condition for driving in Ontario to have little merit.
ORDER ON MOTION
22Weighing the four factors and synthesizing them to arrive at the justice of the case, I find very little in support of extending the time to appeal and great deal in favour of denying the motion. The appellant did not form an intention to appeal within the appeal period, although his incarceration may provide some explanation of why not. The delay is lengthy when view in comparison to the appeal period of 15 days. There is financial prejudice to the Registrar. Finally, the potential grounds of appeal are largely meritless.
23The motion is denied.
24I thank the appellant for his honesty and integrity throughout the motion hearing and for consenting to proceed in English rather than in my very broken French.
LICENCE APPEAL TRIBUNAL
_________________________
D. Gregory Flude, Vice-Chair
RELEASED: November 03, 2022