Maelis Falola v. Registrar of Motor Vehicles, 2022 CanLII 109478

Date: 2022-11-15

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 section 55.1 of the Act.

Between:

Maelis Falola Appelant

-and-

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Stephen Scharbach, Member

Appearances:

For the Appellant: Maelis Falola, Self-Represented

For the Respondent: Leila Pereira, Agent

Heard by Teleconference: November 01, 2022

OVERVIEW

1Ms Maelis Falola (“appellant”) appeals the impoundment of her 2019 Ford Fusion (“vehicle”). It was impounded on September 20, 2022, when police discovered it being driven by a driver (not the appellant) whose licence was under suspension for a previous drinking and driving offence.

2The appellant’s sole ground of appeal is that she exercised due diligence in attempting to determine that the driver’s licence of the person driving her car when it was impounded was not then under suspension.

3The appellant filed her notice of appeal after the 15-day appeal deadline had passed. The Tribunal may extend that deadline in the appropriate circumstances and the appellant, in this preliminary motion, requested that the Tribunal do so in this case.

4This case raises two main issues:

• Should the appeal deadline be extended to allow the appeal to be filed and heard by the Tribunal?
• Assuming the appeal deadline is extended, did the appellant exercise due diligence in attempting to determine that the driver’s licence was not under suspension?

5For the reasons set out below, on the first issue I determine that the appeal deadline should be extended, and the appeal should be heard on its merits.

6On the second issue I conclude that the appellant did not exercise due diligence in attempting to determine that the driver had a valid driver’s licence.

7I have therefore confirmed the impoundment.

ANALYSIS

(a) Motion to Extend Deadline to Appeal

8Under the Highway Traffic Act (the “Act”), an owner may appeal an impoundment to this Tribunal and, after holding a hearing, the Tribunal may either confirm the impoundment or order the Registrar to release the vehicle.¹

9There is a 15-day time limit for filing an appeal. A regulation made under the Act provides that an appeal of an impoundment “… shall be commenced by filing with the Tribunal a notice of appeal…within 15 days of the day the vehicle was detained…”²

10The Tribunal may extend that time limit. Section 7 of the Licence Appeal Tribunal Act, 1999³ states that the Tribunal may extend a time limit “…if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief…”

11In Manuel v. Registrar, Motor Vehicle Dealers Act, 2002⁴ the Divisional Court described the analysis that the Tribunal should apply in determining whether there are reasonable grounds to support an extension.

12In summary, the Court stated:

• The general rule is that an appeal deadline shall not be extended unless the requesting party can establish that the “justice of the case” requires an extension. The onus is on the requesting party to establish the facts necessary to support an extension.
• The following factors should be considered and weighed in determining whether the justice of the case requires an extension – a bona fide intention to appeal within the appeal period, length of the delay, prejudice to the other party, and the merits of the appeal.

13Taking those factors into account, I conclude that the justice of the case requires an extension of the appeal deadline.

(i) Intention to Appeal and Length of Delay

14The vehicle was impounded on September 20, 2022, the appeal deadline was October 5, 2022, and the appellant filed her appeal on October 19, 2022.

15According to the appellant, Halton Regional Police informed her of the impoundment in an email on September 20, 2022, but that email did not include information about her right to appeal the impoundment. The appellant had booked a trip to Europe scheduled to leave on September 24, 2022. In the intervening three days the appellant attempted to clarify the situation and find out how she could get her vehicle back. According to the appellant’s testimony which I accept, she contacted both the Halton Regional Police and a lawyer. Neither told her of her right to commence an appeal before this Tribunal.

16The appellant returned from her trip on October 16, 2022. A letter from the Registrar was waiting for her which confirmed the impoundment, informed her of her right to appeal, and provided instructions for doing so. According to the appellant, she first learned about her right to appeal when she received that letter, and promptly filed her appeal three days later, on October 19, 2022.

17I accept the appellant’s evidence that she genuinely did not know of her right to appeal the impoundment until she received the Registrar’s letter on October 16, 2022. Once she found out, she formed an intention to appeal, and she filed her appeal without undue delay.

(ii) Prejudice to the Registrar

18It appears that the only prejudice the Registrar would experience as result of the extension would be a potential increase in the cost of the impoundment if the appeal is successful.

19Assuming the appeal was filed on time and the appellant was successful, the Registrar would be responsible for the costs of the impoundment until the date that the Tribunal ordered the vehicle’s release.

20If the appeal period is extended, the hearing will take place later than it would if the appeal was filed on time. If the appellant is successful, the impoundment costs payable by the Registrar may be more than they would if the appeal been filed on time.

21I acknowledge that extension of the time period does create some additional potential financial cost to the Registrar. However, I consider its prejudicial impact to be minor.

(iii) Merits of the Appeal

22The appellant intends to rely on one of the grounds permitted under the Act - that she exercised due diligence in attempting to determine that the driver’s licence was not under suspension at the time of impoundment.

23Due diligence in this context means taking all steps that a reasonable person in similar circumstances would take to determine that the driver to whom she lent her vehicle had a driver’s licence that was not under suspension.

24In this case, the person who was driving the vehicle when it was impounded was Mr. Festus Egwuenu. According to the Registrar’s records, Mr. Egwuenu‘s driver’s licence has been suspended since 2017 due to a drinking and driving offence and his failure to complete a remedial program since then.

25The appellant stated that she intends to argue that although she knew Mr. Egwuenu driver’s licence had been suspended earlier, he assured her that his licence had been reinstated and sent her an email with the details of his supposedly reinstated valid licence, including the licence number and class. According to the appellant, she intends to argue that she took all reasonable steps to confirm that Mr. Egwuenu had a valid licence but, in the end, she was deceived by him.

26It is not the Tribunal’s function at this point to determine the strength of the appellant’s appeal. At this point the appellant must show only that her appeal has some merit, and in this case, I conclude that the appellant has met that relatively low test.

27In summary, on a review of the relevant factors, I find that:

• The appellant did not appeal the impoundment within the 15-day time period because she was unaware of her right to appeal the impoundment, or the 15-day deadline.
• the appellant commenced her appeal promptly after she learned she had a right of appeal,
• the appellant has at least an arguable ground for appealing the impoundment,
• extending the appeal prejudices the Registrar monetarily, but that potential increased cost is minor. I find that, overall, the justice of the case supports extending the appeal deadline.

28As a result, I extend the deadline to appeal and my decision on the merits of the appeal are set out below.

(b) Did the Appellant Exercise Due Diligence?

29Due diligence means taking all steps that that a prudent person would reasonably be expected to take to determine that Mr. Egwuenu’s licence was not under suspension. In this case, I conclude that the appellant has not demonstrated that she exercised due diligence to determine the true status of Mr. Egwuenu’s driver’s licence.

30According to the appellant, she believed Mr. Egwuenu to be telling the truth when he assured her that his licence had been reinstated and sent her an email with some details of his supposedly reinstated licence. The appellant did not place that email into evidence. The appellant and Mr. Egwuenu were personal friends, and I understand that made her more willing to trust him.

31However, Mr Egwuenu had a history of being untruthful to the appellant about his licence status. According to the evidence, this was the second time the appellant’s vehicle was impounded as a result of Mr. Egwuenu driving her vehicle. The car was impounded for the first time in May 2021.

32According to the appellant, as a result of the first impoundment she became aware that Mr. Egwuenu’s licence was suspended. He told her the suspension was due to unpaid fines. He later told her those fines had been paid and his licence has been re-instated. She believed him although the Registrar’s records indicate that his claim was false.

33Given the appellant’s experience with Mr Egwuenu’s false claim about his licence status and the first impoundment, in my view a reasonable person in those circumstances would have required (at a minimum) some documentary verification that Mr. Egwuenu was telling the truth this time and now had a valid licence. For example, the appellant could have required that he show her a valid physical driver’ licence card, provide her with a photocopy, or at least send to her a photo of the card. The appellant did none of those things.

34In my view the appellant did not exercise due diligence in attempting to determine that Mr. Egwuenu’s licence was not suspended, and I have confirmed the impoundment.

ORDER

35Pursuant to s.50.2(5) of the Highway Traffic Act, I confirm the impoundment of the appellant’s vehicle.

Footnotes

1. 1Highway Traffic Act, s. 50.2
2. 2Ontario Regulation 631/98, s. 9 (the “Regulation”)
3. 3Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G
4. 42012 ONSC 1492