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:
Tammy Rody
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Stephen Scharbach, Member
APPEARANCES:
For the Appellant: Tammy Rody, Self-Represented
For the Respondent: Leila Pereira, Agent
Heard by Teleconference: November 16, 2022
OVERVIEW
1Ms Tammy Rody (“appellant”) appeals the impoundment of her 2018 GMC Sierra (“vehicle”). It was impounded on October 12, 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 the impoundment will result in exceptional hardship.
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 a 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, will the impoundment result in exceptional hardship as that term is used in the Act and Regulations?
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 impoundment will not result in exceptional hardship, and I have therefore confirmed the impoundment.
ANALYSIS
(a) Motion to Extend Deadline to Appeal
7Under 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
8There 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
9The 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…”
10In 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.
11In 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.
12Taking 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
13The vehicle was impounded on October 12, 2022, the appeal deadline was October 27, 2022, and the appellant filed her appeal on November 4, 2022, eight days after the deadline
14According to the appellant, whose evidence on this point I accept, the police telephoned her on October 12, 2022, and told her that her that her vehicle had been impounded. However, they didn’t tell her she had a right to appeal the impoundment to this Tribunal. The police are required by s. 55.1(5)(b) of the Act to provide the driver at the roadside with a written notice of impoundment that contains information about the right to appeal. That notice was presumably given to the driver of the vehicle who, in this case, was not the appellant.
15Although s. 55.1(6) of the Act deems service of the impoundment notice on the driver to be service on the vehicle’s owner, I find the appellant has rebutted that presumption in this case. According to the appellant’s testimony which I accept, the driver of the car was the father of her daughter - with whom the appellant has not lived for several years - and he did not give her the notice or tell her what it contained.
16According to the appellant, after the impoundment she spoke with both the police and the operator of the impound yard. They both told her (incorrectly) that there was no possibility of the vehicle being released before expiry of the 45-day impound period.
17The appellant found out about her right to appeal when she received the Registrar’s notice of impoundment which is routinely sent by the MTO to the owner after the impoundment. That notice also contains details about the owner’s right to appeal and the deadline for doing so. According to the appellant, she received that notice on November 4, 2022, and filed her notice of appeal that same day.
18According to the Registrar, the delay in receiving that notice was at least partly the fault of the appellant. The notices are typically generated the same day as the impoundment and are sent to Canada Post for delivery 2-3 days afterwards. Canada Post typically takes 7 days to deliver them. In this case receipt was delayed because the notice was sent to the appellant’s previous address that had not been updated by the appellant as required by s. 3.1 of Regulation 628.
19I do not accept the Registrar’s submission particularly since s. 3.1 of the Regulation does not require the appellant to notify the Ministry of her change of address before she moved and gives the appellant six days after her change of address to notify the Ministry. According to the appellant, she moved from her old address on October 28, 2022. She was not required to notify the Ministry until, at latest, November 4. The notice arrived at her old address between October 28 and November 4. She received it when someone brought her mail from her old address.
20I 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 November 4, 2022. I find that any delay caused by the appellant’s move was minimal and was not unusual. In any event, once she found out she had a right to appeal, she filed her notice of appeal immediately.
(ii) Prejudice to the Registrar
21In this case, the Registrar provided no evidence or submissions as to any prejudice that the Registrar may suffer because of extending the appeal deadline.
(iii) Merits of the Appeal
22The appellant intends to rely on one of the grounds for appeal permitted under the Act - that the impoundment will cause exceptional hardship. According to the appellant, she lives in a household of three adults (her brother, daughter, and herself) and her granddaughter. She owns one vehicle in addition to the impounded vehicle. However, her brother works in Cambridge and does not have a car so she must drive him in that second vehicle to and from work. She lives in Kitchener and the drive twice per working day is onerous. In addition, the appellant’s daughter needs transportation to get to her work at construction sites in the Kitchener area and the appellant must also use her remaining vehicle for that purpose.
23The appellant states that she is currently receiving only EI benefits, and with her limited financial means the cost of the impoundment will cause financial hardship. According to the appellant, managing the transportation needs of her household with the one remaining vehicle is difficult, leads to tension within the household, and is causing her significant emotional stress.
24It 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.
25In 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 appeal was filed within 8 days of the appeal deadline,
the appellant has at least an arguable ground for appealing the impoundment.
26I conclude that overall, the justice of the case supports extending the appeal deadline.
27As a result, I extend the deadline to appeal and my decision on the merits of the appeal are set out below.
(iv) Merits of the Appeal – Exceptional Hardship
28For the appellant to succeed, she must prove her ground for appeal on a balance of probabilities; that is to say, “more likely than not.”
29A regulation made under the Act5 sets out the matters that the Tribunal must consider in determining whether an impoundment will result in exceptional hardship.
30In summary, the Regulation requires that in determining whether an impoundment will result in exceptional hardship:
a. the Tribunal must first consider whether an alternative to the impounded vehicle is available. To show that no alternative is available, the owner must demonstrate that every other reasonable option has been considered, including using another vehicle or making arrangements to do without the vehicle during the impound period.
b. If no alternative is available, the Tribunal is required to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle.
c. The Tribunal shall not consider inconvenience to any person and may only consider financial loss if the owner demonstrates that:
i. No alternative to the impounded vehicle is available;
ii. The loss will be immediate, significant and lasting;
iii. The impact of the loss will be on a person ordinarily transported by the vehicle; and
iv. The impact of the loss will be on a person other than the suspended driver.
31Given those criteria, I cannot conclude that the impoundment will result in exceptional hardship as that term is used in the Act and Regulation.
32The appellant states that her household requires two vehicles to accommodate the transportation needs of the appellant, her brother and daughter. After the impoundment they are down to one vehicle, and she must use it to run household and personal errands as well as drive her brother and daughter to work. That, as well as the financial burden of the impoundment itself, has placed additional pressure on the household and is causing the appellant emotional stress.
33I note that there is no evidence that the impoundment had resulted in a threat to the health and safety of any person, or that essential household tasks such a getting groceries or attending important appointments have been seriously impeded.
34I acknowledge that for a family of three adults, each with their own employment and other responsibilities, having only one vehicle is challenging. However, based on the evidence presented, it appears that the family’s transportation needs can be met through use of the second vehicle. In other words, the appellant has an alternative to the impounded vehicle. At this point, since the appellant has not demonstrated that there is no alternative to the impounded vehicle, her appeal must fail.
35I have no doubt that making do with one vehicle is difficult. Juggling the transportation needs of the household requires planning and flexibility and, I am sure, has resulted in inconvenience and additional stress for all concerned. However, the Regulation specifically prohibits the Tribunal from considering inconvenience to any person when determining whether the impoundment will result in exceptional hardship. It also prohibits the Tribunal from considering financial loss if there is an alternative available to the impounded vehicle.
36In summary, the appellant has not met the onus of establishing that the impoundment will result in exceptional hardship as that term is defined and limited by the Act and Regulation. I therefore confirm the impoundment.
ORDER
37The appeal deadline is extended to November 4, 2022.
38Pursuant to s.50.2(5) of the Highway Traffic Act, I confirm the impoundment of the appellant’s vehicle.
LICENCE APPEAL TRIBUNAL
Stephen Scharbach, Member
Released: November 23, 2022
Footnotes
- Highway Traffic Act, s. 50.2
- Ontario Regulation 631/98, s. 9 (the “Regulation”)
- Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G
- 2012 ONSC 1492
- Ontario Regulation 631/98 (“Regulation”)