Jeanette Lapointe v. Registrar of Motor Vehicles, 2022 CanLII 16915

Licence Appeal Tribunal

Date: 2022-03-07

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:

Jeanette Lapointe

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Colin Osterberg, Member

Appearances:

For the Appellant: Jeanette Lapointe, Self-represented

For the Respondent: Stella Velocci, Agent

Heard by Teleconference: February 28, 2022

REASONS FOR DECISION AND ORDER

OVERVIEW

1Jeanette Lapointe (the "appellant") appeals the impoundment of her 2009 Volkswagen motor vehicle under section 55.1 of the Highway Traffic Act (the “Act”).

2The appellant's vehicle was impounded on January 10, 2022, when it was stopped by the police and Dwayne Crease was found to be driving it while his licence was suspended. The period of impoundment was 45 days and expired February 24, 2022. The appeal was filed on February 4, 2022, which is the 25th day after the impoundment.

3Section 9 of Ontario Regulation 641/98 provides that an appeal under s. 50.2 of the Act must be commenced within 15 days of the impoundment.

4The appellant brings this motion to extend the time for filing her appeal.

5For the reasons given below, I find that the justice of this case does not warrant an extension of the time for filing the appeal. The appellant’s motion is therefore denied.

ANALYSIS

6Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch G 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. 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.

8I 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

9The appellant was present when the vehicle was impounded and says that the police officer who impounded the vehicle told her that she could appeal the impoundment. She says she intended to do so and immediately searched the internet for information about the process. The appellant found out that she needed to pay $100 to file the appeal and that the appeal had to be filed within 15 days of the impoundment. The appellant says that she set about trying to raise the money for the appeal and filed the appeal on the day she had enough funds.

10The plaintiff has a full-time job and lives with her adult son who also has a full-time job and shares expenses. She acknowledges that she was able to borrow money from her parents to have the vehicle released from impoundment. She made no inquiries to see whether the filing fee could be waived and never advised the Tribunal that she intended to appeal before filing.

11Based on this evidence, I am not satisfied that the appellant has proven that she had a bona fide intention to appeal within the appeal period.

Length of the delay

12I find the delay to be significant in this case. The appeal was filed 10 days late, on February 4, 2022. The appellant presented no satisfactory justification for the delay or the length of the delay.

13The appellant knew about her right to appeal and the period within which she could file the appeal. I am not satisfied that the appellant was prevented from appealing solely due to her finances. She presented no evidence that she made any significant effort to make alternative arrangements or to communicate her circumstances to the Tribunal.

14Further, the appellant’s evidence at the hearing was inconsistent with the information she presented in her Notice of Appeal. In her Notice of Appeal, she says she only realized that she could appeal 14 days after the impoundment and then had to save the money for filing. She acknowledged at the hearing that she knew she could appeal the day the vehicle was impounded.

15I find that the appellant’s delay in filing her appeal was significant and that she presented no satisfactory excuse for failing to commence the appeal before the 15-day appeal period had expired.

Prejudice

16The 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

17On a motion to extend time, the appellant need not establish her case on a balance of probabilities but must show that her version of events, if believed, could reasonably result in a favourable outcome.

18The appellant appeals on the grounds that she exercised due diligence in attempting to determine that Mr. Crease’s driver’s licence was not suspended, and that the impoundment will cause exceptional hardship.

Due Diligence

19In the context of this appeal, due diligence required more than assuming Mr. Crease held a valid driver’s licence. It required steps to be taken to confirm that he, in fact, had a valid licence. Due diligence usually requires, at a minimum, the owner to have asked to see a valid licence before permitting the person to drive the car. The requirement may, of course, be greater depending on the circumstances.

20The appellant says that, on the date of the impoundment she was at the home of a friend in Kirkfield, Ontario, along with Dwayne Crease, her ex-husband. The appellant had asked Mr. Crease to accompany her so that he could take over the driving if she got tired. It was late at night when the appellant and Mr. Crease left Kirkfield for home. Initially the appellant drove, but she soon became tired, and Mr. Crease took over the driving. While they were stopped at a service center along the way, a police officer instructed the appellant to brush snow from her rear licence plate and then asked to see Mr. Crease’s driver’s licence. The officer determined that Mr. Crease’s licence was under suspension as the result of an impaired driving conviction. The vehicle was impounded.

21The appellant and Mr. Crease were married for 15 years until they separated about a year and a half ago. During their marriage, Mr. Crease worked as a truck driver and a Go Bus operator and required a licence for those jobs. He stopped working because of a medical issue after their separation.

22The appellant did not ask to see Mr. Crease’s licence before allowing him to drive on the date of the impoundment. She could not recall when she had last seen his licence. The appellant acknowledges that she simply assumed that Mr. Crease had a licence and it never occurred to her that he might not. She took no action to determine whether Mr. Crease had a valid licence on the day of the impoundment.

23I am not satisfied that it was reasonable for the appellant to assume Mr. Crease had a valid licence in the circumstances. She and Mr. Crease were no longer living together, and Mr. Crease was no longer a professional driver. She had no effective way of knowing whether Mr. Crease had a valid driver’s licence on the day of the impoundment except by making some enquiry.

24Despite the lower threshold at this stage of proceedings, I find that there is no reasonable prospect that the appellant would be successful in establishing that she exercised due diligence in the circumstances. Assuming that Mr. Crease had a licence does not show the exercise of due diligence in the circumstances.

Exceptional hardship

25Section 10 of O. Reg. 631/98 under the Act (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.

26Subsection 10(1) requires the Tribunal to consider whether an alternative to the impounded vehicle is available. If the owner fails to establish that there is no reasonable alternative available, then her appeal must fail. In order to show that no alternative to the impounded vehicle is available, the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person.

27If she does establish that there is no alternative available, the Tribunal must then consider whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the vehicle, a threat to public health or safety, or a threat to the environment or property of a community in whose service the vehicle is ordinarily used.

28The Tribunal is generally precluded by s. 10(2) from considering financial or economic loss, loss of employment or an employment opportunity, or loss of education or training or an opportunity for employment or training. However, s. 10(3) provides that the Tribunal can consider these things if owner proves that there is no alternative to the impounded vehicle, the loss will be immediate, significant, and lasting, and that the impact of the loss will be upon a person ordinarily transported by the motor vehicle.

29The Tribunal can never consider whether the impoundment will result in inconvenience to a person.

30The appellant has failed to establish that there is no reasonable alternative to the impounded vehicle. She and her son have been able to get to work using public transportation and taxis. She has used her bicycle when the weather could accommodate that. The appellant has conducted her day-to-day activities using public transportation and presented no evidence of any activities that she has been unable to do during the impoundment. The vehicle was released to the appellant on February 24, 2022.

31The appellant says that, because she had to pay $1,500 to have the vehicle released from impoundment, she was unable to pay all of her rent for February. Her rent is $2,500 per month and she was able to pay part of it but not all. She is able to pay her March rent, but her landlord is demanding that she pay the amount in arrears, and she is not able to do that immediately. She is worried that she will be evicted.

32While I am sympathetic to the appellant’s circumstances, I am not satisfied that, even considering the lower threshold, her version of events could reasonably result in a finding that the impoundment will result in exceptional hardship as it is defined in the Act. In particular, the evidence shows that the appellant had reasonable alternatives available to her and, as such, the Tribunal is unable to consider financial or economic losses resulting from the impoundment.

CONCLUSION

33I find that the appellant has failed to demonstrate that she had a bona fide intention to appeal within the appeal period. I find that her delay in filing the appeal is significant, unreasonable, and is prejudicial to the Registrar. I find that there is a low likelihood that the appeal, if allowed to proceed, would be successful on its merits. I find that the justice of the case requires that the request for an extension be denied.

ORDER

34For the reasons set out above, the appellant’s motion to extend the time for filing her appeal is denied.