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:
Kalen Wilson
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Colin Osterberg, Member
APPEARANCES:
For the Appellant: No one appearing
For the Respondent: Stephen Grootenboer, Agent
Heard by Teleconference: March 3, 2022
REASONS FOR DECISION AND ORDER
OVERVIEW
1Kalen Wilson (the "appellant") appeals the impoundment of his 2010 Ford motor vehicle under section 55.1 of the Highway Traffic Act (the "Act”).
2The appellant's vehicle was impounded on September 14, 2021, when it was stopped by the police and the appellant was found to be driving it while his licence was suspended. The period of impoundment was 45 days and expired October 29, 2021. The appeal was filed on January 7, 2022, which is the 115th 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 his appeal. The appellant was given notice of the date and time of the hearing but did not appear. Given the appellant’s failure to appear, the length of time since the date of impoundment, and the fact that the filing fee for the appeal was waived, I ordered that the motion hearing proceed in the appellant’s absence pursuant to s. 7(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.
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
9There was no allegation in the Notice of Appeal that the appellant intended to commence an appeal within 15 days of the date of impoundment. There is no evidence that the appellant tried to contact the Registrar or the Tribunal to indicate such an intention until January 2022.
10Based on the evidence, I am not satisfied that the appellant had a bona fide intention to appeal within the appeal period.
Length of the delay
11I find the delay to be significant in this case. The appeal was filed on January 7, 2022, 100 days late.
12The Notice of Appeal states that the appeal was commenced late because the appellant could not afford the filing fee. Given his failure to present evidence at the hearing, I am not satisfied that the appellant’s explanation accounts for the entire period of delay.
13I find that the appellant’s delay in filing his appeal was significant and that he presented no satisfactory excuse for failing to commence the appeal before the 15-day appeal period had expired.
Prejudice
14The 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
15On a motion to extend time, the appellant need not establish his case on a balance of probabilities but must show that his version of events, if believed, could reasonably result in a favourable outcome.
16The appellant appeals on the grounds that he exercised due diligence in attempting to determine that his driver’s licence was not suspended, and that the impoundment will cause exceptional hardship.
Due Diligence
17In the context of this appeal, due diligence required steps to be taken to confirm that the appellant had a valid licence. There was no evidence before the Tribunal as to any steps the appellant took to ensure his licence was valid on the date of impoundment.
18The evidence presented by the Registrar shows that the appellant’s licence was suspended for impaired driving on September 28, 2011 and was never reinstated because the appellant failed to complete a remedial program. His licence was also suspended for medical reasons on September 4, 2021.
19I find that there is no reasonable prospect that the appellant would be successful in establishing that he exercised due diligence in the circumstances.
Exceptional hardship
20Section 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.
21Subsection 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 alternative available, then his 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.
22If he 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.
23The Tribunal is 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 the 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, other than the person whose driving while his driver’s licence was under suspension resulted in the impoundment of the motor vehicle, ordinarily transported by the motor vehicle.
24The Tribunal can never consider whether the impoundment will result in inconvenience to a person.
25There was no evidence before the Tribunal which could reasonably result in a finding that the impoundment will result in exceptional hardship as it is defined in the Act.
CONCLUSION
26I find that the appellant has failed to demonstrate that he had a bona fide intention to appeal within the appeal period. I find that his 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
27For the reasons set out above, the appellant’s motion to extend the time for filing his appeal is denied.
LICENCE APPEAL TRIBUNAL
Colin Osterberg, Member
RELEASED: March 14, 2022