Tribunal File Number: 13941/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:
Joshua Ferreira
Appellant (Moving Party)
and
Registrar of Motor Vehicles
Respondent (Respondent on Motion)
DECISION AND ORDER ON MOTION
ADJUDICATOR: Jacqueline Castel
APPEARANCES:
For the Appellant: Joshua Ferreira, Self-represented
For the Respondent: Stella Velocci, Agent
Place and Date of Motion: Teleconference March 29, 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 February 6, 2022, because it was being operated by the appellant, whose driver's licence was under suspension due to a Criminal Code conviction. 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 under suspension.
3The Tribunal received the appellant's Notice of Appeal ("NOA") on March 21, 2022. The deadline for filing the appeal was February 21, 2022. As such, the NOA was filed approximately 4 weeks after the deadline.
4The vehicle was released to the appellant, upon payment of the impound fees, on March 23, 2022, the day on which the 45-day period of impoundment ended.
5The appellant is requesting that the 15-day timeline for appealing the impoundment be extended, and the respondent is opposing the request.
6The motion to extend the timeline for appealing the impoundment is denied. Reasons follow.
B. THE ISSUE TO BE DECIDED:
7The 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:
8Pursuant 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.
9The 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.
10In 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.
11The appellant has the onus to establish that the justice of the case requires the granting of the extension, but he or she 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?
12The appellant submitted that his spouse only learned that the impoundment could be appealed after the fifteen days for filing the appeal had elapsed. He admitted that he did not turn his mind to whether a right of appeal existed during the appeal period. He indicated that he was preoccupied with other matters, as his spouse was nine months pregnant, and they have another young child. In addition, the appellant stated that his spouse had complications with her pregnancy, but on cross-examination he admitted that these complications occurred on March 1st, 2022, one day before their healthy baby was safely delivered.
13Given the appellant's admission that he did not take any steps to look into whether a right of appeal existed, during the 15-day appeal period, I find that he did not have a bona fide intention to appeal the impoundment during the appeal period. The complications with his spouse's pregnancy, and the birth of his child, occurred over one week after the appeal period had elapsed. As such, I do not find them to be an excuse for the appellant's failing to research whether a right of appeal existed during the appeal period.
The length of the delay
14On the second factor, the length of the delay, it is my finding that a delay of approximately 4 weeks, in filing the NOA, is significant.
Prejudice to the Registrar
15The third factor is prejudice to the opposing party. Ms Velocci submitted that there would be prejudice to the Registrar, if the appeal proceeded; specifically, if the appellant was successful on the merits of her appeal, the respondent would be responsible for the fees of towing and storage for the entire impound period, as the 45-day period of impoundment ended on March 23, 2022. In these circumstances, I agree that the Registrar would encounter prejudice by the late filing of the NOA.
Merits of the appeal
16The 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.
17The appellant indicated, in the NOA, that he wishes to appeal under section 50.2(3)(d), specifically, on the ground that the impoundment has resulted in exceptional hardship.
18In order establish that the impoundment resulted in exceptional hardship, the appellant would need to demonstrate that there was no reasonable alternative to the vehicle during the period of impoundment.
19The appellant stated that he has missed work during the period of impoundment. However, this was not related to the impoundment. The appellant's spouse typically drives him to contracting jobs, since his licence is under suspension, and she was unable to do so because of her pregnancy or the fact that she had just delivered their baby. In other words, regardless of whether the vehicle had been impounded, his spouse would not have been able to drive him to work during the period of impoundment. The appellant also acknowledged that he was planning on taking time off work to assist his spouse with childcare after the birth of their baby.
20Further, the appellant stated that family members assisted in driving his spouse to the hospital when pregnancy-related complications occurred on March 1, 2022. The appellant also indicated that there are 911 emergency services in their community.
21There was no indication in the NOA or in the appellant's submissions at the motion hearing that he was unable to make alternative arrangements for groceries or errands during the period of impoundment. Finally, the appellant informed that he paid the impoundment fees, and the vehicle has been in his possession since March 22, 2022.
22Based on the above, I find that the appellant does not have a reasonable chance of succeeding on appeal. There was an alternative to the impounded vehicle and the impoundment did not result in a threat to the health or safety of anyone normally transported by the vehicle.
23In the context of the applicable factors, it is my determination that the justice of the case does not warrant extending the time period for filing the motion. There was no evidence that the appellant intended to appeal the impoundment during the 15- day period of appeal, a significant amount of time has elapsed, there is prejudice to the respondent in proceeding after so much delay, and the appellant does not have a reasonable chance of succeeding on the merits of the appeal.
ORDER ON MOTION
24Accordingly, the motion is denied.
LICENCE APPEAL TRIBUNAL
Jacqueline Castel, Member
Released: March 30, 2022