Walid Rifai v. Registrar of Motor Vehicles, 2022 CanLII 68313

Date: 2022-07-21

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:

Walid Rifai

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Colin Osterberg, Member

Appearances:

For the Appellant: Walid Rifai, Self-represented

For the Respondent: Leila Pereira, Agent

Heard by Teleconference: July 11, 2022

REASONS FOR DECISION AND ORDER

OVERVIEW

1Walid Rifai (the "appellant") seeks to appeal the impoundment of his 2018 Toyota motor vehicle under section 55.1 of the Highway Traffic Act (the "Act”).

2The appellant's vehicle was impounded on June 9, 2022, when it was stopped by the police and the appellant’s son, Khaled Rifai, was found to be driving it while his licence was under suspension. The period of impoundment is 45 days and expires July 24, 2022. The appeal was filed on June 28, 2022, which is the 19th 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.

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 testified that he was aware that the vehicle had been impounded on June 10, 2022, the day after it was impounded. He initially said he did not intend to file an appeal because he thought the impoundment fees were only around $1,300.00. He said he received a letter on June 28, 2022, from the towing company which said that the costs of impoundment were over $4,000.00 and he decided to appeal. He filed his Notice of Appeal that same day.

10The appellant later testified that he intended to appeal during the appeal period but did not do so in time because he was waiting for a notice of the impoundment from the Ministry of Transportation (“MTO”) which he thought he needed in order to file the appeal. He never received any such notice from the MTO.

11I did not find the appellant to be a credible witness and do not accept his evidence that he intended to file an appeal within the 15-day appeal period for the reasons which follow.

12First, this is the second time the appellant’s vehicle has been impounded. The appellant’s vehicle was impounded on November 18, 2020, when his son was driving with a suspended licence. The appellant appealed that impoundment and had to bring a motion to extend the time to file that appeal because he did not file within the 15-day appeal period. The appellant is aware of the appeal process and that there is a 15-day period in which an appeal must be filed.

13Second, the appellant did not commence his appeal after receiving notice from the MTO. In fact, he says he never received notice from the MTO. Rather, he filed the appeal after receiving a letter from the towing company telling him the amount he would have to pay once the vehicle was released. This is consistent with the appellant forming the intention to appeal on June 28, 2022, when he received the letter from the towing company and is inconsistent with his evidence that he was waiting to appeal until he received a notice from the MTO. The appellant did not give a credible explanation as to why he filed the Notice of Appeal on June 28, 2022, when he had still not received the notice from the MTO.

14Third, the appellant’s evidence that he did not intend to appeal because he thought the cost of impoundment was $1,300.00 is inconsistent with his evidence that he was waiting for notice of the impoundment from the MTO before appealing. When this was pointed out to the appellant, he abandoned the former theory and asserted that the only reason he waited was because he had not received notice from the MTO. Both the appellant’s inconsistent evidence and the fact that he modified that evidence during the course of the hearing, raise concerns with respect to his credibility.

15Finally, the evidence of the Registrar is that a Notice of Impoundment and Release was sent to the appellant by June 13, 2022, at the latest. The appellant confirmed that it was addressed correctly and that he receives other mail at that same address but denies that he received the Notice of Impoundment and Release. The appellant presented no evidence that he has failed to receive other items mailed to him at that address and presented no explanation why he would not have received the Notice of Impoundment and Release. I do not accept his evidence in that regard.

16I am not satisfied that the appellant has shown a bona fide intention to appeal within the appeal period in the circumstances. Rather, I find that he did not form the intention to appeal until after the appeal period ended when he received the letter from the towing company described above.

Length of the delay

17I find the delay to be significant in this case. The appellant presented no satisfactory justification for the delay or the length of the delay.

18Although the appeal was filed 4 days after the end of the appeal period, the appellant knew about the impoundment the next day and already knew about his right to appeal and the period within which he could file the appeal. Although 4 days may not be significant in circumstances where the appellant is not aware of the appeal period or his right of appeal. I find that it is significant where, as in this case, the appellant knew about the appeal period and chose not to appeal within that period. As noted above, I find that he chose not to appeal until the 19th day after the vehicle was impounded because he thought the cost of impoundment would be less than it actually turned out to be. I find that this is insufficient explanation to justify waiting until after the appeal period had expired before he filed the appeal.

19I find that the appellant’s delay in filing his appeal was significant and that he presented no reasonable excuse for failing to commence the appeal before the 15-day appeal period had expired.

Prejudice

20The 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

21On a motion to extend time, the appellant need not establish his case on a balance of probabilities but only that his version of events, if believed, could reasonably result in a favourable outcome.

22The appellant appeals on the ground that the vehicle was stolen at the time it was detained for the purpose of impoundment. He says that his son suffers from a mental disorder and that he and his family have taken measures to prevent him from driving the vehicle. When asked what those steps were, the appellant said that he tells his son daily that he is not allowed to use the vehicle and he keeps his keys in a locked bag so that his son cannot access them.

23The appellant says that, prior to the impoundment, his son went missing from the family home and that he and his wife spent the evening looking around the neighbourhood for him. The police eventually advised the appellant that his son was at a nearby restaurant hiding in a bathroom. The appellant went to the restaurant, found his son, and drove him home. Within minutes of getting home, the appellant’s son took the keys and drove the vehicle away. It was later stopped by the police and impounded.

24I am satisfied that the appellant’s version of events, if believed, could reasonably result in a finding that the vehicle was stolen when it was detained for the purpose of impounding it. That said, I have found the appellant to lack credibility, and this may negatively impact his chances of success should the matter proceed to a hearing.

25In summary, I 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 some likelihood that the appeal, if allowed to proceed, would be successful on its merits.

26I find that the justice of the case requires that the request for an extension be denied. The appellant knew that he could appeal the impoundment on the basis the vehicle was stolen and chose not to do so until he became aware of the costs of impoundment. The purpose of s. 50.2 of the Act is to provide vehicle owners with a limited opportunity of appeal and the Act specifically limits the time within which an appeal may be brought. Although the Tribunal may extend that time where the justice of the case requires it, that discretion should not be applied where, as in this case, the appellant choses not to appeal and then changes his mind when he finds out the impoundment costs.

27In all of the circumstances, I am not satisfied that I should exercise my discretion to extend the time for filing the appeal.

ORDER

28For the reasons set out above, the appellant’s motion to extend the time for filing his appeal is denied.