Date: 2022-08-25

Appeal from a Notice issued by the Director of Vehicle Inspection Standards to Refuse to Register a Motor Vehicle Inspection Station Mechanic

Between:

Mico Reynaldo

Appellant

and

Director of Vehicle Inspection Standards

Respondent

MOTION ORDER

Adjudicator: Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: Mico Reynaldo, Self-represented

For the Respondent: Adriana Nigro, Counsel

Heard by Teleconference: August 15, 2022

ORDER ON MOTION

BACKGROUND

1Mico Reynaldo (the “appellant”) filed a motion for an order granting an extension of time for the appellant to file an appeal pursuant s. 95(5) of the Highway Traffic Act, R.S.O. 1990, chapter H.8 (the “Act”) from a Notice of Proposal dated August 31, 2020 (the “NOP”) issued by the Director of Vehicle Inspection Standards (the “respondent”) proposing to refuse to issue a motor vehicle inspection (“MVIS”) licence to DU30 Motorsport Ltd. and proposing to refuse to register the appellant as an MVIS mechanic on the grounds set out in the NOP.

2The appellant clarified in his submission on the motion that he is only seeking an extension of the time to appeal the refusal by the respondent to register him as an MVIS mechanic. DU30 Motorsport Ltd. is not seeking an extension of the time to appeal the NOP.

3The appellant submits in his Notice of Motion that the time for his appeal should be extended because he needs to work as a skilled person, provide for his growing family and needs to support his community and his family. The appellant also submitted that because of COVID 19, his ability to appeal was restricted because he couldn’t go anywhere and by the time he asked for help at a legal office, it was too late. The appellant also submitted that he could not remember when the NOP was served, and this hampered his ability to appeal. However, the appellant also submitted that he had the NOP in early 2021 or perhaps December, 2020.

4The respondent opposed the appellant’s motion for extension of time to appeal and submitted that the appellant does not meet the test for an extension of the time to appeal. The respondent submitted that there is no evidence of a bona fide intention to appeal despite written notice in the NOP of the 15 day time limit to appeal and the consequences for failure to do so. The NOP states that “you are entitled to a hearing before the Licence Appeal Tribunal on the proposal to refuse if you mail or deliver within 15 days after service on you of this notice, a notice or appeal in the form provided by the Licence Appeal Tribunal, along with the required fees” and gives the address of the Tribunal and the respondent. The NOP also states that “…should you not require a hearing on the said proposal, the decision of the Director to refuse shall be deemed final”. The respondent submitted that the appellant could have mailed in his appeal within the 15 days, and he did not have to go anywhere to do that. Further, the respondent submitted that there has been a delay of some ten months after service of the NOP, there is no prejudice to the appellant because he can always apply again to be registered as a motor vehicle inspection station mechanic and there is minimal information in the Notice of Appeal and the Notice of Motion about the merits of the appeal.

ISSUE

5The issue to be addressed in this hearing is whether the Tribunal should extend the time for the appellant to file his appeal.

RESULT

6The appellant’s motion to extend the time to file his appeal is denied. The appeal shall not proceed.

LAW AND ANALYSIS

Should the Tribunal extend the time for the appellant to file his appeal?

7The authority to refuse to issue an MVIS licence is in s. 91(3)(a), (b), (c) and (d) of the Act. The authority to refuse to register a motor vehicle inspection mechanic is in s. 92(4) of the Act. If proposing to refuse registration, the respondent must provide a written NOP.

8Under s. 95(2) of the Act, a proposed registrant or proposed licensee or proposed licensee may request a hearing by the Tribunal within 15 days after receiving the NOP.

9Under s. 95(5) of the Act, the Tribunal may extend the time for the giving of notice requiring a hearing by a proposed appellant where it is satisfied that there are apparent grounds for granting relief to the proposed appellant and there are reasonable grounds for applying for the extension.

10Pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G the Tribunal may extend the time to file an appeal if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief.

11To be successful on this motion to extend the time for him to file his appeal the appellant must show that there are reasonable grounds for the extension and for the granting an extension of time. The Tribunal may consider the following factors as set out in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.) when deciding whether to grant an extension of time to file an appeal:

1. The existence of a bona fide (good faith) intention to appeal [within the appeal period];

2. The length of the delay;

3. Prejudice to the other party; and

4. The merits of the appeal.

12The Divisional Court determined that the factors to be considered are simply a guide to assist in determining the justice of the case and should not be slavishly followed.

13I will consider these factors below in light of the Notice of Motion and Notice of Appeal filed by the appellant, his submissions at the hearing and the motion materials and submissions of the respondent.

(i) Bona fide (good faith) intention to appeal within the appeal period

14While the appellant was unclear when he received the NOP, the affidavit of Michael Kerr filed by the respondent establishes that the NOP was served on the President and owner of DU30 Motorsport Ltd., Laverna Paolo, the appellant’s spouse, at the appellant’s address on September 30, 2021. The NOP confirms that the corporate applicant, DU30 Motorsport Ltd., put forward the appellant as its proposed mechanic.

15While he was unclear as to the date, at the hearing of this motion the appellant submitted that he received the NOP in early 2021 or perhaps December, 2020. I prefer the respondent’s evidence that the appellant had received the NOP by September 30, 2021, later than the appellant stated.

16There is no evidence before me that the appellant had a good faith intention to appeal within the legislated appeal period of 15 days from September 30, 2021. Although the appellant submitted that he sought legal advice at some point, by then it was too late, the appellant did not file any evidence establishing when he sought legal advice, nor did he give any date in his submission on which this might have occurred.

17As a result, the appellant has not established that he had a bona fide intention to appeal within the appeal period.

(ii) Length of the delay

18The appellant’s Notice of Appeal and Notice of Motion are both dated July 26, 2022.

19This is a delay in filing the appeal of some 9½ months. Even considering the COVID 19 restrictions, I find there has been substantial delay. The appellant could have submitted his appeal to the Tribunal in writing and was not required to go anywhere to do this in the fall of 2021. The appellant was provided with the address and the time limit for doing so in the NOP.

(iii) Prejudice to the other party

20The respondent did not make submissions on any specific prejudice that would be suffered if leave is granted to extend the time to appeal, however, the respondent submitted that the appellant would not be prejudiced if leave to extend the time to appeal is not granted given that the appellant can apply again, and his application will be considered again.

(iv) Merits of the appeal

21The appellant’s Notice of Appeal states that his ability to support his growing family has been greatly impacted because his applications for employment have been adversely affected due NOP which constitutes a red flag on his record, and he would like to clear his record. Further the appellant states that the “charges” are from almost ten years ago at which time he was involved in a serious motor vehicle accident. This is minimal information about the merits of the appeal. There are no dates, details or supporting documentation.

22The appeal is unlikely to succeed on the merits, even if the time to appeal is extended, because the appellant appears to have little evidence to support his position. The appellant’s motion material establishes that he is still a licensed mechanic. The appellant did not put forward any evidence that he has lost employment opportunities because of the NOP. Further, an appeal would not likely “clear any record” as the appellant seeks.

23As a result, I find that the appeal is unlikely to succeed on the merits even if I were to extend the time for filing of the appeal.

24To succeed on a motion for an extension of the time to file an appeal, the burden is on the appellant to demonstrate reasonable grounds on which an extension of time should be granted. I find that the appellant has not demonstrated that he had a bona fide (or good faith) intention to appeal within the time for appeal. The delay between the NOP and filing this filing to extend the time for appeal and the Notice of Appeal is substantial. The appeal is unlikely to succeed on the merits.

25As a result, I find that the appellant has failed to establish that the justice of the case requires an extension of the time for the filing of the appellant’s appeal. The appellant’s motion is denied.

ORDER:

26The appellant’s motion to extend the time to file his appeal is denied. The appeal shall not proceed.