Date: 2022-09-26

Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an impoundment of a motor vehicle pursuant to section 55.1 of that Act

Between:

Kimberley Simmons

Appellant

and

Registrar of Motor Vehicles

Respondent

MOTION ORDER

ADJUDICATOR: Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant: Kimberley Simmons, Self-represented

For the Respondent: Leila Pereira, Agent

Heard by Teleconference: September 20, 2022

ORDER ON MOTION

BACKGROUND

1Kimberley Simmons (the “appellant”) filed a motion for an order granting an extension of time for the appellant to file an appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“Act”) from the impoundment of her 2017 Hyundai (the “vehicle”) for 45 days on August 16, 2022 by the Registrar of Motor Vehicles (the “respondent”). At the time the vehicle was detained in order to be impounded it was being driven by a person that the appellant knew did not have a valid driver’s licence and the appellant was a passenger.

2The appellant wrote in her Notice of Motion that the time for her appeal should be extended because she was under mental stress.

3The respondent opposed motion for extension of time on the basis that the length of delay, specifically seven days after the appeal period expired, is substantial and the respondent would be prejudiced by the granting of an extension of the time to appeal.

issue

4The issue to be addressed in this hearing is whether the Tribunal should extend the time for the appellant to file her appeal.

RESULT

5The appellant’s motion to extend the time to file her appeal is denied. The appeal shall not proceed.

LAW AND ANALYSIS:

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

6Section 9 of O. Reg. 631/98, entitled “Long-Term Vehicle Impoundment Under Section 55.1 of the Act”, states that an appeal of an impoundment under s. 55.1 of the Act must be filed within 15 days of the impoundment.

7The appellant’s motion is to extend the time for filing her appeal. Pursuant 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.

8To be successful on this motion the appellant must show that there are reasonable grounds for the extension and for the granting an extension of time. The Tribunal must 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.

9The 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.

10I will consider these factors below in light of the evidence of the appellant and her submissions at the hearing.

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

11In her Notice of Motion the appellant stated that her reason for not filing her appeal on time was because she has been under a state of mental stress while trying to sort out many different changes to her life including job loss, temporary homelessness, and minor stress related medical issues and she has been relentlessly working her hardest to “situate stability on as many aspects as possible.” The appellant submitted at the hearing she had access to a computer for a short time on August 17, 2022, and then on August 24, 2022 was provided with a laptop that she used to research the appeal of the impoundment.

12In contrast to her written submissions, the appellant submitted orally at the hearing that although she intended to appeal, she waited to send in her appeal because of her inability to pay the filing fee. The appellant said she filed her Notice of Appeal and Notice of Motion to extend the time with the Tribunal on September 8, 2022. The appellant said she found out about financial help with the filing fee on September 9, 2022.

13I find that there is insufficient evidence that the appellant had a good faith intention to appeal within the appeal period.

14While the appellant may have been experiencing mental stress during the appeal period, this is no reason not to file the appeal within the legislated deadline.

15Although the appellant said she waited to send in her appeal because of her inability to pay the filing fee, in fact she sent in the appeal and the motion on September 8, 2022, before she found on September 9, 2022 that she qualified for financial help with the filing fee. This leaves me without documentary or other corroborating evidence that the appellant had a genuine intention to appeal prior to the expiration of the legislated deadline.

Length of the delay

16The appellant’s Notice of Appeal is undated but was received at the Tribunal together with her Notice of Motion to extend the time for filing on September 8, 2022, some 7 days late.

17I find there has been substantial delay. The appellant was a passenger in the vehicle at the time of it’s impoundment and so was aware of the impoundment at the time it happened. The appellant should have known or been able to make herself aware of her time-limited right of appeal and file her appeal within the legislated deadline. However, this is only one of the factors to be considered on the motion.

(ii) Prejudice to the other party

18I agree with the respondent’s submission that that the respondent would be prejudiced if the motion was granted because if the appeal goes forward and is successful, the respondent will likely be required to pay greater impoundment fees than if the appeal had been filed within the legislative time.

(iii) Merits of the appeal

19The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Act may, pursuant to s. 50.2, appeal the impoundment. An owner may appeal only on the grounds set out in s. 50.2 (3), (a), (b), (c) and (d) of the Act. Here the appellant confirmed at this hearing that her sole ground of appeal is under s. 50.2(3)(d), specifically that the impoundment will result in exceptional hardship.

20While the bar is low under this heading, it appears that the appeal is unlikely to succeed on the merits, even if the time to appeal is extended, because the appellant said she has been provided with a bus pass by Ontario Works and accordingly has an alternative to the impounded vehicle during the impoundment period. If she had an alternative to the impounded vehicle, then her appeal would fail on this ground as the hearing adjudicator need not consider any other factors.

21To 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 she had a bona fide (or good faith) intention to appeal within the time for appeal and that there has been substantial delay in filing the appeal. If the appeal is allowed to proceed to a hearing, I find that there would be prejudice to the respondent and the appeal is unlikely to succeed on the merits in any event.

22As 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:

23The appellant’s motion to extend the time to file her appeal is denied. The appeal shall not proceed.