An 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 the Act.
Between:
Malika McGregor
Appellant
and
Registrar of Motor Vehicles
Respondent
MOTION DECISION AND ORDER
ADJUDICATOR:
Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant:
Malika McGregor
For the Respondent:
Leila Pereira, Agent
Heard by Teleconference:
September 7, 2022
REASONS FOR MOTION DECISION AND ORDER
OVERVIEW
1The appellant, Malika McGregor, seeks an extension of time to file an appeal for the 45-day impoundment of her 2009 Volkswagen Tiguan (the “vehicle”). The vehicle was being driven by an individual who was subject to an interlock ignition device requirement. The individual was granted permission by the appellant to operate her vehicle because both believed that the interlock condition was removed from the driver’s record, however, when he was subsequently stopped and arrested on April 29, 2022, the police determined that the requirement was still active on his record.
2The appellant states that she first learned about her option to appeal the impoundment from the courts on August 22, 2022, after the charge of operate while prohibited was withdrawn against the driver by the Crown. The appellant’s appeal was signed on August 23, 2022 and received by the Ministry of Transportation (or “MTO”) on August 24, 2022. This is 117 days after the initial date of impoundment.
3Subsection 55.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act” or the “HTA”) allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the driver’s licence of the person who is driving a vehicle is under suspension for certain Criminal Code offences. The vehicle was impounded pursuant to this subsection of the Act.
ISSUE
4The issue to be determined is whether the appellant has established reasonable grounds to support an extension of time.
CONCLUSION
5On the evidence before me at the hearing, I find that the appellant has failed to establish reasonable grounds to support an extension of time for her to appeal the 45-day impoundment of her vehicle.
LAW
6Pursuant to section 9 of Ontario Regulation 631/98 issued under the Highway Traffic Act, R.S.O. 1990, c. H. 8, (“the Act”) an appeal of an impoundment must be filed within 15 days after the day the vehicle was detained together with the fee established by the Tribunal.
7The Tribunal has jurisdiction to extend the time for filing of an appeal pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Schedule 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 under section or any other Act, 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.
8In determining whether to grant the extension, I have taken into consideration factors which are usually applied in similar cases. The criteria in making a determination as to whether there are reasonable grounds to grant an extension of time include:
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.
9The onus is on the appellant to establish that there are reasonable grounds for the granting of the extension. I agree with the respondent’s submission that the analysis requires a balancing of the conclusions reached when applying the facts of the case to the factors.
ANALYSIS
The existence of bona fide intent
10The appellant did not demonstrate bona fide intent to appeal this matter within 15 days of the impoundment. I find the appellant’s submission that she was unaware of the option for appeal was not a compelling reason as to why the appeal was filed over 100 days late. If the appellant had intended to file an appeal, she ought to have explored possible options closer to the time of the impoundment. She would have received the Notice to Registrar since she is the owner of record of the vehicle. She argued that she was only provided a screenshot of the first page of the document from the driver who was not living with her at that time.
11Nonetheless, I find that there was ample opportunity for the appellant to seek relief and/or advice on what recourse may be available to her when her car became impounded. Not only did she not explore options in the first weeks of the impoundment, but it took an extraordinarily long time for her ascertain her appeal rights.
The length of delay
12The appellant’s notice of appeal was received 117 days after her vehicle was first impounded (102 days after the 15-day period specified in s. 9 of the Regulation). I find this to be a significant period of delay during which time information was available through the Licence Appeal Tribunal (LAT) website, the MTO and perhaps even the towing facility from which she picked up her vehicle. There was also ample time for her to seek professional legal advice if necessary.
Prejudice to the other party
13Given the fact that this appeal is being made well past the impoundment period, I find that should the extension be granted, the Registrar would be prejudiced as it benefits from a hearing without delay. This is due to the fact that the appellant’s success on appeal would determine the total number of days the vehicle would be impounded. The longer the delay, the greater the cost to the Registrar.
14I find that this is particularly important in this case given the fact that the appellant may have been successful in her appeal since the charges against the driver was dropped. This outcome is completely separate from the Tribunal’s process; however, it may have persuaded the respondent to settle the matter earlier.
Merits of the appeal
15In her written reasons for appeal, the appellant states that paying the impound fee has caused her significant hardship. There is a specific test for exceptional hardship that is set out in the Regulation. The first part of the test requires an appellant to show, on a balance of probabilities, that no alternative to the impounded vehicle is available. If the appellant is able to show this, then the Tribunal must consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle.
16The Tribunal cannot ever consider the factor set out in s. 10 (2)(a) which is, “inconvenience to any person.” Further, financial hardship due to the cost of the impoundment itself is generally not a factor that the Tribunal may consider in determining the issue of exceptional hardship, though each case is decided based on the evidence at the hearing.
17I find that the appellant has no reasonable chance of success on appeal as she failed to provide a ground of appeal as set out in the legislation. I concur this may or may not be true and would only be determined in a hearing.
18Applying the criteria established in s. 7 of the LAT Act, I am not satisfied that the appellant has demonstrated reasonable grounds for the extension of time for her appeal to be filed.
ORDER
19For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I dismiss the appellant’s motion to extend the time for filing of the appeal.
20I order that the Tribunal’s file be closed.
LICENCE APPEAL TRIBUNAL
Raymond C. Ramdayal, Member
Released: October 20th, 2022