Licence Appeal Tribunal File Number: 15280/MVIA

In the matter of 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:

Consbec Inc.

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Appellant:

Phil Kitza, Health and Safety Coordinator

David Secord, Fleet Manager

For the Respondent:

Sadia Ashraf, Program Advisor

Ian Sookram, Program Advisor

Heard by Teleconference:

October 19, 2023

OVEVIEW

1Consbec Inc. (the “appellant”) filed a motion seeking an extension of time to file an appeal of the 45-day impoundment of its 2017 Dodge RAM Truck which happened on September 7, 2023. At the time of the impoundment, one of its employees was driving the vehicle while his driving privileges were under suspension resulting from a prescribed Criminal Code conviction.

2The appellant submits that the motion for an extension should be granted because they were not aware that they could appeal the impoundment and filed the appeal once they were aware.

3The appellant did not file their appeal until October 4, 2023, which is after the 15-day period allowed for filing an appeal and 27 days after the initial date of impoundment.

4Subsection 55.1 (1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) 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.

5The respondent opposed the appellant’s motion and submitted that the appellant was sent notice of the impoundment on September 7, 2023, but did not appeal for 27 days, missing the deadline to appeal by 12 days. The appellant should have known it could appeal and the statutory deadline for doing so and has not provided a reasonable explanation for not filing the appeal by the deadline.

ISSUES

6The issue to be determined is whether the appellant has established reasonable grounds to support an extension of time.

RESULT

7On the evidence before me at the hearing, I find the appellant has failed to establish reasonable grounds to support an extension of time and therefore the motion is dismissed. The appeal is dismissed.

ANALYSIS

8Pursuant to section 9 of Ontario Regulation 631/98 made under 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.

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., Schedule G.

10In 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 in making that 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.

11No single factor determines the analysis. The onus is on the appellant to establish that the justice of the case requires that the extension be granted.

The existence of a bona file intent to appeal

12I find that the appellant did not have a bona fide intention to appeal before the expiration of the appeal period.

13The appellant testified that the company was not aware that they could appeal the impoundment until September 29, 2023, when their representative had a telephone conversation with the police who provided the contact information for the Tribunal. The appeal was filed shortly after this conversation. The appellant’s representative acknowledged during cross-examination that they received the Notice of Impoundment and Release (“NOIR”) within a week of the impoundment but by oversight did not review the back of the notice which provided the appeal deadline and the process for appealing the impoundment. As a result, there was a delay in filing their appeal.

14The respondent submits that the NOIR was mailed to the appellant at the correct address on the date the vehicle was impounded. Further, the notice of impoundment provided information about how to appeal as well as the 15-day deadline for appealing the impoundment. Despite receiving this information, the appellant did not take any steps to appeal the impoundment within the appeal period.

15I find the appellant has not established that they had a bona fide intention to file an appeal during the appeal period. First, as acknowledged by the appellant, they received the NOIR within a week of the impoundment which had the information for how to appeal the impoundment and the deadline for doing so. I find that the respondent provided proper and timely notice and that it was up to the appellant to read, understand and comply with same, which they did not do in this case. Second, I also find the evidence about when representatives of the appellant had various conversations with the police inconsistent, as at first the representative indicated that the conversation took place in October and then indicated it was mid-September. In my view, there was no reasonable explanation for why there was such a delay in making inquiries about the impoundment from the date the vehicle was impounded until the end of September. For these reasons, I am not satisfied that there was a bona fide intention to appeal within the required time period.

Length of the delay

16The appellant filed the notice of appeal 27 days after the vehicle was impounded (12 days after the 15-day period specified in s.9 of the Regulation). I find this to be a significant period of delay. Although I can appreciate that this was the first time the appellant was placed in this situation and they are not familiar with the procedures involved in an appeal, as noted above I did not find the explanation for the delay reasonable. I find the delay was lengthy and the appellant presented no reasonable explanation for the length of the delay once the NOIR was received.

Prejudice to the other party

17Given the fact that this appeal is being made 12 days past the deadline to appeal, 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 if the appellant’s appeal is successful, the Registrar is required to pay the cost of impoundment. The longer the delay, the greater the cost to the Registrar. While this is an important consideration, it did not weigh as heavily in favour for the respondent because of the financial cost of the impoundment to the appellant.

The merits of the appeal

18On a motion to extend time, the appellant need not establish their case on a balance of probabilities but only that their version of events, if believed, could reasonably result in a favourable outcome. I find the appellant has not presented grounds for appeal that disclose a reasonable chance of success should the appeal be allowed to continue to a hearing.

19The appellant is appealing the impoundment on the on the grounds that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension.

20The Tribunal has considered various different steps an owner can take to determine whether they have exercised due diligence. Such steps may include asking to see the driver's licence of the driver before allowing them to drive and doing a search on the Ministry of Transportation’s website. The steps necessary to establish due diligence may be different depending on the circumstances of each case, but the appellant must always establish that they took active steps, as opposed to making assumptions. The Tribunal has also consistently held that the owner’s obligation is to exercise due diligence at or near the time the vehicle is detained. This is consistent with the wording of the Act.

21The appellant, Consbec Inc., is a mining and construction contracting company which owns a fleet of 147 vehicles. The appellant argues that they exercised due diligence in ensuring that the employee had a valid driver’s licence prior to the vehicle being impounded because the employee sent a copy of his driver’s licence to his supervisor, which appeared to be valid. In addition, the employee also signed a company vehicle policy on January 20, 2021, which states that an employee’s driving privileges are immediately revoked it their driver’s licence is suspended. Further, employees will provide an up-to-date driver’s abstract to their supervisor prior to using the company vehicle. The policy notes that any violation could result in a warning, suspension, or termination from employment. In addition, the employee also completed a defensive driving awareness course in April 2023. The appellant submits that the employee blatantly lied about the status of his licence.

22I find that the appellant has no reasonable chance of success on appeal. Based on the facts before me, the appellant did not exercise due diligence to ensure that the employee had a valid licence prior to the impoundment. Of significance, this employee’s licence was under suspension and restriction when he was re-hired by the appellant in April 2023. Further, the employee’s licence history supports that his licence had been under the condition that any vehicle he drives be equipped with an ignition interlock device since October 2010. The appellant testified that when an employee is hired, they request a driver’s abstract going back three years. However, in this case, this was not done. Instead, the appellant took the employee’s word that he had a valid licence at face value without conducting any inquires to confirm same. Due to the number of vehicles owned by this company and the nature of their business, I find driving plays a large role in their regular operation. Based on the facts of this case, I find the appeal does not have a reasonable chance of success should an extension of time be granted.

23Having considered the criteria established in Manuel and s. 7 of the Licence Appeal Tribunal Act I am not satisfied that the justice of the case requires that an extension of time be granted in the circumstances of this case.

ORDER

24For the above-noted reasons, the appellant’s motion for an extension of time to file an appeal is dismissed. The appeal is dismissed.