Enterprise Rent-A-Car Canada Limited v. Registrar of Motor Vehicles, 2023 CanLII 101098

Licence Appeal Tribunal File Number: 15249/MVIA

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:

Enterprise Rent-A-Car Canada Limited

Appellant

and

Registrar of Motor Vehicles

Respondent

ORDER

VICE-CHAIR: Jeffery Campbell

APPEARANCES:

For the Appellant: Muhammad Aqeel Nawaz, Representative

For the Respondent: Sadia Ashraf, Representative Ian Sookram, Representative

HEARD: October 24, 2023

OVERVIEW

1Enterprise Rent-A-Car Canada Limited (the "appellant") seeks to appeal the impoundment of its 2021 Mitsubishi RVR motor vehicle under section 55.1 of the Highway Traffic Act (the "Act”). Muhammad Aqeel Nawaz, Risk Management Coordinator of the appellant, represented the appellant in this matter.

2The appellant's vehicle was impounded on July 21, 2023, when it was stopped by the police when Jocelyn Proulx (the “driver”) was driving. The driver had a condition that she not drive a vehicle that does not have an interlock ignition device. The period of impoundment is 180 days. The appeal was filed on September 20, 2023, which is the 61st 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. The appellant brings a motion to extend the time for bringing its appeal.

Motion to Reduce the length of the Impoundment

4The appellant brought a motion requesting the Tribunal to reduce the length of the impoundment from 180 days to a lesser (unspecified) amount of time. The appellant advised that the original impoundment was for 45 days. The Registrar of Motor Vehicles (the “Registrar”) advised that the impoundment was increased to 180 days after a search revealed that the appellant had two previous occasions of vehicle impoundment under s. 55.1 of he Act.

5I advised that, according to the Act, the Tribunal does not have the authority to reduce the impoundment. Section 50.2(5) of the Act states, “The Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle.” As s. 50.2(5) does not include the Tribunal’s ability to modify a decision of the Registrar the motion to reduce the time of impoundment is denied.

Motion to extend the time for filing the appeal

6Upon questioning of Mr. Aqeel Nawaz, he advised that he wishes to request an extension of the time for filing the appeal. The Registrar advised that they do not consent to the extension of time for filing.

7As noted, the date of the Notice of Appeal filed by the appellant is September 20, 2023, 61 days after the impoundment of the vehicle and 46 days beyond the 15-day period to appeal.

8Section 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.

9In 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.

10I have considered the evidence relating to each of these factors as they apply to this case.

a) Bona fide intention to appeal within the appeal period

11I do not accept the appellant’s evidence that it intended to appeal within the 15-day appeal period.

12Mr. Aqeel Nawaz testified that, after being notified by the Greater Sudbury Police of the impoundment, he contacted the Ministry of Transportation on July 27, 2023 with respect to obtaining an early release of the vehicle.

13The Registrar testified that the Notice of Impoundment and Release (the “NOIR”) was dated July 22, 2023 and addressed to the appellant’s Quebec address and would have been sent to the appellant that same day. On the back page of the NOIR is information as to how to appeal the impoundment of the vehicle to the Tribunal.

14It was not until August 31, 2023 that Mr. Aqeel Nawaz reached out to the Tribunal with respect to appealing the impoundment of the vehicle. He testified that, on that same day, the Tribunal emailed him links to facilitate the process of appealing the impoundment. Mr. Aqeel Nawaz then advised that he filled out the Notice of Appeal on September 11, 2023, then took another 8 days before submitting it.

15It appears from the testimony of Mr. Aqeel Nawaz that the appellant’s initial concern was to have the length of the impoundment reduced, and not to appeal the impoundment itself. Indeed, it was not until 41 days after the impoundment that the appellant’s representative reached out to the Tribunal, then another 20 days until they filed the Notice of Appeal.

16There is no evidence before me to suggest that the appellant intended to a file an appeal until August 31, 2023, and there is evidence before me to establish that, once they did have an intention to appeal, they waited another 20 days in order to do that. Accordingly, I am persuaded that the appellant did not have a bona fide intention to appeal within the 15-day appeal period.

b) Length of the delay

17I find the delay of 46 days to be significant in this case. The appellant did not provide any reasonable excuse for the delay in filing its Notice of Appeal.

c) Prejudice

18The 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.

19In the present case, the delay of 46 days leads to a significant increased cost of impoundment for the Registrar. I find that the 46-day increase of cost is sufficient to cause the Registrar substantial prejudice.

d) The merits of the appeal

20On a motion to extend time, the appellant need not establish its case on a balance of probabilities but only that their version of events, if believed, could reasonably result in a favourable outcome.

21While this threshold is low, it appears that the appeal is unlikely to succeed on the merits, even if the time to appeal is extended.

22The grounds of appeal raised by the appellant are that the appellant 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.

23Mr. Aqeel Nawaz testified that the driver would have presented her licence to an attendant at the time of the rental. He testified that the attendant doesn’t do anything except look at the licence. At times they use a ‘blue light scanning system’, which indicates if the licence is valid or not, but Mr. Aqeel Nawaz does not know if that was used in this case.

24The Registrar testified that the driver’s licence of the driver would have shown an “I” condition, indicating that an interlock device was necessary in any vehicle which she drives. The Registrar also submitted that the appellant could have, but did not, check the MTO website to ensure that the driver’s licence was valid and without conditions.

25I find that the appellant performed the bare minimum in terms of satisfying itself of the validity of the driver’s licence. In the very least, it should have been apparent to the appellant that the interlock device condition was attached to the driver’s licence. Also, the appellant did not check with the MTO to ensure that the driver was properly licenced to drive their vehicle. As such, I find that there is little reasonable likelihood of the appellant succeeding on the ground of due diligence.

26For the reasons above, the motion to extend the time for filing the appeal is denied.

ORDER

27The appellant’s motion to reduce the impoundment period is denied.

28The appellant’s motion to extend the time to file its appeal is denied. The appeal shall not proceed.