Licence Appeal Tribunal File Number: 15213/MVIA
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:
Tanya Mifflin
Appellant
and
Registrar of Motor Vehicles
Respondent
MOTION DECISION AND ORDER
ADJUDICATOR:
Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant:
Tanya Mifflin
For the Respondent:
Leila Pereira, Agent
Heard by Teleconference:
October 25, 2023
REASONS FOR MOTION DECISION AND ORDER
OVERVIEW
1The appellant, Tanya Mifflin, seeks an extension of time to file an appeal for the 45-day impoundment of her 2015 Mazda CX5 (the “vehicle”). The appellant’s friend, C.S., was operating the vehicle on August 5, 2023, when he was stopped by police. A police officer determined that C.S. was driving the vehicle while his licence was under suspension due to a Criminal Code conviction. The vehicle was impounded pursuant to subsection 55.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act” or the “HTA”) which 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. In this case, C.S.’s driver’s licence was suspended for failing to complete a remedial program.
2The appellant states that she was unaware that the right to appeal an impoundment existed. She also states that no police officer contacted her on the day of the impound otherwise she would have charged C.S. with theft.
3The appellant’s vehicle was impounded for 45 days and expired on September 19, 2023. She filed her appeal on September 7, 2023, which is the 33^rd^ day after the impoundment. This is 18 days past the appeal date deadline.
ISSUE
4The issue to be determined is whether the appellant has established reasonable grounds to support an extension of time.
RESULT
5On the evidence before me at the hearing, I find that the appellant has adequately established reasonable grounds to support an extension of time to appeal the 45-day impoundment of her vehicle.
LAW
6Pursuant to section 9 of Ontario Regulation 631/98 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.
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 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.
9The onus is on the appellant to establish that there are grounds for the granting of the extension. My analysis will include a balancing of the conclusions reached when applying the facts of the case to the factors.
ANALYSIS
The existence of bona fide intent to appeal
10I find the appellant did not demonstrate a bona fide intention to appeal this matter within 15 days of the impoundment. However, this was due to the fact that she did not receive the information about the right to appeal that would typically be received at the time of the impoundment. C.S. would have been served with the Notice of Impoundment by the impounding officer. However, the evidence before me indicates that C.S. did not share with the appellant any document bearing information on how to pursue an appeal with the Tribunal. In addition to this, there was a delay in entering the impoundment information into the Ministry of Transportation system. As of September 11, 2023, the information still had not appeared on the SIMS system, which links impounds to the Ministry of Transportation. Only then could a Notice to Registrar be produced. The appellant was instructed by the Tribunal to contact the police department that issued the impoundment via their non-emergency number. The appellant was unsuccessful in this attempt.
11The appellant’s position is that she was not aware of the option to appeal the impoundment. She testified that she was immediately aware that the vehicle was impounded because she was awakened by C.S. advising of the situation. I therefore find that the appellant knew that her vehicle was impounded on the day it was impounded by police. However, the Notice of Impound and Release produced at the hearing bears a date of September 20, 2023. The backside of this document describes the steps to be taken to appeal an impound. It is unclear to me if the appellant ever saw this document.
12In addition to this, the appellant also explained that she was going through a difficult period and other personal challenges took priority. The above reasons provide sufficient reason as to why the appeal was filed 18 days beyond the last day of the impoundment period.
The length of delay
The appellant’s notice of appeal was received 33 days after her vehicle was first impounded (18 days after the 15-day period specified in s. 9 of the Regulation). I do not find this to be a significant period of delay especially when considering that the appellant was not provided information on how she could launch an appeal of the impoundment.
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. However, this does not weigh as heavily in favour for the respondent because of the mere economic value of the impoundment.
Merits of the appeal
14On a motion to extend time, the appellant need not establish her case on a balance of probabilities but only that her version of events, if believed, could reasonably result in a favourable outcome. I find that the appellant has presented grounds for appeal which disclose a reasonable chance of success should the appeal be allowed to continue to a hearing.
15The appellant testified that she was aware that C.S. did not have a valid driver’s licence and he did not have permission to drive her vehicle. At the hearing, the appellant also went on to state that she would have charged C.S. with theft if she was notified by police.
16The appellant could rely on the grounds that the vehicle was stolen at the time of the impound.
17The appellant may also rely on claiming exceptional hardship due to the loss of the vehicle during the impoundment period. She presented some evidence upon which I can conclude that she might be successful in her appeal on the ground of exceptional hardship.
18I do note that the appellant wrote in her reasons for appeal that she cannot afford to pay the impound fee. This implies that the appellant may consider this as a ground of exceptional hardship. 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.
19I am satisfied that the justice of the case requires that an extension of time be granted in the circumstances of this case.
ORDER
20For the reasons set out above, pursuant to the Tribunal’s authority under s.7 of the Licence Appeal Tribunal Act, 1999, I grant the appellant’s motion to extend the time for filing of the appeal. The Tribunal shall schedule a hearing of this appeal and notify the parties accordingly.
LICENCE APPEAL TRIBUNAL
__________________________
Raymond C. Ramdayal, Member
Released: December 1, 2023