Licence Appeal Tribunal File Number: 15448/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,

And in the matter of a Notice of Motion for an order to extend the time to file the appeal pursuant to s. 9 of Ontario Regulation 631/98.

Between:

Dwain Cooke

Appellant

and

Registrar of Motor Vehicles

Respondent

MOTION ORDER

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Dwain Cooke, Appellant, self-represented

For the Respondent:

Leila Pereira, Agent

Heard by Teleconference:

December 6, 2023

OVERVIEW

1Dwain Cooke (the “appellant”) appeals the impoundment of his 2014 Mercedes 2CA under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”) on November 3, 2023, when the driver of the vehicle, Christopher James Kenneth Reed, was found to be driving it while his licence was suspended due to a prescribed Criminal Code related driving offence.

2The appellant filed a Notice of Appeal with the Tribunal on November 24, 2023, four days after the end of the 15-day appeal period prescribed by Section 9 of Ontario Regulation 631/98 (the “Regulation”).

3The appellant also filed a Notice of Motion on November 24, 2023, seeking an order that the Tribunal grant an extension of the time limit so that his appeal under section 55.1 may be heard.

4The motion on the extension is scheduled to be heard at the commencement of today’s hearing. As stated in the Notice of Motion Hearing, if the extension is granted, the hearing on the merits of the appeal shall proceed immediately after the conclusion of the hearing on the motion.

ISSUE

5Should the Tribunal grant an extension of time to allow the appellant to appeal outside of the legislated timeline?

RESULT

6The extension is denied, and the appeal is therefore dismissed.

ANALYSIS

Motion to extend the time for appeal

7The Regulation provides that an appeal under s. 50.2 of the HTA must be filed with the Tribunal no later than 15 days after the day the motor vehicle was detained for impoundment.

8Under s. 7 of the Licence Appeal Tribunal Act, 1999, the Tribunal may extend a time limitation under the HTA or Regulation to file an appeal if the Tribunal is satisfied there are reasonable grounds for doing so.

9The grounds for considering an extension are articulated in Manuel v. Registrar of Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492. On a motion to extend the time to appeal, the Court determined that the overriding consideration is whether the justice of the case compels the Tribunal to conclude that granting an extension is appropriate. The factors to consider in deciding the justice of the case are:

• prejudice to the other party,

• the merits of the appeal,

• a genuine intention to appeal within the appeal period, and

• the length of the delay.

10The analysis requires a balancing of these factors applied to the facts. No one factor takes precedence over the others. The overriding consideration is whether the “justice of the case” requires that an extension be granted.

11Having considered the circumstances of the case, as described by the parties’ submissions, in relation to each of the four factors, I conclude that the justice of the case does not require an extension of the time limit for the following reasons.

Prejudice to the other party

12There is little prejudice to the respondent. The respondent submitted that an extension of the time limit would prejudice it to the extent of the additional expense, from additional days of impoundment fees, that it would be responsible for if the appellant succeeds in his appeal. In other words, the prejudice arises only from a successful appeal and then only by the additional expense occasioned by the delay in filing the appeal. By filing the appeal four days after the limit, the respondent is potentially exposed to an additional four days of impoundment fees.

13I find there is little prejudice to the respondent in granting the extension. The potential additional expense to the respondent would be born by publicly funded accounts which exist for the respondent’s administration of the provisions of the HTA and the Regulation, including the consequences of a vehicle owner’s right of appeal. In this case the relatively insignificant additional expense (an extra 10%) should not deny an extension of time to hear the appeal. In considering the minimal prejudice to the respondent, the justice of the case is not impeded by an extension of time to appeal.

Merits of the Appeal

14To consider the justice of the case for an extension of the time limit based on the merits of the appeal, I must only be satisfied that there is some merit to the appeal, based on the submissions before me. This is not an exercise in prejudging the hearing outcome.

15The merit of the appeal hinges on the reasons for the appeal and on what grounds the appellant believes his vehicle should be ordered released.

16In his Notice of Appeal, the appellant did not identify which ground he would rely on in seeking an order for the vehicle to be released, but he submitted that the driver had no authority to use the vehicle and that he considered it to have been stolen.

17The appellant submitted that his vehicle had been rented via the Turo app to a renter under the usual contract conditions which restrict the use of the vehicle to only the renter. The driver of the car when it was detained for impoundment was not the renter. Although he submits that the renter was not forthcoming about the details, the appellant concluded that the renter had lent the vehicle to the driver.

18The appellant submits that because the rental agreement prohibits anyone other than the renter from using the car, the driver’s use of it was not authorized and therefore the vehicle was stolen for the purposes of s. 50.2(3)(a).

19The respondent did not make submissions on the whether the ground of “stolen” applies to the facts in this case.

20The appellant submits that the vehicle is used for rental purposes through the Turo app, one of several vehicles he owns and uses for this purpose, and that the rental income from these activities is his sole income. He submitted that although Turo has committed to paying the impoundment fee for the vehicle to be released at the end of the impoundment, the loss of potential rental income on the vehicle during the impoundment represents a financial hardship.

21The respondent submits that the appeal has no basis on the exceptional hardship ground (s.50.2(3)(d)) because the appellant stated that Turo would be paying the impoundment fees and the appellant has alternatives to the impounded vehicle.

There is no merit to the appeal

22I find that the circumstances of the vehicle’s impoundment do not open any of the grounds under 50.2(3) to the appellant’s appeal.

23Because the appellant relinquished control of the vehicle to the renter, and the renter lent the vehicle to the driver, the stolen ground cannot be used. Under s. 50.2(3)(a), the Tribunal has found that the Divisional Court’s decision in Marshall v. Ontario Registrar of Motor Vehicles, [2002] O.J. No. 745 (“Marshall”) the test for stolen is whether a) the vehicle was taken without the owner’s consent, and b) that the perpetrator intended to deprive the owner of it either permanently or temporarily. In this case the vehicle was in the possession of and under control of the renter, with the consent of the appellant, and the renter permitted the driver to use it. There is no evidence to indicate that the driver intended to deprive the appellant of the vehicle, even temporarily. Accordingly, the ground that vehicle was stolen cannot be used as a basis for the appeal.

24The due diligence ground in s. 50.2(3)(c) cannot be relied on. The Tribunal has found, such as in Walia v. Registrar of Motor Vehicles, 2023 CanLII 47529 (“Walia”), that the due diligence ground is only available to a vehicle owner if they had taken steps to assess the validity of the driver’s licence prior to permitting the use of it. In Walia, at paragraph 15, Adjudicator Hans found that the language of the due diligence ground indicates it applies only to circumstances where the driver who was driving at the time of the impoundment is someone the owner permitted to drive after taking efforts to establish the validity of their licence. The defence is not available to an appellant where there is a further degree of separation (e.g. the renter lets someone else drive the appellant’s car). I am not bound by previous Tribunal decisions but in this case, I find Walia is relevant and applicable. The appellant submitted that he had no knowledge of the driver and therefore, no opportunity to take efforts to determine the validity of his licence. The due diligence ground is therefore not available to him.

25The exceptional hardship ground, s. 50.2(3)(d), cannot be relied on. It is a high test to meet in the Regulation and relies, at a minimum, on there being no alternative means of transportation available to the appellant while the vehicle is impounded. Financial hardship can only be considered if there are no alternatives. The appellant submits that he has alternatives to the impounded vehicle for his own household and work needs. Since he admits to having alternatives, the exceptional hardship ground could not be relied on to succeed in his appeal.

26The other grounds, in s. 50.2(3)(b) and (b.1), relate to whether the driver’s licence was not under suspension at the time the vehicle was apprehended and detained. The respondent submitted that the driver’s licence was under suspension for a Criminal Code-related driving offence, a fact that was unrefuted by the appellant.

27Because none of the grounds in 50.2(3) are available to him, I find there is no merit to the appeal, and the justice of the case in relation to this factor does not compel an extension of time.

Intention to appeal within the appeal period

28I find the appellant genuinely intended to appeal the impoundment on time.

29The appellant intended to appeal the impoundment and took immediate steps to commence the process, but his efforts were stymied and delayed by the expectation or understanding that Turo had a role in the process, and in receiving the NTR (and the necessary appeal information) 11 days after the vehicle was detained for impoundment.

30I acknowledge that navigating the process of a vehicle impoundment for most, if not all vehicle owners, is unfamiliar, unexpected, and upsetting and the appellant’s situation was further complicated by delays and missing information from the police detachment and his fruitless efforts to determine what role the rental platform Turo had in retrieving the impounded vehicle.

31I find the justice of the case, in relation to the appellant’s genuine intention to appeal, suggests an extension of the time limit could be considered.

Length of Delay

32I find the four-day delay in filing the appeal to be neutral in terms of compelling an extension of the time limit. Although a four-day extension, on top of the 17 days the appellant had within the statutory limit, is not materially significant, the justice of the case must consider what time the appellant did have to file his appeal, and what actions he took, or failed to take, during that time.

33I take note of the fact that the appellant had a copy of the NTR six days prior to the 15-day limit expiring on November 20, 2023. He had the opportunity, using the information on the back of the NTR, to contact the Tribunal or the Ministry of Transportation (“MTO”), to learn more about how to appeal the impoundment.

34The appellant submitted that he did not receive the Notice of Impoundment (“NOI”) from the MTO, a notice which also informs the 15-day statutory limit for appeals. The respondent noted the NOI was dated November 14, 2023 and did not make submissions on the subject of it not being received.

35The appellant submitted that he first received information about and a link to the Tribunal, from Turo, on November 21, 2023, three days after the 15-day deadline had been reached. He filed his appeal three days later, on November 24, 2023.

36I find the appellant had the time (six days) and the information he needed to appeal the impoundment within the statutory limit. Consulting the back page of NTR would have given him the information to contact the MTO or the Tribunal and become aware of the 15-day time limit to file his appeal, information that could have underlined urgency of filing his appeal.

37I find the length of delay to be relatively insignificant on its own but taken together with six days the appellant had to file on time, I am not convinced that the appellant’s intention to appeal was met with equal attention to learning what he needed to do to appeal. He knew the vehicle was detained on November 6th; he gave up trying to work through Turo for its release on November 14th but didn’t read the detail on the NTR. It’s inconsistent with what appears to have been a genuine intention to appeal.

38Accordingly, I find the length of delay as a factor in considering the justice of the case for an extension to be uncompelling.

39Taking all four factors into consideration, I find that the justice of this case is not served by granting an extension. Potential prejudice to the respondent should not prevent an extension, but the length of delay is unconvincing in meriting an extension.

40Although the appellant intended to appeal within the time limit, and there would be minimal, if any, prejudice to the respondent if an extension were granted, the fact that there is no merit to the appeal persuades me that conducting a hearing would be without purpose. The justice of the case would not be served by holding one.

41For these reasons, I find the justice of the case is not served by granting an extension.

ORDER

1The extension to the time limit to appeal the impoundment pursuant to s. 9 of the Regulation is denied.

2Since the appeal under s. 55.1 of the HTA was not commenced within the 15-day limit, pursuant to s. 9 of the Regulation, the appeal is dismissed.