Motion for an Order to Extend the time to file an Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment Pursuant to section 55.1 of the Act.
Between:
Jeffrey July
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Stephen Scharbach, Member
APPEARANCES:
For the Appellant: Jeffrey July, Self-Represented
For the Respondent: Leila Pereira, Agent
Heard by Teleconference: February 9, 2023
OVERVIEW
1Mr. Jeffrey July (“appellant”) appeals the impoundment of his 2018 Hyundai (“vehicle”).
2It was impounded under the Highway Traffic Act (“Act”) on December 31, 2022, when police discovered it being driven by a driver (not the appellant) whose licence was under suspension for a previous drinking and driving offence.
3The appellant’s sole ground of appeal is that the impoundment will result in exceptional hardship.
4The appellant filed his notice of appeal after the expiry of the 15-day appeal deadline. The Tribunal may extend that deadline in appropriate circumstances and the appellant requested that the Tribunal do so in this case.
5This case thus raises two main issues:
- Should the appeal deadline be extended to allow the appeal to be filed and heard by the Tribunal?
- Assuming the appeal deadline is extended, will the impoundment result in exceptional hardship as that term is used in the Act and the applicable regulation?
6For the reasons set out below, on the first issue I determine that the appeal deadline should be extended, and the appeal should be heard on its merits.
7On the second issue I conclude that the impoundment will not result in exceptional hardship under the Act and the regulation, and I have therefore confirmed the impoundment.
ANALYSIS
(a) Motion to Extend Deadline to Appeal
8Ontario Regulation 631/98, s. 9 under the Act (“regulation”) provides that an appeal of an impoundment shall be commenced by filing with the Tribunal a notice of appeal within 15 days of the day the vehicle was detained.
9In his case, the vehicle was impounded on December 31, 2022. The appeal deadline was January 15, 2023, and the appellant filed his appeal on January 31, 2023, 16 days after the deadline.
10Under Licence Appeal Tribunal Act, s. 7, the Tribunal may extend the deadline if the Tribunal is satisfied that there are “reasonable grounds” for doing so.
11According to the Divisional Court in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492, 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:
- prejudice to the other party,
- the merits of the appeal,
- a genuine intention to appeal within the appeal period, and
- length of the delay.
12Taking those factors into account, I conclude that the justice of the case requires an extension of the appeal deadline for the following reasons.
13Firstly, there is no evidence that extending the appeal deadline will prejudice the Registrar.
14Secondly, with respect to the merits of the appeal, I conclude the appellant has an arguable case. His sole ground of appeal is that the impoundment will cause exceptional hardship. That hardship is financial and is limited to the financial loss he will incur to pay the impoundment fees to retrieve his vehicle.
15The appellant is a single father supporting two children, one of whom resides with him. He is employed but has significant debt and on-going expenses which make it difficult for him to absorb the cost of the impoundment. He intends to argue that in his circumstances the difficulty caused by this unexpected and unwelcome expense amounts to exceptional hardship.
16It is not the Tribunal’s function at this point to determine the strength of the appellant’s appeal. At this point the appellant must show only that his appeal has some merit, and in this case, I conclude that the appellant has met that relatively low test.
17With respect to the third and fourth factors - the appellant’s intention to appeal and the length of the delay – I conclude that the delay in filing an appeal was because the appellant was unaware that his vehicle had been impounded. He did not receive written notice of the impoundment until Friday, January 27, 2023. Once he received that notice and learned that he had a right to appeal, he promptly filed his appeal on Tuesday January 31, 2023.
18By way of context, the appellant loaned his vehicle to his ex-girlfriend, and she apparently allowed a person with a suspended licence to drive it. The vehicle was impounded for 45 days when the police discovered it being operated by him.
19The police are required to provide the driver at the roadside with a written notice of impoundment that contains information about the right to appeal. That notice was presumably given to the driver in this case. However, neither the driver nor the ex-girlfriend informed the appellant of the impoundment. The appellant first learned of it on January 27, 2023, when he received the notice routinely sent by the MTO by mail to the registered owner after the impoundment.
20In summary, on a review of the relevant factors, I find that:
- the appellant did not appeal the impoundment within the 15-day time period because he was unaware of the impoundment, his right to appeal, or the 15-day deadline until January 27, 2023, after the deadline had passed;
- the appellant commenced his appeal without delay after he received the MTO’s notice;
- the appellant has at least an arguable ground for appealing the impoundment; and
- there is no prejudice to the Registrar.
21I conclude that the justice of the case supports extension of the deadline.
22As a result, I extend the deadline to appeal and my decision on the merits of the appeal are set out below.
(b) Merits of the Appeal – Exceptional Hardship
23The appellant’s sole ground of appeal is that the impoundment will result in “exceptional hardship”. The onus is on the appellant to demonstrate this ground appeal on a balance of probabilities.
24For the reasons set out below, I conclude that the impoundment will not result in exceptional hardship as that term is used and limited in the Act and regulation.
25The regulation sets out the matters that I must consider in determining whether an impoundment will result in exceptional hardship.
26In summary, the regulation requires that:
a. the Tribunal must first consider whether an alternative to the impounded vehicle is available. To show that no alternative is available, the owner must demonstrate that every other reasonable option has been considered, including using another vehicle or making arrangements to do without the vehicle during the impound period.
b. If no alternative is available, the Tribunal is required to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle.
c. The Tribunal may only consider financial loss if the owner demonstrates that:
i. No alternative to the impounded vehicle is available; ii. The loss will be immediate, significant and lasting; iii. The impact of the loss will be on a person ordinarily transported by the vehicle; and iv. The impact of the loss will be on a person other than the suspended driver.
27Firstly, the appellant has an alternative to the impounded vehicle. The impounded vehicle is not the appellant’s primary vehicle. He owns a plated and operational primary vehicle that is adequate for his immediate transportation needs including getting to work, running errands, and attending to household requirements.
28The impounded vehicle is a secondary vehicle which the appellant loaned to his ex-girlfriend in March 2022. She was in possession of it until it was impounded on December 31, 2022. The impounded vehicle had not been used by the appellant for several months and during that time his transportation needs were being met by his primary vehicle. The impoundment did not change that. In these circumstances, I conclude that the appellant has an alternative to the impounded vehicle.
29Secondly, the appellant did not allege that the impoundment has resulted in a threat to the health and safety of any person, or that essential tasks such a getting medications or attending health care/medical appointments have been disrupted because of the impoundment.
30Thirdly, the hardship that the appellant will experience because of the impoundment is exclusively financial and is limited to the cost of the impound fees. The appellant estimates that cost will be $2,100.
31As noted above, in determining whether the impoundment will result in “exceptional hardship”, the regulation prohibits me from considering financial loss if there is an alternative available to the impounded vehicle. In this case there is an alternative and I am therefore precluded from considering the appellant’s financial loss in determining whether the impoundment will result in exceptional hardship.
32In summary, the appellant has not met the onus of establishing that the impoundment will result in exceptional hardship as that term is defined and limited by the Act and regulation. I therefore confirm the impoundment.
ORDER
33The appeal deadline is extended to January 31, 2023.
34Pursuant to s.50.2(5) of the Highway Traffic Act, I confirm the impoundment of the appellant’s vehicle.
LICENCE APPEAL TRIBUNAL
________________________
Stephen Scharbach, Member
Released: February 14, 2023