Tika Sookdeo v. Registrar of Motor Vehicles, 2023 CanLII 1471

Date: 2023-01-09

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:

Tika Sookdeo

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Colin Osterberg, Member

APPEARANCES:

For the Appellant: Tika Sookdeo, Self-represented

For the Respondent: Leila Pereira, Agent

Heard by Teleconference: January 5, 2023

REASONS FOR DECISION AND ORDER

OVERVIEW

1Tika Sookdeo (the "appellant") seeks to appeal the impoundment of his 2018 Ford motor vehicle under section 55.1 of the Highway Traffic Act (the "Act”).

2The appellant's vehicle was impounded on December 6, 2022, when it was stopped by the police and the appellant’s son, Neel Sookdeo, was found to be driving it while his licence was under suspension. The period of impoundment is 90 days and expires March 6, 2023.

3The appeal was filed on December 24, 2022, which is the 18th day after the impoundment. Section 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 this motion to extend the time for filing his appeal.

4For the reasons given below, I find that the justice of this case does not warrant an extension of the time for filing the appeal. The appellant’s motion is therefore denied.

ANALYSIS

5Section 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.

6In 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.

7I have considered the evidence relating to each of these factors as they apply to this case.

Bona fide intention to appeal within the appeal period

8I find that the appellant did not have a bona fide intention to appeal within the appeal period.

9The appellant testified that on December 23, 2022, the 17^th^ day following the impoundment, he received a letter from the Ministry of Transportation (“MTO”) which included instructions with respect to how to appeal the impoundment. Until then, the appellant says he did not know that an impoundment could be appealed. He sent his Notice of Appeal to the Tribunal the next day, December 24, 2022.

10I do not accept the appellant’s evidence that he was unaware of his right to appeal the impoundment during the appeal period. The appellant says that vehicles owned by him have been impounded between three and five times prior to this occasion and that he has received letters from the MTO after each impoundment. Those letters would have contained information about how to appeal an impoundment.

11In any event, the appellant evidence, which I accept, is that he did not intend to appeal the impoundment within the 15-day appeal period. This is a factor that weighs against an extension of the appeal period.

12The significance of this factor may be mitigated in cases involving a first impoundment, but in this case there had been several, and the appellant had been given notice of his right to appeal several times. His lack of intention to appeal within the appeal period will be given more weight in the circumstances.

13I am not satisfied that the appellant has established, in the circumstances, a bona fide intention to appeal within the appeal period. Rather, I find that he did not form the intention to appeal until after the appeal period ended.

Length of the delay

14I find the delay to be significant in this case. I am not satisfied that the appellant has presented a reasonable justification for the delay or the length of the delay.

15Although the appeal was filed 3 days after the appeal period expired, the appellant’s evidence is that he knew about the impoundment the day that it occurred. Although 3 days may not be significant in circumstances where it is reasonable that the appellant is not aware of the appeal period or his right of appeal, I find that it is significant where, as in this case, the appellant has notice of the appeal period at an early stage and failed to appeal within that period.

16I find that the appellant’s delay in filing his appeal is significant and that he presented no reasonable excuse for failing to commence the appeal before he did.

Prejudice

17The 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. However, given that there is only a three-day delay in this case, I am not satisfied that there has been significant prejudice to the Registrar. I give little weight to this factor.

The merits of the appeal

18On a motion to extend time, the appellant need not establish his case on a balance of probabilities but only that his version of events, if believed, could reasonably result in a favourable outcome. I am not satisfied that the appellant has met this relatively low standard.

19The appellant appeals on the ground that the vehicle was stolen at the time it was detained for the purpose of impoundment. He says that his son, who was the driver of the vehicle when it was impounded, suffers from substance abuse disorder and had taken the vehicle without permission many times in the past. The appellant says that he is not certain how many times before the current impoundment his son drove his vehicle without permission, but he does not think that would have happened every day. The evidence is clear that this was a regular occurrence.

20The appellant also says that it has only been since this most recent impoundment that he began taking active steps to try and prevent his son from having access to the vehicle. Those steps have included hiding his car keys when the appellant is not home and renovating his home so that there is a locked door between the basement where his son lives and the main floor where the appellant lives. Although the appellant says he told his son not to use the vehicle in the past, his son continued to do so on a regular basis without any action being taken by the appellant to prevent it from happening.

21Although it is possible that the facts described by the appellant may result in a finding that the vehicle was stolen, given that his son was using the vehicle on a regular basis and the appellant took steps to prevent him from doing so only after the most recent impoundment, in my view the appellant’s chances of success are low. It is more likely that the appellant’s version of events, if believed, would not result in a finding that the vehicle was stolen when it was detained for the purpose of impounding it.

22In summary: I find that the appellant has failed to demonstrate that he had a bona fide intention to appeal within the appeal period; I find that his delay in filing the appeal is significant, and unreasonable; I find that the delay will result in minimal prejudice to the Registrar; and I find that there is little likelihood that the appeal, if allowed to proceed, would be successful on its merits.

23I find that the justice of the case requires that the request for an extension be denied. The purpose of s. 50.2 of the Act is to provide vehicle owners with a limited opportunity of appeal and the Act specifically limits the time within which an appeal may be brought. Although the Tribunal may extend that time where the justice of the case requires it, I am not satisfied that this is a case where the Tribunal’s discretion to do so should be exercised.

ORDER

24For the reasons set out above, the appellant’s motion to extend the time for filing his appeal is denied.