Date: 01-04-2023

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 that Act

Between:

Colleen Cotter

Appellant

and

Registrar of Motor Vehicles

Respondent

MOTION ORDER

ADJUDICATOR: Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant: Colleen Cotter, Self-Represented

For the Respondent: Stella Velocci, Agent

Heard by Teleconference: December 22, 2022

ORDER ON MOTION

BACKGROUND

1Colleen Cotter (the “appellant”) filed a motion for an order granting an extension of time for the appellant to file an appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“Act”) from the impoundment of her 2013 Ford (the “vehicle”) for 45 days on November 20, 2022 by the Registrar of Motor Vehicles (the “respondent”). At the time the vehicle was detained in order to be impounded it was being driven by a person who did not have a valid driver’s licence.

2The appellant’s Notice of Motion did not set out any reason why the time for her appeal should be extended.

3The respondent opposed motion for extension of time on the basis that the length of delay is substantial, and the appellant did not act in good faith in trying to comply with the legislated time to appeal.

issue

4The issue to be addressed in this motion is whether the Tribunal should extend the time for the appellant to file her appeal.

RESULT

5The appellant’s motion to extend the time to file her appeal is denied. The appeal shall not proceed.

LAW AND ANALYSIS:

Should the Tribunal extend the time for the appellant to file her appeal?

6Section 9 of O. Reg. 631/98, entitled “Long-Term Vehicle Impoundment Under Section 55.1 of the Act”, states that an appeal of an impoundment under s. 55.1 of the Act must be filed within 15 days of the impoundment.

7The appellant’s motion is to extend the time for filing her appeal. Pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G the Tribunal may extend the time to file an appeal if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief.

8To be successful on this motion the appellant must show that there are reasonable grounds for the extension and for the granting an extension of time. The Tribunal must weigh the following factors as set out in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.) when deciding whether to grant an extension of time to file an appeal:

1. The existence of a bona fide (good faith) intention to appeal [within the appeal period];

2. The length of the delay;

3. Prejudice to the other party; and

4. The merits of the appeal.

9The Divisional Court determined that the factors to be considered are a guide to assist in determining the justice of the case.

10I will consider these factors below in light of the evidence of the appellant and her submissions at the hearing.

(i) Bona fide (good faith) intention to appeal within the appeal period

11In her testimony at this hearing the appellant said that she was aware of the impoundment of her vehicle on the day it occurred, specifically November 20, 2022, was aware of the right to appeal three or four days later when she received a paper about the impoundment and that she called the Licence Appeal Tribunal to find out how to appeal. The appellant testified her reason for not filing her appeal on time was because she had trouble with her email and had to get her neighbour to help her set up a new email address. The appellant said she was not sure when the new email was set up but believes it was December 9 or 10^th^.

12The appellants undated and unsigned Notice of Appeal and Notice of Motion to extend the time to appeal were sent to the Tribunal on December 12, 2022.

13Although the Notice of Appeal does not indicate a ground of appeal and does not give any reasons for the appeal, the appellant testified that her ground of appeal is that the impoundment will result in exceptional hardship. The appellant testified that she needs to have her vehicle to run errands for her mother, do her own banking and visit her husband who is in a nursing home.

14I find that there is insufficient evidence that the appellant had a good faith intention to appeal within the appeal period.

15The appellant knew of the impoundment and her right to appeal within the first week after the impoundment but did not file her Notice of Appeal and Notice of Motion until December 12, 2022. Both the Notice of Appeal and the Notice of Motion are not signed by the appellant or dated and do not set out reasons for the appeal or the motion. While the appellant says she was having trouble with her email and had to get a neighbour to help set up a new email, there is no proof of this and no one other than the appellant testified at this hearing. Even if this is true, trouble with her email is no reason not to file the appeal within the legislated deadline. The contact with the Tribunal staff is not evidence of an intention to appeal but is evidence of a general inquiry.

16Before me there is no documentary or other corroborating evidence that the appellant had a genuine intention to appeal prior to the expiration of the legislated deadline.

(ii) Length of the delay

17The appellant’s Notice of Appeal is undated but was received at the Tribunal together with her Notice of Motion to extend the time for filing on December 12, 2022, some seven days late.

18I find there has been substantial delay. The appellant was aware of the impoundment at the time it happened and of her appeal rights shortly thereafter. The appellant should have known or been able to make herself aware of her time-limited right of appeal and file her appeal within the legislated deadline. Email is only one method of filing an appeal with the Tribunal. There is no evidence that the appellant attempted to file her appeal on time with any other means of communication.

19However, this is only one of the factors to be considered on the motion.

(iii) Prejudice to the other party

20I agree with the respondent’s submission that the appellant did not file her appeal until some 22 days after the impoundment and 7 days after the expiry of the appeal period. It is clear that the respondent would be prejudiced if the motion was granted because if the appeal goes forward and is successful, the respondent will likely be required to pay greater impoundment fees than if the appeal had been filed within the legislative time.

(iv) Merits of the appeal

21The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Act may, pursuant to s. 50.2, appeal the impoundment. An owner may appeal only on the grounds set out in s. 50.2 (3), (a), (b), (c) and (d) of the Act. Here the appellant confirmed at this hearing that her sole ground of appeal is under s. 50.2(3)(d), specifically that the impoundment will result in exceptional hardship.

22While the bar is low under this heading, it appears that the appeal is unlikely to succeed on the merits, even if the time to appeal is extended, because the appellant has been able to cope with the loss of her vehicle for a substantial portion of the impoundment period. The impoundment period ends on January 4, 2022. Based on the appellant’s testimony, it appears that the only hardship the appellant has experienced is that to date she has been unable to run errands for her mother, could not visit her husband, or attend at her bank in person. It is unlikely that this would meet the legislated test for “exceptional hardship” which is detailed and specific.

23To succeed on a motion for an extension of the time to file an appeal, the burden is on the appellant to demonstrate reasonable grounds on which an extension of time should be granted. I find that the appellant has not demonstrated that she had a bona fide (or good faith) intention to appeal within the time for appeal and that there has been substantial delay in filing the appeal. If the appeal is allowed to proceed to a hearing, I find that there would be prejudice to the respondent and the appeal is unlikely to succeed on the merits in any event.

24As a result, I find that the appellant has failed to establish that the justice of the case requires an extension of the time for the filing of the appellant’s appeal. The appellant’s motion is denied.

ORDER:

25The appellant’s motion to extend the time to file her appeal is denied. The appeal shall not proceed.