Appeal under section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“the Act”), from an impoundment of a motor vehicle under section 55.1 of the Act for driving while suspended;
Between:
Noah Ibgui
Appellant
and
Registrar of Motor Vehicles
Respondent
MOTION ORDER
Adjudicator: Matthew M. Létourneau, Member
Appearances:
For the Appellant: No Appearance
For the Respondent: Leila Pereira, Representative
Heard by Teleconference: February 9, 2023
ORDER
1Mr Noah Ibgui, (“appellant”) appeals to the Licence Appeal Tribunal (“the Tribunal”) regarding a decision by the Registrar to impound his vehicle pursuant s. 55.1 of the Act. The appellant is the owner of a 2021 Audi S5, which was impounded further to his being arrested on December 6, 2022. The appellant seeks to lift the impoundment pursuant to section 50.2(3)(d) of the Act and its regulation due to exceptional hardship he has experienced.
2The vehicle was impounded on December 6, 2022 when the appellant was arrested while his licence was under suspension. The Notice of Suspension and Impoundment of December 6, 2022 was filled out under the “minimum 45-day suspension”. However, this was the appellant’s second vehicle impoundment within two years, leading to a 90-day impoundment as detailed in the documentary evidence provided by the respondent. The appellant states in his Notice of Appeal that he was only told this was a 45-day impoundment and there was confusion.
3His Notice of Appeal was submitted to the Tribunal on January 26, 2023. In it, he described his arrest and set out how he understood the impoundment period to be only 45 days. He claims that he learned it was a 90-day impoundment only later and filed an appeal.
4After receiving his Notice of Appeal, the Tribunal informed the appellant that his appeal was filed outside of the 15-day deadline and required him to file a Notice of Motion requesting an order of the Tribunal to grant an extension of time to allow for the appeal to be filed outside of the prescribed timeline. The respondent stated on January 27, 2023, that it does not consent to the late filing of the appeal.
5The appellant filed a motion requesting an order to extend the time on January 28, 2023. The Notice of Motion states that the appellant was not provided with a clear and specific date of the end of his impoundment, neither by the officer arresting him, nor by letter.
6The Tribunal sent a notice on January 31, 2023 setting out the day of the motion. The notice includes a statement indicating, “if you do not attend the hearing, the Tribunal may make a decision on the motion in your absence and without further notice to you”.
7On February 9, 2023, the Tribunal held a motion hearing via telephone to consider a motion filed by the appellant. The appellant did not appear at the hearing. The respondent appeared and provided verbal submissions and documentary evidence regarding the motion.
8Before deciding the merits of the motion, I must be satisfied that I may proceed in the absence of the appellant. Section 5.2 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (SPPA) allows the Tribunal to hold an electronic (e.g. telephone) hearing. Sections 6(1) and 6(5) of the SPPA provide that a notice of hearing shall be issued to the parties and, in the case of an electronic hearing, the notice of hearing shall set out the date, time and purpose of the hearing, and that any party may request the Tribunal to hold a different format of the hearing if that party can satisfy the Tribunal that an electronic hearing is likely to cause significant prejudice to it.
9Having reviewed the Tribunal’s file, I am satisfied that the notice of hearing for this motion was sent to the appellant by email. Accordingly, I proceeded with this motion hearing.
10As it is the appellant who submitted this Notice of Motion to extend the time to file his appeal of the impoundment, the burden is on him to establish on a balance of probabilities that the Tribunal should grant him that relief. As the appellant did not appear, I have considered the documents that the appellant filed in his appeal, and gave it the weight I considered appropriate in the context of this motion. For the following reasons, I find that the appellant has not met that burden and therefore the motion is denied.
LAW
11Section 7 of the Licence Appeal Tribunal Act, 1999 grants this Tribunal the authority to extend the time to file an appeal prescribed by law. This Tribunal has consistently applied the four criteria found in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 in determining whether the justice of the case requires that an extension be granted. The four criteria are:
The existence of a bona fide intention to appeal within the appeal period;
The length of the delay;
Prejudice to the other party; and,
The merits of the appeal.
12Section 9 of Ontario Regulation 631/98 (“Regulation”) states that prescribes a 15-day deadline for the owner of an impounded vehicle to file their appeal with the Tribunal, commencing on the day after the day the vehicle was detained and impounded under s. 55.1 of the Act.
ANALYSIS
13The Notice of Appeal was filed with the Tribunal outside the 15-day deadline set out in section 9 of the Regulation. The deadline to file the Notice of Appeal commenced on December 7, 2022 and ended on December 21, 2022. As stated, the appellant filed his Notice of Appeal on January 26, 2023.
14There was no basis set out in the Notice of Appeal or the Notice of Motion that persuades me that the appellant’s delay in filing his Notice of Appeal is justified. The appellant claimed that the length of time of the impoundment was not specifically calculated and explained to him. However, that explanation is of no relevance because the language in section 9 of the Regulation is clear. The length of impoundment period does not change when the 15-day deadline for submitting a Notice of Appeal to the Tribunal begins.
RESULT
15The appeal is out of time. I am not persuaded that the justice of the case warrants that an extension be granted and I order the motion to extend the timeline to be denied.
LICENCE APPEAL TRIBUNAL
_________________________
Matthew M. Létourneau,
Member
Released: February 28, 2023