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 of that Act
Between:
Kyle Archibald Masters
Appellant
and
Registrar of Motor Vehicles
Respondent
REASONS FOR MOTION DECISION
Adjudicator: Katherine Livingstone, Member
Appearances:
For the Appellant: Self-represented
For the Respondent: A. Sookhoo, agent
Heard by teleconference: March 28, 2023
Background
1On December 20, 2022, the appellant’s vehicle was detained and impounded pursuant to section 55.1 of the Highway Traffic Act R.S.O. 1990, c. H. 8 (the “Act”), after being driven by the appellant while his licence was suspended for a criminal code related reason. The appellant filed a Notice of Appeal on March 15, 2023.
2The appellant then brought a motion to extend the time for filing his appeal and a date for hearing the motion was set for March 28, 2023.
Result
3On April 6, 2023, I dismissed the appellant’s motion and advised my reasons would be forthcoming. The following are those reasons:
Law and Analysis
4Pursuant to s. 9 of O. Reg. 631/98 (the “Regulation”) issued under the Act, an appeal of a long-term impoundment is required to be filed within 15 days after the day the vehicle was detained.
5The Tribunal has jurisdiction to extend the time for filing of an appeal pursuant to s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Schedule G, which reads:
Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal under section11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,
a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and
b) give the directions that it considers proper as a result of extending the time.
6Determining whether there are reasonable grounds for an extension is not an exact formula. Pursuant to Manuel v. Registrar, Motor Vehicles Dealers Act 2002, 2012 ONSC 1492 (Div. Ct.), the Tribunal must consider the following factors in determining whether there are reasonable grounds to grant an extension of time:
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.
7The 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.
8The onus is on the appellant to establish that there are reasonable grounds for granting the extension.
a) Bona Fide Intention to Appeal within the Appeal Period
9The appellant testified that at the time of the impoundment on December 22, 2022 he was experiencing significant financial difficulty. He had lost his job because of the COVID-19 pandemic and “restructuring.” This resulted in him living in his car and moving it from parking lot to parking lot.
10On the day his vehicle was detained and impounded the appellant testified he was told by the police officer his car would be impounded for 180 days and there was “nothing I could do to get it out before that” and there was “nothing I could do to appeal it.” He said the officer later phoned him to say the impoundment was for 90 days. The towing company paperwork also noted it was for 90 days. The notice of impoundment filed by the appellant gave a release date of June 18, 2023. The Notice to Registrar filed by the police was for a minimum impoundment period of 45 days, ending on February 3, 2023.
11The appellant said he was not given documentation outlining how he could commence an appeal and was unaware of the appeal process until he spoke to a lawyer on March 13, 2023. He said it was only after speaking with the lawyer that he proceeded with the appeal but said he would have done so after being stopped had he been aware of the appeal process.
12His notice of appeal indicated “I was recently homeless for a period of time and when I was able to gain shelter, I seeked (sic) out legal advice to find out the process of requesting an appeal, hence the delay in the appeal process.” The statement seems to imply the appellant knew he could appeal however, was unsure of the process. Additionally, the appellant testified he could not afford the filing fee until recently.
13The appellant admitted to having his car impounded on a previous occasion but said he had not received documents on how to appeal at the time either and never thought about appealing that impoundment.
14While the documents the appellant received produced some confusion about the details around the period of impoundment, this did not affect the period the appellant had to appeal, that is 15 days. There was no evidence the appellant took any steps during that 15-day period to inform himself of what steps he could take to appeal the impoundment. Rather it was only after speaking with a lawyer in March that he took any action.
15Although the appellant was consistent in his evidence that he would have appealed immediately had he known the process, I am left with doubt. I find there is insufficient evidence he had a good faith intention to appeal within the appeal period.
b) The length of the delay
16The appellant’s notice of appeal was filed almost three months after the 15-day period specified in s. 9 of the Regulation. This is obviously a significant delay.
Prejudice to the other party
17If an extension of the time to file was granted, it may result in prejudice to the respondent. This is because if the appellant was successful on the appeal, the respondent would be responsible for the cost of the impoundment. If the appeal had been heard earlier, the financial burden on the respondent would likely be lessened. This factor weighs against granting an extension of time.
The merits of the appeal
18On a motion to extend time, the appellant need not establish their case on a balance of probabilities but only that their version of events, if believed, could result in the impoundment being overturned. The appellant appeals based on exceptional hardship arising from financial considerations While acknowledging the low threshold for satisfying this ground of appeal, I find the merits of his appeal to be very weak.
19The evidence filed by the respondent disclosed the appellant owned and was the driver of the impounded vehicle and his licence was suspended at the time because of a conviction of impaired driving in May 2022.
20Section 10 of Regulation 631/98 of the HTA sets out the requirements that must be met to show the impoundment will result in exceptional hardship.
21Section 10 (1) of the Regulation, requires me to consider whether “no alternative to the impounded motor vehicle is available.”
22Section 10(4) sets out what the appellant must show to meet this initial prong of the test:
(4) In order to show that no alternative to the impounded motor vehicle is available… the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.
23The appellant did not offer any evidence to demonstrate he had no alternative to the impounded motor vehicle. Due to absence of such evidence, his appeal on the grounds of exceptional hardship would fail.
24However, even if there had been evidence in that regard, the appellant would not likely have been successful. The appellant’s argument for exceptional hardship was founded in terms of the financial burden the impoundment was having on him. The vehicle has an outstanding loan and the cost of the impoundment will be a “significant and lasting financial hardship” and may result in the appellant “having no other option but to file for bankruptcy.”
25Section 10 (2) and (3) of the Regulation set out the criteria I may consider and other criteria that I may not consider when determining whether an impoundment will result in exceptional hardship. Specifically, and applicable in the appellant’s case, per s.10(3) (d) (ii), I may not consider financial or economic loss to the owner/appellant if they are the suspended driver. As a result, even if there was evidence the appellant had no other means of transportation, his appeal on the grounds of exceptional hardship based on economic hardship would fail.
26In summary, I am not satisfied the appellant had the bona fide intention to appeal within the 15-day appeal period. I find his delay in appealing is quite significant and resulted in prejudice to the respondent. Most importantly, I find there is little, if any, merit to his appeal, as there was no evidence he did not have alternative transportation and even it there was such evidence, the fact he is the suspended driver means I cannot consider any financial or economic loss arising from the impoundment.
27I conclude the appellant has failed to establish reasonable grounds for an extension of time to file his appeal. The justice of case requires the requested extension be denied.
ORDER
28The appellant’s motion to extend the time to file his appeal is denied. The Tribunal file will be closed.
LICENCE APPEAL TRIBUNAL
____________________________
Katherine Livingstone, Member
Released: April 24, 2023