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:
Barbara Smith
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: April 4, 2023
Background
1On February 14, 2023, the appellant’s vehicle, a 2001 Chevrolet, was detained and impounded for 45 days 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’s son while his licence was suspended for a Criminal Code related reason.
2The appellant filed a Notice of Appeal on March 13, 2023 together with a motion to extend the time of filing her appeal, as the 15-day appeal period had passed. The vehicle was released on March 31, 2023.
3The motion to extend the time for filing the appeal was heard by me on April 4, 2023.
Result
4The motion to extend the time for filing the appeal is denied.
Law and Analysis
5Pursuant 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.
6The 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 section 11 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.
7Determining 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.
8The 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.
9The 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
10The appellant testified that she had left her vehicle at her son’s residence shortly before she left for vacation out of the country in the early morning hours of February 15, 2023. Her son did not tell her before she left that he had been stopped just before 11 pm on February 14 and her vehicle impounded. In fact she said she did not know about the impoundment until her return on March 8, 2023, past the 15-day period for filing the appeal. She then took steps to learn about the appeal process but was hampered by a lack of access to a computer and technology skills. She filed the appeal 5 days after returning home.
11I found the appellant to be straightforward and credible in her evidence. I accept she was not aware of the impoundment until after the appeal period had passed. Although she did not have a bona fide intention to appeal during the appeal period due to her lack of knowledge, I find she took immediate steps on learning about the impoundment to initiate an appeal.
b) The length of the delay
12The appellant’s notice of appeal was filed 12 days after the 15-day period specified in s. 9 of the Regulation. In the circumstances I do not find this a significant delay.
c) Prejudice to the other party
13If 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.
d) The merits of the appeal
14On 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. While acknowledging the low threshold for satisfying this ground of appeal, I find the merits of her appeal to be very weak.
15Section 10 of the Regulation made under the Act sets out the requirements that must be met to show the impoundment will result in exceptional hardship.
16Section 10(1) of the Regulation requires me to consider whether “no alternative to the impounded motor vehicle is available”.
17Section 10(4) sets out what an 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.
18If this initial step of the test for exceptional hardship is not met, the appeal will fail.
19The appellant testified she owns two vehicles, including the impounded Chevrolet. She has recently moved into a residence where there is only one parking spot so immediately prior to the impoundment, the Chevrolet was parked at her son’s place, some considerable distance away. He was doing mechanical work on the Chevrolet and the appellant was driving her other vehicle, a Nissan. A few days before she went on her vacation, the Nissan developed a brake problem and she became hesitant to drive it.
20The appellant was very candid in her evidence. She said that after the impoundment, because she was reluctant to drive the Nissan, she relied on her daughter and neighbours for transportation. While she wanted to retain her independence and didn’t want asking people to drive her “to become a habit”, it was clear from her testimony that there were alternative means of transportation for her during the impoundment. So, while the lack of the Chevrolet was inconvenient given the trouble she had with the Nissan, there is little chance she would be successful in arguing exceptional hardship, if the matter went to hearing.
21In fact, the appellant admitted that after the Chevrolet was released from impoundment, she had it for a couple of days before she took it back up to her son’s place, where it was at the time of this hearing.
22To her credit, as the motion for an extension of time progressed, the appellant began to question whether she met the test for exceptional hardship. She continued with the motion though, as she wanted to see “what the result would be.”
23While it may be arguable the appellant would have had a bona fide intention to appeal within the legislated time had she known about the right to appeal, and the delay in filing was not, in the circumstances, significant, there may be some prejudice to the respondent. Most importantly though, there is little, if any, merit to her appeal, which the appellant herself seemed to recognize.
24Balancing these factors, I conclude the appellant has failed to establish reasonable grounds for an extension of time to file her appeal. The justice of case requires the requested extension be denied.
ORDER
25The appellant’s motion to extend the time to file her appeal is denied. The Tribunal file will be closed.
LICENCE APPEAL TRIBUNAL
____________________________
Katherine Livingstone, Member
Released: April 26, 2023