Dilbagh Singh Walia v. Registrar of Motor Vehicles, 2023 CanLII 40111

Licence Appeal Tribunal File Number: 14845/MVIA

In the matter of 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, a Notice of Motion for an order to extend the time to file the appeal pursuant to s. 9 of Ontario Regulation 631/98.

Between:

Dilbagh Singh Walia

Appellant

and

Registrar of Motor Vehicles

Respondent

MOTION ORDER

ADJUDICATOR: Bruce Stanton

APPEARANCES:

For the Appellant: Dilbagh Singh Walia, Appellant Gurtek (Gary) Walia, son of appellant

For the Respondent: Ian Sookram, Agent

Heard by Teleconference: May 10, 2023

OVERVIEW

1Mr. Dilbagh Walia (the "appellant") appeals the impoundment of his 2016 Toyota Rav 4 under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "HTA") on April 5, 2023 when the driver of the vehicle, Sam Romaine Ropon, was found to be driving it while his licence was suspended due to a prescribed Criminal Code conviction.

2On consent, the appellant was represented by his son, Gary Walia, for the purposes of the motion hearing. Mr. Dilbagh Walia was present during the proceeding.

3The appellant filed a Notice of Appeal with the Tribunal on April 25, 2023, 5 days after the end of the 15-day appeal period prescribed by Section 9 of Ontario Regulation 631/98 (the "Regulation").

4The appellant also filed a Notice of Motion on April 25, 2023, seeking an order that the Tribunal grant an extension of the time limit so that his appeal may be heard.

5The hearing on the motion was scheduled to occur at the commencement of the proceeding scheduled for today. If, after hearing the parties' submissions on the motion, I grant the extension, the hearing on the appeal would proceed immediately following that determination at today's proceeding.

ISSUE

6Should the Tribunal grant an extension of time to allow the appellant to appeal outside of the legislated timeline?

RESULT

7The extension is granted, and the appeal may proceed.

8The hearing on the appeal is adjourned and a resumption of the hearing will commence on May 18, 2023 at 9:30 a.m.

ANALYSIS

Motion to extend the time for appeal

9The Regulation provides that an appeal under s. 50.2 of the HTA must be filed with the Tribunal no later than 15 days after the date of a motor vehicle impoundment. The appellant did not file his appeal until 20 days after the impoundment. For his appeal to be heard, I must first decide if an extension to the time limit should be granted.

10Under s. 7 of the Licence Appeal Tribunal Act, 1999, the Tribunal may extend a time limitation under the HTA or Regulation to file an appeal if the Tribunal is satisfied there are reasonable grounds for doing so.

11The grounds for considering an extension are articulated in Manuel v. Registrar of Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492. On a motion to extend the time to appeal, the Court determined that the overriding consideration is whether the justice of the case requires that an extension be granted. The factors to consider in deciding the justice of the case are:

• prejudice to the other party,
• the merits of the appeal,
• a genuine intention to appeal within the appeal period, and
• the length of the delay.

12The 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.

13Having considered the parties' submissions on the motion, I conclude that the justice of the case requires an extension of the time limit for the following reasons.

Prejudice to the other party

14The respondent submitted that an extension of the time limit would only prejudice the respondent to the extent of the additional days of impoundment fee arising from the extension, at an average of $80 to $100 per day. The respondent submits that the prejudice only arises if the appellant's appeal is successful. Only if the Tribunal orders the vehicle released is the Registrar responsible to pay the impoundment fee. With an extension of five days, the value of prejudice to the respondent could likely not exceed $500.00.

15I find there is little prejudice to the respondent in granting the extension.

Merits of the Appeal

16To consider the justice of the case for an extension of the time limit based on the merits of the appeal, I must only be satisfied that there is some merit to the appeal, based on the evidence before me. This is not an exercise in prejudging the hearing outcome.

17Of the five possible grounds for the appeal of an impoundment under s. 50.2 of the HTA, the appellant did not state which ground he is relying on. At the motion hearing, the appellant's representative stated that the impoundment was resulting in financial loss from missed rentals through Turo, a rental app, and higher costs from using Uber for household needs. He submitted that he lives with his elderly father (the appellant) and mother. His mother has health needs that requires the family car regularly. The impounded vehicle is the family's only vehicle. The appellant's representative stated he is currently not working, receiving Ontario Works benefits, and that his parents have only a small pension income with which to meet financial obligations.

18The appellant could appeal on the ground of exceptional hardship, s. 50(3)(d), if the family has no alternatives to the impounded vehicle. However, the appellant stated they are using alternatives, such as Uber, during the impound period. Since they have alternatives, exceptional hardship is not available as a ground for appeal.

19The driver of the vehicle at the time it was impounded was not authorized to be driving it. The appellant had rented his car through the private rental app, Turo, to a driver who met all the requirements to be a renter (guest) under the Turo service. The renter provided the appellant with his driver's licence at the time of pick-up. The appellant took a photo of the driver licence and uploaded it to the app, as required. The appellant's representative submitted that all renters (guests) on the Turo app are pre-vetted to ensure they have driving privileges.

20The appellant could appeal the impoundment on the ground that he exercised due diligence in attempting to determine that the person he was permitting to use his vehicle, had driving privileges, s. 50.2(3)(c). The appellant's representative stated that only the renter (guest) in the Turo program is authorized to be driving the subject vehicle. Others are prohibited from doing so. However, it was not the renter who was driving the vehicle at the time it was detained.

21Since the renter appears to have lent the vehicle to the driver at the time of the impoundment, in contravention of the rules of the rental arrangement, the appellant could have a ground for appeal under s. 50.2(3)(c), i.e. that he exercised due diligence.

22I find there is some merit in the appeal, based on the evidence before me.

Intention to appeal within the appeal period

23The appellant's representative submitted that he only became aware that the impoundment could be appealed on April 14, nine days after the impoundment. He had contacted the OPP in Port Elgin, the detachment region where the vehicle was detained for impoundment. Only then did he receive a copy of the Notice to Registrar ("NTR") which included the appeal information on page 2 of the form.

24The appellant began the following day, April 15th, to gather more information with the intention of appealing the impoundment. The appellant called Turo, believing they could be a source of assistance in the appeal, but after several calls over two days, the appellant decided to contact the Tribunal directly on April 19, 2023 to launch the appeal. By April 19th, there was only one day remaining in the 15-day period.

25I find the appellant intended to appeal the impoundment within the legislated timeline.

Length of Delay

26The driver of a vehicle detained for impoundment usually receives, on the day they are pulled over by police, an NTR containing all the information needed to commence an appeal. Because of the rental arrangement, the appellant did not become aware of the impoundment until April 7, 2023, two days after it was detained. As discussed above, the appellant did not become aware he could appeal, or get a copy of the NTR, until April 14th, nine days after the impoundment.

27Considering that nine days passed before the appellant became aware he could appeal, and before he had the information to appeal, I find that extending the time limit by five days to allow his appeal, is reasonable and justified.

28I find that the justice of this case requires that an extension be granted because there is little prejudice to the other party, there is merit to the appeal, the appellant intended to make the appeal in accordance with the Regulation, and the five-day delay in filing the appeal is reasonable, considering the appellant did not have access to appeal information for nine days after the impoundment.

ADJOURNMENT

29The hearing is adjourned and will resume on Thursday, May 18, 2023 at 9:30 a.m.

30The respondent submitted that the appellant may meet the criteria set out in s. 1.1 of the Regulation which provides for an early release of an impounded vehicle if it is the subject of a rental agreement, among other criteria.

31The parties sought to adjourn today's proceeding to provide time to investigate whether the criteria in s. 1.1 of the Regulation can be met.

32The adjournment is granted.

ORDER

33The extension to the time limit to appeal the impoundment pursuant to s. 9 of the Regulation is granted.

34The hearing is adjourned and will be resumed on Thursday, May 18, 2023 at 9:30 a.m. The Tribunal will contact the parties to provide the call information.

35The appellant will serve notice on the respondent and the tribunal as to which ground of appeal in s. 50.2(3) he intends to rely on.

36I am not seized of this matter.

LICENCE APPEAL TRIBUNAL

Bruce Stanton Adjudicator