Tammie Doran v. Registrar of Motor Vehicles, 2023 CanLII 40127

Date: 2023-05-11

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:

Tammie Doran Appellant

and

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

Adjudicator: Katherine Livingstone, Member

Appearances:

For the Appellant: S. Rinella, agent For the Respondent: L. Pereira, agent

Heard by teleconference: April 4 and 11, 2023

Background

1On March 2, 2023, 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 someone whose licence was suspended for a Criminal Code related reason. The appellant filed a Notice of Appeal on March 20, 2023.

2The appellant raised two grounds of appeal: first, that she exercised due diligence in attempting to determine the driver’s licence of the driver at the time of the impoundment was not under suspension and second, that the impoundment will result in exceptional hardship.

3After the date for the hearing of the appeal was set, the respondent took the position that the filing was made after the expiration of the 15-day appeal period. Tribunal Vice Chair Osterberg directed that, on the hearing date of April 4, I was first to determine if an extension for the filing of the appeal should be granted. If the extension was granted, the appeal would proceed immediately thereafter.

4After hearing submissions of both parties on the whether I should grant the extension, I found the appellant met her onus in this regard and the hearing on the appeal commenced immediately. Unfortunately, the appellant became unwell and the matter was adjourned for continuation on April 11, 2023

5On April 17, 2023, I dismissed the appellant’s appeal and advised my reasons would be forthcoming. The following are those reasons.

Analysis

a) Motion to Extend the Time for Filing the Appeal

6Pursuant 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.

7In the appellant’s case the vehicle was impounded on March 2, 2023. The appeal deadline was Friday, March 17, 2023 and the appellant filed her appeal on Monday, March 20, 2023.

8Under s. 7 of the Licence Appeal Tribunal Act, 1999, the Tribunal may extend the deadline if the Tribunal is satisfied there are “reasonable grounds” for doing so.

9Determining 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.

10The 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.

11The onus is on the appellant to establish that there are reasonable grounds for granting the extension.

Bona Fide Intention to Appeal within the Appeal Period and the Length of the Delay

12I conclude the appellant had the intention to appeal before the expiration of the appeal period and that the length of the delay, in these circumstances, was not significant.

13The appellant testified she learned the vehicle was impounded on March 5, 2023; however, she did not receive any documentation confirming the impoundment until March 14, 2023. Before that time she had made some inquires about how to get her car back and contacted a paralegal on March 8 for advice. It was only after receiving the impoundment documentation that she took steps, with the paralegal’s assistance, to file the appeal, resulting in a filing that was three days late.

Prejudice to the other party

14There was no evidence that extending the appeal deadline would prejudice the respondent.

The merits of the appeal

15With respect to the merits of the appeal, I conclude the appellant had an arguable case with respect to both grounds of appeal.

16The appellant indicated during the extension argument that she intended to argue she had taken steps to confirm the driver was not suspended and further, that the impoundment resulted in exceptional hardship due to her lack of transportation

17On 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. I am satisfied the appellant met this low threshold.

18In summary I find that, in balancing the four factors, the justice of the case supports an extension of the appeal deadline.

b) Decision on the Appeal

Due Diligence

19I find the appellant has failed to meet her onus with respect to the ground of due diligence.

20The appellant testified she gave her car to Mr. Thompson, who was driving it at the time of the impoundment, so that he could do some mechanical work for her. She said she had known him for about 6 months. She had let him drive the vehicle before, maybe half a dozen times.

21Before she gave him the car she asked to see his licence, which she said he produced. Her recollection was she looked at his picture and determined the licence was not expired.

22She said she took a mental picture of his licence and then validated it by going to an Ontario government website, putting in his licence number and seeing a “round circle with a checkmark”, indicating he was licenced.

23Additionally, she said she asked him about the status of his licence on more than one occasion while he had the vehicle because she had encountered a situation before when her car had been impounded. Each time she asked, he assured her there was no problem with his licence.

24The driver of the vehicle, Mr. Thompson, also testified. His testimony varied from the appellant’s evidence in several significant areas. He said he has known the appellant for about five years and met through mutual friends. He said that he had shown his licence once to the appellant before he drove the car. His wallet, containing his licence, was stolen a couple of days before he was stopped and so he didn’t have his licence on him when he was stopped by the police. He said he was not aware his licence was suspended and the licence he showed to the appellant was the only one he had ever been given. He was very vague about his driver’s licence history.

25The evidence from the appellant and the Mr. Thompson differed from the documentary evidence entered by the respondent, which showed Mr. Thompson’s licence expired on September 2, 2016. The state of his licence at the time of the impoundment was suspended, cancelled, unlicenced and unrenewable. This means that even if Mr. Thompson had a driver’s licence that he showed to the appellant, it was one that had expired some 6 years ago. Given the vague testimony of Mr. Thompson regarding his driver’s licence status and history, I prefer the respondent’s evidence on this point.

26In short, I found the credibility of the appellant and Mr. Thompson to be wanting and I do not accept the evidence of either. In particular, I do not accept the appellant’s testimony about her checking the status of Mr. Thompson’s driver’s licence on the Ontario government website because, as I accept the respondent’s evidence about his licence status, the appellant could not have received the information that she testified to. I conclude the appellant did not exercise due diligence in attempting to determine the driver’s licence of the driver at the time of the impoundment was not under suspension and her appeal on this ground fails.

Exceptional Hardship

27For the reasons set out below I conclude that the impoundment will not result in exceptional hardship as that term is used and limited in the Act and the Regulation.

28Section 10 of Regulation sets out the requirements that must be met to show the impoundment will result in exceptional hardship.

29Section 10 (1) of the Regulation requires me to consider first whether “no alternative to the impounded motor vehicle is available”. Section 10 (2) of the Regulation prohibits the Tribunal from considering inconvenience to a person when analyzing an appeal based on exceptional hardship.

30Section 10(4) sets out what the appellant must show to meet this initial prong of the test:

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.

31If the appellant fails to demonstrate she had no other means of transportation, then that ground of appeal fails.

32It was clear from the appellant’s testimony that while the impoundment was causing her inconvenience, she and her children have alternative means to the impounded vehicle. She testified she has “to rely on other people to get around”, including her aunt and her sister. Her daughter can walk to school and the appellant has made arrangements for her son to be driven to his appointments. The appellant has walked to her appointments as well. She was able to travel to Ottawa from her home in Carleton Place to meet with the paralegal and arrange for the filing of the appeal

33With respect to the appellant’s transportation needs for work, I found her evidence was vague and inconsistent. Initially, in her evidence she said she was on Ontario Works due to a back injury and hadn’t worked for some time after moving in with her mother to assist her mother. Later, she said that just before the hearing, she missed a job opportunity as PSW because she was not able to travel to the client’s home without a car.

34Perhaps most confusing was her evidence that, although she lived with her mother who had a plated, operational vehicle in the driveway, the appellant was not allowed to use it for family groceries. The reason for this was unclear.

35In summary, although the impoundment has caused some adjustments in the family routine and caused the appellant to rely on others for transport, I find she has failed to prove she has no alternative to the impounded vehicle and her appeal on this ground fails.

ORDER

36Pursuant to s.50.2(5) of the Highway Traffic Act, I confirm the impoundment of the appellant’s vehicle.