Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Date: 2023-05-05

Licence Appeal Tribunal File Number: 14819/MVIA

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:

Olabode Odunsi Appellant

and

Registrar of Motor Vehicles Respondent

MOTION ORDER

VICE-CHAIR: Avril A. Farlam

Appearances:

For the Appellant: Olabode Odunsi, Self-represented

For the Respondent: Leila Pereira, Agent

HEARD: April 21, 2023

ORDER ON MOTION

OVERVIEW

1Olabode Odunsi (the “appellant”) filed a motion for an order granting an extension of time for the appellant to file an appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“Act”) from the impoundment of his 2018 Mercedes (the “vehicle”) for 45 days on March 23, 2023 by the Registrar of Motor Vehicles (the “respondent”). At the time the vehicle was detained in order to be impounded it was being driven the appellant who was driving the vehicle in contravention of the condition on his drivers licence that he have an ignition interlock device.

2The appellant agreed his appeal was not perfected until April 13 although he sent in some documentation on April 10, 2023. The Notice of Motion states that the appellant did not know about the appeal process to the Tribunal, wasn’t told by the police and had to do his own research. It also states that he “was aware” that the condition on his drivers licence was “done”. The appellant confirmed at the hearing that his proposed grounds of appeal, should the appeal be allowed to proceed, would be firstly, that his drivers licence was not under a condition at the time of impoundment, and secondly, that the impoundment will result in exceptional hardship because he needs his vehicle for his work and the impoundment fee will cause financial hardship to him.

3The respondent opposed motion for extension of time.

issue

4The issue to be addressed in this hearing is whether the Tribunal should extend the time for the appellant to file his appeal.

RESULT

5The appellant’s motion to extend the time to file his appeal is denied. The appeal shall not proceed.

ANALYSIS

Should the Tribunal extend the time for the appellant to file an appeal?

6Section 9 of O. Reg. 631/98, entitled “Long-Term Vehicle Impoundment Under Section 55.1 of the Act”, states that an appeal of an impoundment under s. 55.1 of the Act must be filed within 15 days of the impoundment.

7The appellant’s motion is to extend the time for filing an appeal. Pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G the Tribunal may extend the time to file an appeal if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief.

8To be successful on this motion the appellant must show that there are reasonable grounds for the extension and for the granting an extension of time. The Tribunal must consider the following factors as set out in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.) when deciding whether to grant an extension of time to file an appeal:

1. The existence of a bona fide (good faith) intention to appeal [within the appeal period];

2. The length of the delay;

3. Prejudice to the other party; and

4. The merits of the appeal.

9The Divisional Court determined that the factors to be considered are simply a guide to assist in determining the justice of the case and should not be slavishly followed.

10I will consider these factors below in light of the evidence of the appellant and his submissions at the hearing.

(i) Bona fide (good faith) intention to appeal within the appeal period

11The appellant testified that he did not appeal within the time required because he did not know he could. However, the appellant admitted that at the time of impoundment the police provided to him impoundment documents which stated that an appeal could be made to the Tribunal and outlined the process for doing so. The appellant admitted he did not read the documents given to him at the time he received them and never looked at the paperwork again. The appellant also admitted that he received in the mail further documents which contained information about the possible appeal to the Tribunal. The appellant did not read this either.

12The appellant said that he searched on the internet for information about an appeal but he did not find the Licence Appeal Tribunal and telephoned Service Ontario and the police but they did not tell him about an appeal to Tribunal. It was not until after the time for appeal had expired that his friends told him he could appeal the impoundment. The appellant sent in part of the information required for this appeal on April 10 but did not perfect the appeal until April 13, 2023.

13The appellant also testified that he believed the condition about the ignition interlock device on his drivers licence had expired and that a “clerical error” had been made by the Ministry because paperwork was sent by him to the Ministry more than a year earlier and the Ministry failed to remove the condition from his drivers licence. The appellant did not bring forward any documentation to establish that he had done this.

14The Ministry has since the date of the impoundment now removed the condition from his drivers licence and the appellant sent a copy of his drivers licence to establish this.

15I find that there is insufficient evidence that the appellant had a good faith intention to appeal within the appeal period.

16The appellant knew of the impoundment and was given documentation informing of him of his right to appeal at the time of impoundment. The appellant chose not to read the documentation. Ignorance of the right to appeal is no excuse. The appellant did not send in his Notice of Appeal until after the time for appeal had expired and did not perfect the appeal until April 13, 2023.

17Before me there is no documentary or other corroborating evidence that the appellant had a genuine intention to appeal prior to the expiration of the legislated deadline.

Length of the delay

18The appellant’s appeal was perfected April 13, some six days late. The unperfected appeal was some three days late.

19I find there has been substantial delay. The appellant was given written notice at the time of the impoundment but chose not to read it. The appellant should have made himself aware of the time-limited right of appeal and filed his appeal within the legislated deadline. It was easy for the appellant to do this. All he had to do is read the documentation given to him, or seek advice if he was unable to understand what the documents said. There is no evidence that the appellant attempted to file his appeal on time.

20However, this is only one of the factors to be considered on the motion.

(ii) Prejudice to the other party

21I agree with the respondent’s submission that the respondent would be prejudiced if the motion was granted because if the appeal goes forward and is successful, the respondent will likely be required to pay greater impoundment fees than if the appeal had been filed within the legislative time.

(iii) Merits of the appeal

22The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Act may, pursuant to s. 50.2, appeal the impoundment. An owner may appeal only on the grounds set out in s. 50.2 (3), (a), (b), (c) and (d) of the Act. Here the appellant confirmed at this hearing that his grounds of appeal are under s. 50.2(3)(b) and(d), specifically that firstly, that his drivers licence was not under a condition at the time of impoundment, and secondly, that the impoundment will result in exceptional hardship because he needs his vehicle for his work and the impoundment fee will cause financial hardship to him.

23While the bar is low under this heading, it appears that the appeal is unlikely to succeed on the merits, even if the time to appeal is extended. The Registrars documents filed at the motion clearly establish that on the date of the impoundment the appellants drivers licence was still subject to the ignition interlock condition. There is no evidence of a “clerical error” by the Ministry as the appellant suggests. Even though the condition has now been removed from the appellants drivers licence, it was in effect on the date of impoundment as the Registrar has clearly established with its documentation.

24The appellant brought forward no evidence as to how the impoundment will result in exceptional hardship to him except his testimony that he needs his vehicle to work and the impoundment fee will be hard for him to pay. As a result, It is unlikely that this would meet the legislated test for “exceptional hardship” which is detailed and specific.

25To succeed on a motion for an extension of the time to file an appeal, the burden is on the appellant to demonstrate reasonable grounds on which an extension of time should be granted. I find that the appellant has not demonstrated that he had a bona fide (or good faith) intention to appeal within the time for appeal and that there has been substantial delay in filing the appeal. If the appeal is allowed to proceed to a hearing, I find that there would be prejudice to the respondent and the appeal is unlikely to succeed on the merits in any event.

26As a result, I find that the appellant has failed to establish that the justice of the case requires an extension of the time for the filing of the appellant’s appeal. The appellant’s motion is denied.

ORDER:

27The appellant’s motion to extend the time to file his appeal is denied. The appeal shall not proceed.