Licence Appeal Tribunal File Number: 14907/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:
Odain Griffiths
Appellant
and
Registrar of Motor Vehicles
Respondent
MOTION ORDER
ADJUDICATOR: Avril A. Farlam, Vice Chair
APPEARANCES:
For the Appellant: Odain Griffiths, Self-represented
For the Respondent: Leila Pereira, Agent
Heard by Teleconference: June 1, 2023
ORDER ON MOTION
OVERVIEW
1Odain Griffiths (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 2017 Range Rover (the "vehicle") for 45 days on April 18, 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 by a person whose driver's licence was suspended.
2The appellant states in his Notice of Motion that "I received this letter late and by the time I figured out how to go about it, it was already a few days late." The appellant confirmed at the hearing that his proposed ground of appeal, should the appeal be allowed to proceed, would be that the impoundment has resulted in exceptional hardship because he needs his vehicle for personal use such as groceries and picking up his children from daycare.
3The respondent opposed motion for extension of time.
ISSUE
4The issue 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:
- The existence of a bona fide (good faith) intention to appeal [within the appeal period];
- The length of the delay;
- Prejudice to the other party; and
- 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
11I find that there is insufficient evidence that the appellant had a good faith intention to appeal within the appeal period.
12The appellant testified that he did not appeal within the legislated time limit because he did not understand how to appeal and he got the Notice of Impoundment and Release (the "Notice") a week or so after the deadline for filing his appeal had expired. The appellant testified that he believed the Notice was delayed in the mail because he moved his residence to unit 107 from unit 106 at his address about the time of the impoundment.
13I find that the appellant took no steps during the appeal period to inform himself about how to appeal the impoundment if he wished to do so, despite having actual knowledge of the impoundment the day after it occurred. Ignorance of the right and process to appeal is no excuse. The appellant admitted that he knew of the impoundment the day after it happened. The appellant admitted that he received a telephone call from a woman on behalf of the driver to inform him of the impoundment the day after the impoundment. He did not recall her name. Following that telephone call, the appellant called the police who confirmed the impoundment. The appellant also testified that the police came to his residence "a day or two" after the impoundment and discussed the impoundment with him although he denied that the police provided any paperwork to him about the impoundment at that time.
14The appellant also admitted that he received the Notice in the mail but did not recall the date that he received the Notice. The appellant testified that it was about a week after the time to appeal had expired. The appellant said that the mail was likely delayed because he had moved his residence from unit 106 to 107 at the same address about this time.
15I find the appellant's testimony about receiving the Notice after the time for appeal had expired to be not reliable or credible. The Notice is dated April 19, 2023 and shows it was mailed to the appellant to unit 106 at his residential address. The respondent's documents confirm that unit 106 was the appellant's address at the time of the impoundment and continues to be his address as of May 29, 2023. The change of address is not mentioned in the appellants Notice of Motion or the Notice of Appeal.
16If the appellant received the Notice after the time for appeal had expired, then I find that this was the result of his own inaction. The appellant admitted in cross-examination that he did not pick up his mail "on time" with the result that he did not read the Notice until "a week or two after" the time for appeal had expired. The Notice of Appeal is dated May 10, 2023 and the Notice of Motion to extend the time for appeal is dated May 18, 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.
(ii) Length of the delay
18The time for appeal expired May 3, 2023. The appellant's Notice of Appeal is dated May 10, 2023, some seven days late.
19I find there has been substantial delay. The appellant was given actual notice of the impoundment the day following the impoundment from the driver's friend which the appellant confirmed by speaking to the police. The police came to the appellants home to discuss the impoundment several days after it occurred. The appellant chose not to pick up his mail on time following the impoundment. The appellant should have made himself aware of the time-limited right of appeal and filed his appeal within the legislated deadline. The appellant could have obtained information about his appeal rights from the publicly available information on the internet or sought advice. There is no evidence that the appellant attempted to file his appeal on time.
(iii) Prejudice to the other party
20I 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.
(iv) Merits of the appeal
21The 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 ground of appeal is under s. 50.2(3)(d), specifically that the impoundment will result in exceptional hardship because he needs his vehicle for personal use such as groceries and picking up his children from daycare and also because using ubers and paying the impoundment fee has caused financial hardship to him.
22While 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.
23The appellant testified that he has used alternative transportation during the impoundment period, specifically his fiance's vehicle and uber. The appellant testified that he has not missed any work because of the impoundment and has used his fiance's vehicle and more recently uber to pick up his children and to obtain personal items such as groceries. Because the appellant had alternative transportation, it is unlikely that the appellant would be able to meet the legislated test for "exceptional hardship" which is detailed and specific.
24The appellant testified that he agreed in March 2023 to rent the vehicle for a total of two months to Joganathan Nexon. Although the appellant testified that he does not think his vehicle should be impounded because at the time of impoundment, the vehicle was being driven by another person, not Mr. Nexon, the appellant also testified that he decided to rent his vehicle to make extra income and he is not appealing on the ground that his vehicle was stolen. The circumstances described by the appellant, that the vehicle was being driven by someone other than the person who rented the vehicle, is not a ground of appeal set out in s. 50.2(3) of the Act and the Tribunal therefore does not have authority to order the release of the vehicle on that basis even if the time for appeal was to be extended.
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.
ORDER:
27The appellant's motion to extend the time to file his appeal is denied. The appeal shall not proceed.
LICENCE APPEAL TRIBUNAL
____________________________
Avril A. Farlam, Vice-Chair
Released: June 13, 2023