Licence Appeal Tribunal File Number: 14942/MVIA
In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8.
Between:
Tina Heffernan
Appellant
-and-
Registrar of Motor Vehicles
Respondent
MOTION ORDER
Adjudicator: Rupinder Hans
Appearances:
For the Appellant: Tina Heffernan, Self-represented
For the Respondent: Leila Pereira, Agent
Heard by teleconference: June 19, 2023
OVERVIEW
1Tina Heffernan (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 the 2009 Pontiac G/6 vehicle (the “vehicle”) on April 17, 2023, by the Registrar of Motor Vehicles (the “respondent”).
2The respondent opposed the motion for an extension of time. The appellant filed the Notice of Appeal on May 24, 2023, which is 22 days after the 15-day appeal period prescribed by Section 9 of Ontario Regulation 631/98 (the “Regulation”).
3After 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 will proceed on a date to be scheduled by the Tribunal.
ISSUE
4Should the Tribunal grant an extension of time to allow the appellant to appeal outside the legislated timeline?
RESULT
5I grant the extension of time and the appeal may proceed.
ANALYSIS
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 April 17, 2023. The appeal deadline was May 2, 2023. The appellant submitted her appeal by Xpresspost through Canada Post on May 19, 2023, and it was received at the Tribunal on May 24, 2023. I note the filing fee was made by Postal Money Order and is dated May 19, 2023.
8Under the Licence Appeal Tribunal Act s. 7, 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 that while the length of the delay was significant, the appellant had the intention to appeal before the expiration of the appeal period.
13The appellant advised that her son was the driver at the time the vehicle was impounded. He came home after the impoundment with paperwork regarding the impoundment, however, the next day the paperwork could not be located. She diligently searched for the paperwork but could not find any paperwork. She then attended the police station to obtain additional details and paperwork on the impoundment but was unsuccessful. She stated that the police would not provide her with any details or the impoundment number. She also attended the impoundment lot to obtain additional details on the impoundment.
14The appellant stated that, prior to filing the appeal she had not received the Notice of Impoundment and Release (“NOIR”) which contains information regarding the process of appealing the impoundment. There is no contrary information before the Board in this regard.
15The appellant submits she did not have access to appeal information.
16The appellant stated that she was not aware she had missed the filing deadline until after the appeal was filed and the Tribunal contacted her to advise. She stated she had every intention of pursuing an appeal and the impoundment has been a difficult time for her.
17I found the appellant’s submissions to be forthright. I am satisfied that she did have a bona fide intention to appeal within the required time period and that the length of delay was adequately explained.
Prejudice to the other party
18The respondent advised that there is prejudice given that the impoundment period of 45 days has passed. Thus, it would be responsible for the entire 45 day impoundment fees were the appeal to be granted.
19I find that there is some prejudice to the respondent with the late filing. I took this factor into consideration.
The merits of the appeal
20To consider the justice of the case for an extension of time limit based on the merits of the appeal, I must only be satisfied that there is some merit to the appeal based upon the evidence before me. This is not an exercise in prejudging the hearing outcome.
21The appellant raised one ground of appeal that the impoundment will result in exceptional hardship to her. She advised that she had no car for 45 days given the impoundment of her vehicle and this has caused exceptional hardship.
22With respect to the merits of the appeal, I find that the appellant had an arguable case.
CONCLUSION
23On 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.
24In summary I find that, in balancing the four factors, the justice of the case supports an extension of the appeal deadline.
25I asked if the parties were prepared to proceed with the hearing of the appeal at this time. It would appear the appellant had not properly reviewed the respondent’s submissions/documents, and the respondent took the position that the appellant should be afforded this opportunity. The appellant initially stated that she was ready to proceed but acknowledged that she would need time to review the respondent’s submissions/documents.
26The hearing of this appeal will take place according to the following orders.
I ORDER AS FOLLOWS:
27The motion is allowed and the filing period for the Notice of Appeal is extended to May 24, 2023.
28The appeal will proceed to Hearing.
29The issues to be determined at the hearing are whether the appellant can prove that the impoundment will result in exceptional hardship as defined by the Act and Regulations.
30A hearing shall be scheduled by the Tribunal for one of the following dates:
June 28, 2023 commencing at 9:30 a.m. via teleconference, or
June 28, 2023 commencing at 1:30 p.m. via teleconference, or
June 29, 2023 commencing at 9:30 a.m. via teleconference
31The appellant will provide to the respondent and to the Tribunal copies of all documents she intends to rely on at the hearing, that have not already been provided, by June 23, 2023 at 5:00 p.m.
32The respondent will provide to the appellant and to the Tribunal copies of all documents intended to rely on at the hearing, that have not already been provided, by June 23, 2023 at 5:00 p.m.
33If the parties reach an agreement on the issues in dispute prior to the scheduled hearing dates, they shall immediately advise the Tribunal. The appellant must then file a Notice of Withdrawal, available at https://tribunalsontario.ca/documents/lat/02029E-Fillable.pdf , and serve a copy of that Notice to the Registrar, and file a copy with the Tribunal. The Tribunal will thereafter cancel the hearing.
34The hearing adjudicator may amend the case management process set out in this Order, subject to the submissions from the parties, as deemed fit.
35Nothing in this Order affects any requirement under the Act.
36I am not seized of this matter.
LICENCE APPEAL TRIBUNAL
Rupinder Hans, Member
Released: June 21, 2023