Ashley Arruda v. Registrar of Motor Vehicles, 2023 CanLII 65781

Licence Appeal Tribunal

Date: 2023-07-17

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:

Ashley Arruda Appellant

-and-

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Jeffery Campbell, Vice-Chair

Appearances:

For the Appellant: Ashley Arruda, Self-represented For the Respondent: Leila Pereira, Agent

Heard by teleconference: July 14, 2023

Overview

1Ashley Arruda (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 her 2011 Kia Sorrento (the “vehicle”) on June 3, 2023. At the time of the impoundment, the vehicle was being driven by her mother, Maria Arruda (the “driver”), on whose licence was a condition that she not drive a vehicle that does not have an interlock ignition device.

2The respondent opposed the motion for an extension of time. The appellant filed the Notice of Appeal on June 26, 2023, 8 days after the required date of filing.

3The appellant’s sole ground of appeal is that the impoundment will result in exceptional hardship.

4The parties agreed that, should the request for an extension of time be granted, we will proceed immediately to the appeal of the impoundment.

Issues

5The two issues to be determined are:

1. Should the appeal deadline be extended to allow the appeal to be filed and heard by the Tribunal?
2. Should the request for the extension of time be allowed, will the impoundment result in exceptional hardship as that term is defined in the Act and O. Reg. 631/98 (the “Regulation”)?

Analysis

Should the appeal deadline be extended?

6I find that, on balance, the justice of the case favours the granting of an extension of time to file an appeal and the appeal deadline is extended to June 26, 2023.

7According to the Regulation, an appeal of a long-term impoundment is required to be filed within 15 days after the day the vehicle was detained.

8In the appellant’s case, the vehicle was impounded on June 3, 2023. The appeal deadline was June 18, 2023 and the appellant filed her appeal on June 26, 2023.

9Pursuant to section 7 of the Licence Appeal Tribunal Act, the Tribunal may extend the deadline if the Tribunal is satisfied there are “reasonable grounds” for doing so. The onus is on the appellant to establish that there are reasonable grounds for granting the extension.

10Determining 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.

11The 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.

12Taking all of these factors into account, I conclude that the justice of the case requires an extension of the appeal deadline.

Bona Fide Intention to Appeal within the Appeal Period

13I find that the appellant had a bona fide intention to appeal before the expiration of the appeal period.

14The appellant advised the first time that she was made aware that there was an opportunity to appeal the impoundment was when she received a letter from the Ministry of Transportation on June 26, 2023. The appellant submitted a copy of that letter. She also advised that, at the time of the impoundment, neither she nor the driver received the Notice to Registrar or the Notice of Impoundment and Release, both of which enclose information regarding the appeal process.

15The agent for the Registrar of Motor Vehicles (the “respondent”) advised that the appellant should have received the Notice to Registrar, which would have alerted her to the process of and deadline for filing the appeal.

16Unfortunately, in these cases, there is no proof of appellants having been delivered either the Notice to Registrar or the Notice of Impoundment and Release that could verify receipt of each document. In this case, I find the appellant’s testimony to be credible in that she did appeal the impoundment on the date that she says she received the letter of June 26, 2023.

Length of the Delay

17The length of the delay was a matter of eight days. I find that, in the case of a 45 day impoundment, this amount of time is not onerous nor unreasonable.

Prejudice to the other party

18The respondent submitted that the prejudice to the Registrar would be added cost of the impoundment for an extra 8 days. When weighing the prejudice of that added cost to the value to the appellant of having the ability to appeal, I find that the value to the appellant outweighs the prejudice to the respondent.

Merits of the appeal

19It is not the Tribunal’s function at this point to determine the strength of the appellant’s appeal. At this point the appellant must show only that her appeal has some merit, and in this case, I find that the appellant has met that relatively low test.

20The appellant intends to rely on the ground of appeal that the impoundment will result in exceptional hardship. The appellant submitted that she receives a disability pension of the Ontario Disability Support Program (“ODSP”) due to her medical conditions. One of those conditions is that of arthrogryposis, a condition which affects the joints, most commonly affecting the legs and arms making it difficult to walk any lengthy distance. She submitted that the vehicle was modified in order to accommodate the attachment of her scooter.

21The appellant submitted that she lives in a house with the driver, and they have no other vehicles. There are certainly no other vehicles equipped with the modifications necessary to accommodate a scooter. She submitted that it is necessary for her to attend medical appointments, and disability transit carriers such as Wheel-Trans are not practical due to the necessity of transferring when being transported to other jurisdictions, and the scheduling conflicts that that creates. The use of the scooter enables her to go from her vehicle to the offices where her medical appointments occur.

22As this case involves the impoundment of a vehicle that is modified to accommodate the appellant’s disability, I conclude that this appeal is not frivolous and has at least some merit.

23Overall, the justice of the case supports extending the appeal deadline. As a result, I extend the deadline to appeal to June 26, 2023, and my decision on the merits of the appeal are set out below.

Will the impoundment result in exceptional hardship as that term is defined in the Act and Regulation 631/98 (the “[Regulation](https://www.canlii.org/en/on/laws/regu/o-reg-631-98/latest/o-reg-631-98.html)”)?

24I find that the impoundment will result in exceptional hardship.

25The respondent presented documentary evidence which established that the appellant is the registered owner of the vehicle and that the vehicle was stopped while being driven by a person whose licence required the installation of an interlock ignition device. I am therefore satisfied that the vehicle was validly impounded.

26The appellant testified that the vehicle was modified to allow for the carrying of her scooter, which accommodates her medical condition, enabling her to attend her medical appointments. She provided medical records to verify this diagnosis. According to those records she also has a mobility impairment, mental health disability and ADHD.

27According to the appellant, there is no other vehicle available that is able to accommodate the carrying of her scooter. She testified that she is unable to utilize disability carriers such as Wheel-Trans due to the inability to coordinate scheduling of different carriers in different municipalities where her appointments take place. With respect to public transit, she feels unsafe, especially considering her limitations and disabilities.

28Upon questioning from the respondent, the appellant testified that either she or her mother is able to obtain groceries and personal items from a convenience store across the street from their residence. With respect to pharmaceuticals, the appellant testified that she is not currently on prescription medication.

29With respect to medical appointments, she has had to miss an appointment with her eye specialist in Vaughan, Ontario for treatment of what she terms as a progressive disability of her eyes.

30The appellant testified that the only source of household income is what she and her mother receive from ODSP. According to her testimony, this limited household income makes the use of taxies and ride sharing programs cost prohibitive. The appellant also advised that all of hers and her mother’s ODSP payments go toward paying the rent and their monthly bills. She has struggled with how she would be able to afford getting the vehicle out of impound.

31According to the Regulation, in considering the ground of exceptional hardship, the Tribunal must first consider whether there is an alternative to the impounded vehicle. As the vehicle was modified to accommodate the appellant’s specific disability, and with the prohibitive cost of taxies and ride sharing along with the logistical problem of using disability carriers for appointments outside of the Greater Toronto Area, I am satisfied that there is no alternative to the impounded vehicle.

32Having found that there is no alternative to the vehicle, the Tribunal is now required to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle.

33The respondent submitted that the appellant testified that she is able to obtain groceries and personal items, and that, to date, there have been no medical emergencies.

34The date of release of the vehicle is July 18, 2023.

35While I do appreciate the position of the respondent, it is evident that the appellant is a person with multiple disabilities, for which the vehicle was modified to accommodate her transport to and from medical appointments. While there have been no medical emergencies to date, the sustained impoundment of the vehicle, should the appellant be unable to finance its release on July 18, 2023, threatens the health and safety of the appellant, considering those disabilities.

Conclusion

36In summary, I conclude that there is no alternative to the impounded vehicle and the impoundment of the vehicle will result in a threat to the health or safety of the appellant. I find, therefore, that the impoundment of the vehicle will result in exceptional hardship.

I ORDER AS FOLLOWS:

37The appeal deadline is extended to June 26, 2023.

38I order the respondent to release the appellant’s vehicle.