Licence Appeal Tribunal File Number: 15029/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 under section 55.1 of the Act
Between:
13621677 Canada Inc.
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
VICE-CHAIR: Colin Osterberg
APPEARANCES:
For the Appellant: Narmathan Vijayanathan, President of appellant
For the Respondent: Andrew Sookhoo, Representative
HEARD: July 10, 2023
OVERVIEW
113621677 Canada Inc. (the "appellant") seeks to appeal the impoundment of its 2007 Peterbilt motor vehicle under section 55.1 of the Highway Traffic Act (the "Act”).
2The appellant's vehicle was impounded on June 14, 2023, when it was stopped by the police and the appellant’s president, Narmathan Vijayanathan, was found to be driving it while his licence was under suspension. The period of impoundment is 45 days and expires July 29, 2023. The appeal was filed on June 30, 2023, which is the 16th day after the impoundment.
3Section 9 of Ontario Regulation 641/98 provides that an appeal under s. 50.2 of the Act must be commenced within 15 days of the impoundment.
4The appellant brings this motion to extend the time for filing its appeal. Both parties agreed that, if the motion for the extension of time is granted, the evidence presented at the motion should be used as evidence for the purposes of the hearing of the appeal on its merits and that a further hearing date is unnecessary.
5The grounds of appeal raised by the appellant are that it exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension, and that the impoundment will result in exceptional hardship.
6For the reasons given below, I find that the justice of this case does warrant an extension of the time for filing the appeal. The appellant’s motion is therefore allowed.
7However, I find that the appellant has failed to establish that it exercised due diligence or that the impoundment will result in exceptional hardship. The impoundment is therefore confirmed.
ANALYSIS
Motion for Extension
8Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch G gives the Tribunal the discretion to grant an extension of time where there are reasonable grounds for applying for the extension and for granting relief.
9In Manuel v. Registrar of Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492, the Divisional Court ruled that, on a motion to extend the time to appeal, the overriding consideration is whether the justice of the case requires that the extension be granted. The factors to be considered are:
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.
10I have considered the evidence relating to each of these factors as they apply to this case.
Bona fide intention to appeal within the appeal period
11I accept the appellant’s evidence that it intended to appeal within the 15-day appeal period.
12Mr. Vijayanathan testified at the hearing. He was the driver when the vehicle was impounded. He was driving under a valid Quebec driver’s licence at the time and did not know that his licence in Ontario was under suspension.
13After the impoundment, Mr. Vijayanathan spoke with the police officer who impounded the vehicle and was told that he should contact the Ministry of Transportation (MTO) for information on how to have the vehicle released. It took Mr. Vigayanathan several days to get in touch with the police officer and then to speak with someone at the MTO. He was eventually told that he should contact the Tribunal for direction as to his right to appeal. On the 15th day after the impoundment, Mr. Vijayanathan spoke with someone at the Tribunal who told him about the appeal procedure. By then it was after business hours and an appeal was not filed until the next day which was one day after the expiry of the appeal period.
14In my view, the appellant made sufficient effort to determine how to have his vehicle removed from impound in order to show that he had the intent to appeal within the 15-day appeal period.
Length of the delay
15I find the delay to be of only minor significance in this case. However, the appellant did present evidence that satisfies me he had a reasonable explanation for the delay.
16I find that there was not a significant delay in all the circumstances.
Prejudice
17The Registrar benefits from a prompt hearing and would be prejudiced by an extension of the time for filing the appeal. If the appellant’s appeal is successful, the Registrar will be required to cover the cost of the impoundment. The earlier the appeal is dealt with, the less it will cost the Registrar to have the vehicle released. The prejudice to the Registrar is the risk of incurring greater expense than it would otherwise have been exposed to.
18In the present case, on the consent of the parties, the parties agreed that the evidence presented at the motion may be used as the hearing evidence should the motion be granted and that a further date for a hearing is not required. This significantly mitigates the prejudice to the Registrar and such prejudice is only a minor consideration with respect to whether the justice of the case requires that an extension be granted.
The merits of the appeal
19On a motion to extend time, the appellant need not establish its case on a balance of probabilities but only that his version of events, if believed, could reasonably result in a favourable outcome.
20The grounds of appeal raised by the appellant are that it exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension, and that the impoundment will result in exceptional hardship.
21I discuss the merits of the appellant’s appeal below and will not repeat them here. I find that the merits of the appeal meet the lower threshold required to grant the extension of time.
22In summary, I find that the appellant has demonstrated that it had a bona fide intention to appeal within the appeal period. I find that his delay in filing the appeal is reasonable in the circumstances and of minor prejudice to the Registrar. I find that there is some likelihood that the appeal, if allowed to proceed, would be successful on its merits.
23I find that the justice of the case requires that the request for an extension be allowed.
Hearing of appeal
24Although the appellant has satisfied me that the merits of the appeal meet the lower threshold required to grant the extension of time, I find that it has not established either ground of appeal for the purposes of the hearing.
Due diligence
25The evidence does not demonstrate that the appellant exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension.
26Mr. Vijayanathan was convicted of impaired driving in Ontario in 2019. At that time, he did not have a valid Ontario driver’s licence but was licenced in Quebec. His Quebec driver’s licence was suspended. In addition, the MTO suspended the appellant’s Ontario driving privileges. According to Mr. Vijayanathan, he did not know that his Ontario driving privileges were suspended and thought the conviction only impacted his Quebec licence.
27After his suspension in Quebec was completed, Mr. Vijayanathan was required to undergo an alcohol education course after which his licence was subject to a condition requiring that he only operate vehicles with an interlock system installed. He did that and his full Quebec licence was reinstated in January 2022.
28Once Mr. Vijayanathan’s Quebec licence was reinstated, he thought he was able to drive in Ontario as well. He did not make any enquiries with the MTO, or anyone else, to determine if that was true or not and assumed he could drive using the Quebec licence.
29Unfortunately for Mr. Vijayanathan, the reinstatement of a driver’s out of province licence does not automatically reinstate their driving privileges in Ontario. For that to happen, the driver is required to submit proof of his compliance with the reinstatement requirements in the other province to the MTO at which time the MTO will determine whether or not that is sufficient for reinstatement of their right to drive in Ontario. As of the time of the impoundment, the appellant had not done this and his Ontario driving privileges were still under suspension.
30In my view, the appellant’s actions do not amount to due diligence in the circumstances. It was unreasonable for the appellant to assume that the reinstatement of Mr. Vijayanathan’s driver’s licence in Quebec allowed him to drive in Ontario. It should have taken some steps to ensure that he was so entitled and he did not. Mr. Vijayanathan was convicted of impair driving in Ontario by an Ontario court. It was not reasonable for him to assume that the Ontario driving authority, the MTO, would be bound by the determination of his right to drive in Ontario by the Quebec licensing authority. He should have at least contacted the MTO and asked whether his driving privileges in Ontario were reinstated along with his Quebec licence.
31I find that the appellant has not satisfied the onus on him to show that he exercised due diligence in accordance with the Act and his appeal under this ground must fail.
Exceptional hardship
32The appellant has failed to show that the impoundment will result in exceptional hardship in accordance with the Act.
33The impounded vehicle is a transport tractor which is used commercially. Mr. Vijayanathan is the sole owner, director, and employee of the appellant’s business and operates the impounded vehicle in his employment for the appellant doing long-haul commercial driving.
34The appellant’s claim of exceptional hardship is based on Mr. Vijayanathan’s allegation that he will suffer financial losses as the result of the impoundment and will not be able to support his family should the vehicle remain impounded for the full 45 days.
35In my view, the appellant is prevented from relying on this ground of appeal by s. 10(3)(d)(i) which states that, in order to appeal on the ground of exceptional hardship on the basis of financial or economic losses, the owner must demonstrate that the impact of the loss will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and will not be a result of financial or economic losses by the suspended driver.
36Mr. Vijayanathan is the sole shareholder, director, and employee of the appellant company. The evidence demonstrates that the impact of the impoundment will be to Mr. Vijayanathan and his family as the result of financial or economic losses by Mr. Vijayanathan.
37The impounded vehicle is a transport truck used to generate income for Mr. Vijanathan. He has a personal vehicle which his family uses for their day-to-day activities. Mr. Vijayanathan’s evidence is that he and his family need the income generated by the use of the impounded vehicle in order to meet their financial obligations.
38I find that s. 10(3)(d)(i) applies to prevent the appellant from relying on exceptional hardship as a ground of appeal since the appellant has failed to demonstrate that the impact of the loss will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle.
39The appellant’s appeal under this ground must fail.
ORDER
40For the reasons set out above, and pursuant to subsection 50.2(5) of the Act, I confirm the impoundment of the appellant’s vehicle.
LICENCE APPEAL TRIBUNAL
Colin Osterberg, Vice-Chair
Released: July 24 2023