Tribunal File Number: 14516/MVIA
Appeal Under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c.H.8 from an impoundment pursuant to Section 55.1 of the Act for driving while under suspension
Between:
James S. Lillico
Applicant
and
Registrar of Motor Vehicles
Respondent
MOTION ORDER
Order made by: Jeffery Campbell, Adjudicator
Appearances:
For the Applicant: Milan Cleteus Pious, Representative
For the Respondent: Ian Sookram, agent for the Registrar Stella Velocci, agent for the Registrar
Heard by Teleconference: January 24, 2023
OVERVIEW:
1On November 6, 2022, a vehicle owned by James S. Lillico (the appellant) was impounded for 45 days, pursuant to s. 55.5(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (The Act). The impoundment period ended December 21, 2022.
2The appellant filed a Notice of Appeal on January 9, 2023, 49 days after the time allowed for filing an appeal. The grounds for his appeal is exeptional hardship.
3The appellant brought a motion to extend the time for filing his appeal. On January 11, 2023, the Registrar for Motor Vehicles (the “Registrar”) advised both the appellant and the Tribunal that they were not consenting to an extension of time for filing.
MOTION:
4The applicant filed a Notice of Motion dated January 9, 2023 and sought the following relief:
i. An order of the Tribunal granting an extension of time to allow me to file my appeal outside of the legislated timeline.
RESULT:
5At the hearing of today’s date, and after discussion with respect to the failure of the Ontario Provincial Police (the “OPP”) to provide either the driver of the vehicle or the appellant with information regarding the procedure as to how to appeal the impoundment, and the OPP’s failure to notify the Registrar of the impoundment, which would have afforded the Registrar of the opportunity to advise the appellant of same information, the Registrar consented to the granting of an extension of the time for filing.
ORDER
6The motion is allowed and the filing period for the Notice of Appeal is extended to January 9, 2023.
7The appeal will proceed to Hearing.
8The appellant’s ground of appeal is (s. 50.2(3)(c)) that the owner of the vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension. The onus is on the appellant to prove on a balance of probabilities at least one of his grounds for appeal.
9Rule 23.2 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, October 2, 2017, (the “Rules”) requires that matters such as these be scheduled to be heard within 30 days of having received a complete appeal. The appeal was filed on September 27, 2022, and the hearing must begin within 30 days.
10I advised the appellant of the Open Court principle and the expected procedure of the hearing. I also advised the appellant of the test for exceptional hardship.
11The appellant is referred to the website link Ontario - Ontario Licence Appeal Tribunal | where he will find previous decisions of the Tribunal. The appellant is also referred to the website link GS: Resources | Tribunals Ontario, where he will find information with respect to LAT MVIA appeals.
I ORDER AS FOLLOWS:
12The issue to be determined at the hearing is whether the owner of the vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension.
13A hearing shall be scheduled by the Tribunal for one of the following dates:
February 2, 2023 commencing at 1:30 p.m. via teleconference
February 3, 2023 commencing at 9:30 a.m. via teleconference
February 3, 2023 commencing at 1:30 p.m. via teleconference
14The parties will provide to each other and to the Tribunal copies of all documents they intend to rely on at the hearing, and statements of anticipated evidence of any witnesses, by January 31, 2023 @ 5:00 pm.
15The parties will present evidence at the hearing. The appellant does not yet know if he will be calling witnesses at the hearing. The respondent does not expect to call any witnesses at the hearing.
16The parties shall be prepared to present their evidence and submissions to the hearing member on the hearing date, who will thereafter assess the evidence and make a determination on the issues raised in the appeal.
17The Rules apply to this appeal, except where varied by Order of the Tribunal.
18If 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.
19The hearing adjudicator may amend the case management process set out in this Order, subject to the submissions from the parties, as deemed fit.
20Nothing in this Order affects any requirement under the Act.
Released: January 31, 2023
LICENCE APPEAL TRIBUNAL
Jeffery Campbell, Vice-Chair