Licence Appeal Tribunal File Number: 15077/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:

Emina Bajektarevic

Appellant

and

Registrar of Motor Vehicles

Respondent

MOTION ORDER

ADJUDICATOR: Avril A. Farlam, Vice Chair

APPEARANCES:

For the Appellant: Emina Bajektarevic, Self-represented

For the Respondent: Andrew Sookhoo, Agent

Heard by Teleconference; August 9, 2023

ORDER ON MOTION

OVERVIEW

1Emina Bajektarevic (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 2016 Ford truck (the “vehicle”) for 45 days on July 8, 2023 by the Registrar of Motor Vehicles (the “respondent”).

2The appellant confirmed at the hearing that her proposed ground of appeal, should the appeal be allowed to proceed, would be that the impoundment has resulted in exceptional hardship because she needs her vehicle for commuting and for her construction business in which she uses the vehicle to transport workers, tools and get to job sites. Since the date of impoundment, the appellant has not been able to complete jobs and has had no income, has suffered financial hardship, lost some work contracts and missed important appointments.

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 her appeal.

RESULT

5The appellant’s motion to extend the time to file her 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 did not file her appeal within 15 days of the impoundment and brings this motion to extend the time for filing an appeal. The time for filing ended on July 23, 2023 and the appellant did not file her appeal until July 25, 2023. 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 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:

1. The existence of a bona fide (good faith) intention to appeal [within the appeal period];

2. The length of the delay;

3. Prejudice to the other party; and

4. 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 her 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 states in her Notice of Motion that “I’m making this motion for the reason that when I phone the tribunal to request the appeal”. At the hearing the appellant testified that she did not appeal within the legislated time limit because although she received written notice of the impoundment and instructions on how to file an appeal on July 12, 2023, instead of filing her appeal, she telephoned the Tribunal on July 13, 2023 and was told by a staff member that weekends were not included in the calculation of the 15 day time limit to appeal. The appellant testified that she therefore thought she had until July 28, 2023 to appeal.

13The appellant testified that she did not know the name of the Tribunal staff member she spoke to, only that it was a man. The appellant also testified that it took her time to get the funds to pay the filing fee. On July 24 the appellant borrowed the filing fee and sent it to the Tribunal. The appellant filed her Notice of Appeal which was received at the Tribunal on July 25, 2023.

14I find that the appellant took no steps during the appeal period to file her appeal, despite having actual knowledge of the impoundment on the day it occurred according to her testimony and to her Notice of Appeal. The appellant had no evidence that she telephoned the Tribunal on July 13, 2023 but even if she had this evidence and could establish that she did telephone the Tribunal, making an inquiry of Tribunal staff instead of filing the appeal in accordance with the notice of impoundment, does not establish intent to appeal within the appeal period.

15The appellant admitted in cross-examination that after receiving the notice of impoundment in the mail, she spoke to both the police and the staff at the impound facility about appealing the impoundment. In addition, the appellant admitted that she had read the notice that she received and knew about the 15 day time limit for appeal.

16Before 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.

Length of the delay

17The time for appeal expired July 23, 2023. According to the documents filed at the hearing, the appellant’s Notice of Appeal was not received until July 25. The filing fee was sent after business hours on July 24, 2023.

18I find there has been substantial delay when the delay is considered in the context of a total 15 day appeal period and the following facts in this particular case. The appellant knew about the impoundment at the time it occurred according to her Notice of Appeal and her testimony. The appellant received the notice of impoundment and the information on the time limit for appeal on July 12, 2023. The appellant was also made aware by both the police and the impound facility that the impoundment could be appealed. The appellant could have obtained more information about her appeal rights from the publicly available information on the internet or sought advice.

(ii) Prejudice to the other party

19I find 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.

(iii) Merits of the appeal

20The 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 her ground of appeal is under s. 50.2(3)(d), specifically that the impoundment will result in exceptional hardship to her.

21While 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.

22The appellant admitted in cross-examination that she owns a second vehicle, a Honda Civic, and was driving it from the date of impoundment until July 24, 2023 when it was rear-ended in a collision and requires repair. The appellant testified that she was told the Honda could be repaired in three to four days, that the other person involved in the collision is paying for the repairs and she expects it to go in for repair on August 10 or shortly thereafter.

23The appellant also testified that she has used other alternative transportation during the impoundment period, specifically friends have on occasion provided transportation. The appellant testified that she is doing work on the residence where she is staying in lieu of paying rent so has been able to do some work during the impoundment period. The appellant also testified that she is the only person in her household and has public transit available to her. The appellant’s medical appointments during the impoundment period have been rescheduled. Because the appellant had alternative transportation, it is unlikely that the appellant would be able to meet the legislated test for “exceptional hardship” which requires that the appellant prove there are no alternatives to the impounded vehicle before other factors are considered.

24To 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 she 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

25As 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:

26The appellant’s motion to extend the time to file her appeal is denied. The appeal shall not proceed.