Robbyn L. Burke v. Registrar of Motor Vehicles, 2023 CanLII 77326

Licence Appeal Tribunal File Number: 15049/MVIA

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:

Robbyn L. Burke Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

ADJUDICATOR: Jeffery Campbell, Vice-Chair

APPEARANCES:

For the Appellant: Robbyn Burke, Self-represented For the Respondent: Andrew Sookhoo, Agent

Heard by teleconference: July 21, 2023

OVERVIEW

1Robbyn Burke (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 2019 Mitsubishi Outlander (the “vehicle”) on May 26, 2023. At the time of the impoundment, the vehicle was being driven by Joshua Bayliss (the “driver”), whose driver’s licence was suspended due to a failure to complete a remedial measures program as a result of a prior Criminal Code conviction of driving with a blood alcohol concentration over the prescribed limit.

2The appellant filed the Notice of Appeal on July 11, 2023, 31 days after the required date of filing. The respondent opposed the motion for an extension of time.

3The appellant’s grounds of appeal are that the vehicle was stolen and 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 hear 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, was the vehicle stolen at the time it was detained in order to be impounded and will the impoundment result in exceptional hardship as that term is defined in the Act and O. Reg. 631/98 (the “Regulation”)?

RESULT

6The motion to extend the deadline for the filing of the appeal is granted.

7The appellant has proven on a balance of probabilities that her vehicle was stolen at the time of the impoundment. As a result, there is no need to decide on the issue of exceptional hardship.

ANALYSIS

A. Should the appeal deadline be extended?

8I 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 July 12, 2023.

9According 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.

10In the appellant’s case, the vehicle was impounded on May 26, 2023. The appeal deadline was June 10, 2023 and the appellant filed her appeal on July 11, 2023.

11Pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, 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.

12Determining whether there are reasonable grounds for an extension is not an exact formula. Pursuant to the Divisional Court decision in 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.

13The analysis requires a balancing of these factors applied to the specific facts of each case. No one factor takes precedence over the others. The overriding consideration is whether the “justice of the case” requires that an extension be granted.

14Taking 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

15I find that the appellant had a bona fide intention to appeal before the expiration of the appeal period.

16In the prescribed course of events, upon an impoundment of a vehicle pursuant to s. 55 of the Act, the impounding police provides the driver of the vehicle with a Notice of Impoundment and Release (the “NOIR”), on the back page of which is information on how to appeal the impoundment. The officer is then to enter the impoundment into the SIMS system which alerts the Ministry of Transportation (the “Ministry”) of that impoundment. The Ministry then produces a Notice to Registrar (the “NTR”), again on the back page of which is information on how to appeal the impoundment. That NTR is then sent to the owner of the vehicle. In this case, neither the NOIR or the NTR were produced until July 12, 2023, 47 days after the impoundment.

17In the interim, the appellant investigated as to the whereabouts of the vehicle and discovered, on June 3, 2023, that it had been impounded and was located at Fred’s Towing in Keswick, Ontario. Upon speaking to an employee at Fred’s Towing, she was advised that she could appeal the impoundment and was advised to mail the Notice of Appeal to the Tribunal, rather than emailing it. The appellant then completed a Notice of Appeal and mailed it to the Tribunal, along with a draft for the required fee, on June 6, 2023.

18The Tribunal, however, had no record of receiving the mailed Notice of Appeal or draft.

19On July 12, 2023, two days after the scheduled date of release for the vehicle, and having received no response from the Tribunal, the appellant contacted the Tribunal to receive guidance on what was to occur. She also sent the screen shots of the Notice of Appeal of June 6, 2023 and the draft for payment to the Tribunal. The Tribunal then advised the Ministry that they had received the Notice of Appeal and requested the Ministry to check to see if the impoundment of the vehicle had been registered on SIMS. The Ministry advised the Tribunal that it had not. It was only at that point, on July 12, 2023, that the NTR and NOIR were produced.

20Based upon the above, I am satisfied that the appellant had a bona fide intention to appeal within the appeal period. In fact, had it not been for the efforts of the appellant, the Ministry would have never been informed of the impoundment pursuant s. 55 of the Act. It is evident that the delay in the filing of the appeal was neither the fault of the appellant nor the respondent in this matter, but due to the breach of protocol by the York Regional Police Service officer who detained and impounded the vehicle.

Length of the Delay

21The length of the delay was a matter of 31 days, which is substantial. However, as stated above, this was not the fault of the appellant

Prejudice to the other party

22The respondent submitted that the prejudice to the Registrar would be added cost of the impoundment for an extra 31 days. I agree that this is prejudicial to the respondent. However, this prejudice was caused by a third party and not by the appellant. I am reluctant to penalize the appellant due to the oversights of that third party.

Merits of the appeal

23It 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.

24The appellant intends to rely on the ground of appeal that the vehicle was stolen and that the impoundment will result in exceptional hardship.

25The appellant advised that she knew the driver through work. On May 6, 2023, she loaned the vehicle to the driver for a week as he was unable to rent a vehicle due to funds not being available on his credit card. The driver paid the appellant for the use of vehicle so that she could afford to access ride sharing for that week. He was to return the vehicle on May 12, 2023.

26The appellant submitted that, once the vehicle was not returned on May 12, 2023, she contacted the driver a number of times. She advised the driver that he was not driving the vehicle with her consent and wanted the vehicle returned or she would report it as stolen. The driver eventually stopped answering her calls and texts. The appellant submitted that she did contact the police and reported the vehicle as having been stolen.

27On the basis the appellant’s submissions regarding the vehicle and her circumstances, I find that there is some merit to the ground of the vehicle being stolen.

28Overall, the justice of the case supports extending the appeal deadline. As a result, I extend the deadline to appeal to July 12, 2023, and my decision on the merits of the appeal are set out below.

B. Was the vehicle stolen at the time that it was impounded?

29The 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 completion of a remedial program which was never completed. I am therefore satisfied that the vehicle was validly impounded.

30With respect to the issue of whether the vehicle was stolen, as previously stated, the appellant loaned the vehicle to the driver on May 6, 2023 with the anticipation that it would be returned on May 12, 2023. She testified that, for two weeks after May 12th, she contacted the driver a number of times, attempting to have him return the car. She advised that she advised the driver that she was going to report the vehicle as stolen. The driver initially responded with reasons why he was not returning the vehicle and eventually ceased responding to her contact attempts.

31The appellant testified that she did contact the York Regional Police Service on different dates in late May and in June reporting the vehicle as being stolen. She spoke to two Constables, the names of whom are being omitted for the purpose of this decision. One constable advised her to wait to see if the driver would pay the impound fee prior to having him charged with theft while the other officer advised her that they would send someone to speak with her about the charge. No officer subsequently was sent to speak to the appellant.

32The respondent submitted that the appellant voluntarily loaned her vehicle to the driver and did not report the vehicle as stolen for at least two weeks. The respondent also presented the plate search for the vehicle, dated July 19, 2023, which does not indicate the vehicle as stolen.

33The word “stolen” is not defined in the Act.

34The Divisional Court in Marshall v. Ontario (Registrar of Motor Vehicles) [2002] O.J. No. 745 (Div. Ct.), (“Marshall”) has provided the following definition of “stolen” in the impoundment context. In that case, the Court stated that a vehicle is “stolen” within the meaning of the Act:

… when it is taken without the owner’s consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.

35In impoundment cases, the burden is on the appellant to prove that the vehicle was stolen. The proof must be established on a balance of probabilities.

36In this case, the only documentary evidence before the Tribunal with respect to whether the vehicle was stolen is the plate search which does not show the status as stolen. However, the Ministry would only be aware to include this status on the plate search if it was reported to them by the same police service who failed to advise them of the impoundment of the vehicle. Given that, I put little weight in the plate status report.

37I find the appellant to be sincere in her testimony, and concise in her recall of events. She was also proactive. It was only through the appellant’s efforts that she discovered that the vehicle was impounded, that she could appeal that impoundment and that the Ministry was made aware of the impoundment. It is obvious that the appellant was the object of a failed system respecting the notification of the impoundment of the vehicle and of the process to appeal that impoundment. There is no reason to believe that that same system did not fail her with regards to her reporting the vehicle as having been stolen and in the laying of charges in regards to the vehicle being stolen, accounting for a lack of documentary evidence with respect to the same.

38In relation to whether the vehicle was stolen as defined by Marshall, I agree with the respondent in that the appellant willingly gave the vehicle to the driver. However, the appellant’s evidence is that she gave that vehicle for the set period of May 6, 2023 to May 12, 2023. After that date, the driver refused to return the vehicle to the appellant and ceased communicating with the appellant, even to the point of failing to advise the appellant of the impoundment of her vehicle. Based on the appellant’s evidence, I find that the driver intended to deprive the appellant of the use of the vehicle whether temporarily or permanently.

CONCLUSION

39I conclude that the driver did not intend to return the appellant’s vehicle within an agreed upon time frame, and that the appellant made efforts to report the vehicle as stolen. I therefore find that, on a balance of probabilities, the appellant has proven that the vehicle was stolen at the time of the impoundment.

40Given that I find that the vehicle was stolen at the time of the impoundment, it is unnecessary for me to consider the ground of exceptional hardship.

I ORDER AS FOLLOWS:

41The appeal deadline is extended to July 12, 2023.

42I order the respondent to release the appellant’s vehicle.

LICENCE APPEAL TRIBUNAL

Jeffery Campbell, Vice-Chair