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 the Act.
Between:
Kyle Edwards
Appellant
and
Registrar of Motor Vehicles
Respondent
MOTION DECISION AND ORDER
ADJUDICATOR:
Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant:
Kyle Edwards
For the Respondent:
Andrew Sookhoo, Agent
Heard by Teleconference:
August 8, 2023
REASONS FOR MOTION DECISION AND ORDER
OVERVIEW
1The appellant, Kyle Edwards, seeks an extension of time to file an appeal for the 45-day impoundment of his 2017 Ford pick up truck (the “vehicle”). This is a work vehicle that is part of a fleet of 8 to 10 trucks used for the appellant’s business. The subject vehicle was being driven by an employee of the appellant whose licence was under suspension at the time for a Criminal Code conviction. I shall refer to the driver as S.D.
2S.D. took the vehicle without permission while the appellant was out of the province. Hence, the appellant seeks this motion to extend the deadline to appeal the impound because he was unaware of his ability to appeal.
3S.D. informed the appellant of the impoundment over the telephone but did not share any information on his option to appeal. The appellant states that he first learned about his option to appeal the impoundment from a police officer he spoke with upon his return to Ontario.
4The appellant’s vehicle was impounded on June 30, 2023, after police found S.D. to be operating the vehicle while under suspension. The appellant returned to Ontario on or about July 6, 2023. The appeal was not filed until July 21, 2023, which is after the 15 day period allowed for filing an appeal and 21 days after the initial date of impoundment.
5Subsection 55.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act” or the “HTA”) allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the driver’s licence of the person who is driving a vehicle is under suspension for certain Criminal Code offences. The vehicle was impounded pursuant to this subsection of the Act.
ISSUE
6The issue to be determined is whether the appellant has established reasonable grounds to support an extension of time.
CONCLUSION
7On the evidence before me at the hearing, I find that the appellant has adequately established reasonable grounds to support an extension of time for him to appeal the 45-day impoundment of her vehicle.
LAW
8Pursuant to section 9 of Ontario Regulation 631/98 issued under the Highway Traffic Act, R.S.O. 1990, c. H. 8, (“the Act”) an appeal of an impoundment must be filed within 15 days after the day the vehicle was detained together with the fee established by the Tribunal.
9The Tribunal has jurisdiction to extend the time for filing of an appeal pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Schedule G, which reads:
Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal under section or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,
a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and
b) give the directions that it considers proper as a result of extending the time.
10In 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 in making that determination 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.
11The onus is on the appellant to establish that there are grounds for the granting of the extension. My analysis will include a balancing of the conclusions reached when applying the facts of the case to the factors.
ANALYSIS
The existence of a bona fide intent to appeal
12The appellant did demonstrate a bona fide intention to appeal this matter as soon as he learned that the option existed. Although this was not completed within 15 days of the impoundment, I find that the appellant acted soon after his conversation with the police officer. I accept that the appellant was at a disadvantage being outside of the province when his vehicle was taken, possibly without his knowledge. The appellant also testified that he did not receive the impoundment notice while he was outside of the province and was only informed by S.D. by phone that he received tickets at roadside.
13The respondent states that a Notice to Registrar would have been mailed to the appellant’s place of employment. It is reasonable to expect that the appellant would not have access to his mail during the time he was away.
The length of delay
14The appellant’s notice of appeal was received 21 days after his vehicle was first impounded (6 days after the 15-day period specified in s. 9 of the Regulation). I find this not to be an extraordinarily significant period of delay. Furthermore, I find that once the appellant found out about his right to appeal, he filed with minimal delay, and provided reasons and the remedy he is seeking.
Prejudice to the other party
15Given the fact that this appeal is being made shortly after the deadline, I find that should the extension be granted, the Registrar would not be prejudiced. I acknowledge that the respondent also benefits from a hearing without delay. This is due to the fact that the appellant’s success on appeal would determine the total number of days the vehicle would be impounded. The longer the delay, the greater the cost to the Registrar.
Merits of the appeal
16In his written reasons for appeal, the appellant states that 6 people rely on the vehicle to go to work every day and the driver that was driving was not authorized to be driving. This suggests that the appellant would be relying on the basis of exceptional hardship and the vehicle was stolen at the time of impound.
17There is a specific test for exceptional hardship that is set out in the Regulation. The first part of the test requires an appellant to show, on a balance of probabilities, that no alternative to the impounded vehicle is available. If the appellant is able to show this, then the Tribunal must consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle.
18The Tribunal would also have to consider whether the vehicle was stolen at the time of impound since the appellant is adamant that he did not provide permission for S.D. to take his vehicle.
19While I find that the appellant has no reasonable chance of success on appeal by relying on exceptional hardship due to the fact that his business continues to operate uninterrupted and there are multiple alternate vehicles, there is still the possibility that the appellant may be able to argue his case that the vehicle was stolen at the time. I make no finding on this issue, which can only be determined following a hearing.
20Applying the criteria established in s. 7 of the LAT Act, I am satisfied that the justice of the case requires that an extension of time be granted in the circumstances of this case.
ORDER
21For the reasons set out above, pursuant to the Tribunal’s authority under s.50.2(5) of the Act, I grant the appellant’s motion to extend the time for filing of the appeal.
LICENCE APPEAL TRIBUNAL
Raymond C. Ramdayal, Member
Released: September 12, 2023