Licence Appeal Tribunal File Number: 15130/MVIA

In the matter of 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, and in the matter of a Notice of Motion for an order to extend the time to file the appeal pursuant to s. 9 of Ontario Regulation 631/98.

Between:

Corbett Morrison

Appellant

And

Registrar of Motor Vehicles

Respondent

MOTION ORDER

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Corbett Morrison, self-represented

For the Respondent:

Leila Pereira, Agent for the Registrar

Heard by Teleconference:

September 22, 2023

OVERVIEW

1Corbett Morrison (the “appellant”) appeals the impoundment of his 2010 Nissan Frontier pickup truck under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”) on July 21, 2023 when the driver of the vehicle, Richard Morrison, father of the appellant, was found to be driving it while his licence was suspended due to a prescribed Criminal Code conviction.

2The appellant filed a Notice of Appeal with the Tribunal on August 16, 2023, 11 days after the end of the 15-day appeal period prescribed by Section 9 of Ontario Regulation 631/98 (the “Regulation”).

3The appellant also filed a Notice of Motion on August 16, 2023, seeking an order that the Tribunal grant an extension of the time limit so that his appeal may be heard.

4If, after hearing the parties’ submissions on the motion, I grant the extension, the hearing on the substantive issues in the appeal can proceed, with the parties’ consent, immediately following the motion hearing.

5After a brief recess at the conclusion of the motion hearing, I granted the extension of the appeal period, and invited the parties to indicate whether they wished to proceed directly to the hearing. They both submitted they were prepared to proceed to the hearing. These are my reasons for granting the motion.

ISSUE

6Should the Tribunal grant an extension of time to allow the appellant to appeal outside of the legislated timeline?

RESULT

7The extension is granted, and the appeal may proceed.

ANALYSIS

Motion to extend the time for appeal

8The Regulation provides that an appeal under s. 50.2 of the HTA must be filed with the Tribunal no later than 15 days after the date of a motor vehicle impoundment. The appellant did not file his appeal until 26 days after the date the vehicle was impounded. For his appeal to be heard, I must first decide if an extension to the time limit should be granted.

9Under s. 7 of the Licence Appeal Tribunal Act, 1999, the Tribunal may extend a time limitation under the HTA or Regulation to file an appeal if the Tribunal is satisfied there are reasonable grounds for doing so.

10The grounds for considering an extension are articulated in Manuel v. Registrar of Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492. On a motion to extend the time to appeal, the Court determined that the overriding consideration is whether the justice of the case requires that an extension be granted. The factors to consider in deciding the justice of the case are:

• a genuine intention to appeal within the appeal period,
• prejudice to the other party,
• the merits of the appeal, and
• the length of the delay.

11The analysis requires a balancing of these factors applied to the facts. No one factor takes precedence over the others. The overriding consideration is whether the “justice of the case” requires that an extension be granted.

12Having considered the parties’ submissions on the motion, I conclude that the justice of the case requires an extension of the time limit for the following reasons.

Genuine intention to appeal within the appeal period

13The appellant testified that from the day he learned of his vehicle being impounded, he began searching to see how he could appeal and get his vehicle released. The vehicle was impounded on a Friday. The next business day, the following Monday, he contacted the OPP detachment and was told that he should speak with a Justice of the Peace (“JP”) to see about appealing for an early release of the vehicle. The next available office hours for the JP in his area was not until the following Friday, July 28, 2023. Only on that day, did he learn that the Licence Appeal Tribunal (the “Tribunal”), and not the JP, would receive appeals for early release from vehicle impoundments.

14The appellant said that he contacted the Tribunal by phone that very day, on the 28th, received the appropriate forms, and began completing them on August 3rd, the following week. He submitted that the Tribunal did not mention the 15-day appeal period.

15The appellant completed the appeal forms on August 9, 2023 but then upon attempting to file them with the Tribunal, learned it was beyond the 15-day limit and he would need to also file a notice of motion seeking an extension of time beyond the statutory limit. He completed the motion documents and filed his motion and appeal on August 16, 2023.

16The appellant stated that he did not have a copy of the Notice to Registrar (“NTR”) that is customarily issued by the police officer who detained the vehicle for impoundment. The back page of the NTR includes the information the owner of the vehicle would need to commence an appeal of the impoundment. His father, who was driving the car at the time, provided the appellant with photo images of the only documents he received from the police officer, a Notice of Motor Vehicle Impoundment and Release (“NMVIR”), and Summons to Defendant. The appellant did not produce these documents for the motion hearing.

17The respondent confirmed that the NMVIR is a document that is intended to be used for 7 or 14-day impoundments, not the 45-day impoundment occasioned by an impoundment arising from a Criminal Code related driving offence, and that the NMVIR contains no information relating to appeals of an impoundment.

18In response to the respondent’s question, the appellant admitted that he had not pursued any other avenues to learn how to appeal the impoundment. He only followed the direction given him by the OPP.

19The respondent submitted that the appellant failed to conduct any additional research about appealing impoundments and that had he done so, he would likely have learned enough to file an appeal within the 15-day limit.

20While the respondent’s argument makes some sense, it presupposes a potential appellant would have the intuition to set aside what a person in authority had conveyed to them, and then do their own research. Not all appellants would be inclined to do so, especially when they, as many do, attach great credibility to the instructions of police officers.

21I find the appellant had a genuine intention to appeal the impoundment within the time limit but was impeded in doing so as result of inaccurate information conveyed at the time of the impoundment.

Prejudice to the other party

22The respondent submitted that the delay in filing the appeal would prejudice the respondent since a favourable outcome for the appellant could potentially require the Registrar to reimburse 11 additional days of impoundment fees at a cost of between $60 to $80 per day i.e. up to approximately $880.00. It opposes granting an extension.

23I find there is some potential prejudice to the respondent, but it is proportionally not significant, and I give it less weight across the four factors under consideration. The monetary amount cited by the respondent would only apply if the hearing outcome favoured the appellant. In addition, the appellant filed his appeal only 9 days after the appeal period, not 11 days. Since the appeal period ended on Saturday, August 5, 2023, a day the Tribunal is closed, the due date is extended, pursuant to section 89(2) of the Legislation Act, 2006, to the next business day which, owing to the Civic Holiday Monday, would have been Tuesday, August 8, 2023. Even if the appellant succeeds in his appeal, 9 days at $80 per day, or $720.00 is less than one quarter of the overall expense of a vehicle impoundment. It therefore adds proportionally less weight to the submission that a delay would result in prejudice against the respondent.

24Moreover, the evidence for the hearing is yet to be considered and is not before me in considering the motion seeking an extension. From this vantage point I can only speculate on the hearing outcome. The potential prejudice to the respondent is further diminished by the speculative nature of the respondent’s submission.

25I find there is little prejudice to the respondent in granting the extension.

Merits of the Appeal

26To consider the justice of the case for an extension of the time limit based on the merits of the appeal, I must only be satisfied that there is some merit to the appeal, based on the evidence before me. In short, are the grounds for appeal at least arguable and not frivolous. This is not a high bar, nor is it an exercise in prejudging the hearing outcome.

27In his Notice of Appeal, the appellant describes the financial hardship that has resulted from the impoundment of the vehicle. Under the exceptional hardship ground, s. 50.2(3)(d) of the HTA, and pursuant to s. 10(1) of the Regulation, in certain circumstances, financial or economic loss can be considered in meeting the exceptional hardship ground.

28I therefore find there is some merit in the appeal.

Length of Delay

29The appeal was filed 9 days after the deadline. Under normal circumstances an appellant has 15 days to appeal. But in this case, the first 7 days of the appeal period were lost because police directed the appellant to the wrong office and, as discussed above, the driver did not receive the correct impoundment form. After the appellant eventually reached the Tribunal, one week after the impoundment, there were only 10 calendar days, but only 6 business days (July 31 to August 8) to file his appeal on time.

30The appellant submitted that he did not become aware of the 15-day limit until August 9, 2023 when he attempted to file his appeal, despite the Tribunal’s Notice of Appeal form making mention of the 15-day limit at the bottom of page 2.

31Though the Notice of Appeal form conveyed the correct due date, I find that most of the 9-day delay can be attributed to the first week of the appeal period being lost to the appellant over having received the wrong impoundment form and incorrect instructions from the police officer to see a JP.

32Under the circumstances the length of delay in this matter does not impede the justice of the case and I find it should not prevent an extension of the time limit to hear the appeal.

33I find that the justice of this case requires that an extension be granted because the appellant genuinely intended to file on time, there is little prejudice to the other party, there is merit to the appeal, and delay in filing the appeal is not unreasonable under the circumstances.

ORDER

34The extension to the time limit to appeal the impoundment pursuant to s. 9 of the Regulation is granted.