Licence Appeal Tribunal File Number: 15205/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:

Jonathan Drew-Tucker

Appellant

and

Registrar of Motor Vehicles

Respondent

MOTION ORDER

ADJUDICATOR: Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant: Joy Drew-Tucker, Appellant’s mother

For the Respondent: Sadia Ashraf and Ian Sookram, Agent

Heard by Teleconference : September 14, 2023

ORDER ON MOTION

OVERVIEW

1Jonathan Drew-Tucker (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 his 2015 Ford SUV (the “vehicle”) for 45 days on August 1, 2023 by the Registrar of Motor Vehicles (the “respondent”).

2The appellant did not attend the hearing. The appellant’s mother Joy Drew-Tucker (“Ms. Drew-Tucker”) attended and said that the appellant was currently in the hospital and she would represent him and provide evidence at this motion hearing. No objection to Ms. Drew-Tucker representing the appellant was made by the respondent and I allowed Ms. Drew-Tucker to represent him at the hearing because she said the appellant was unable to attend because he is hospitalized.

3Ms. Drew-Tucker said at the hearing that the appellant’s proposed grounds of appeal, should the appeal be allowed to proceed, would be three grounds. Firstly, the appellant appeals on the ground 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 because he was not driving his vehicle but was “resting” in the vehicle after shopping. Secondly, the appellant appeals on the ground that the appellant 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. Thirdly, the appellant appeals on the ground that the impoundment will result in exceptional hardship to him because he cannot afford to pay for any impoundment fee and because he has “lost opportunity and no access to pharmacy and appointments, went into major withdrawal resulting in hospital”. The Notice of Appeal also states that the appellant desperately needs his car for family.

4The respondent opposed motion for extension of time.

issue

5The issue in this hearing is whether the Tribunal should extend the time for the appellant to file his appeal.

RESULT

6The appellant’s motion to extend the time to file his appeal is denied. The appeal shall not proceed.

ANALYSIS

Should the Tribunal extend the time for the appellant to file an appeal?

7Section 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.

8The appellant’s motion is to extend the time for filing an appeal. 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.

9To be successful on this motion the appellant must show that there are reasonable grounds for the extension and for the 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.

10The 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.

11I will consider these factors below in light of the evidence of the appellant and his submissions at the hearing.

(i) Bona fide (good faith) intention to appeal within the appeal period

12I find that there is insufficient evidence that the appellant had a good faith intention to appeal within the appeal period.

13Ms. Drew-Tucker testified that she completed the Notice of Appeal in her handwriting for the appellant, based on what the appellant told her to write and had him sign it on August 5, 2023. Ms. Drew-Tucker said she did not send the Notice of Appeal to the Tribunal within the legislated time limit because she forgot about the document given that she was very concerned about the appellant’s health, the appellant was living with her and she was taking him to hospital and other medical appointments, and also looking after the appellant’s two young children. Ms. Drew-Tucker also testified that the delay in sending in the Notice of Appeal was on her because she did not know about the 15 day appeal period.

14However, there is no corroborating sworn testimony or sworn statement that the Notice of Appeal was signed by the appellant on August 5, 2023 and I do not find the evidence of Ms. Drew-Tucker credible on this point. The Notice of Appeal was not received by the Tribunal until August 30, 2023. The appellant or Ms. Drew-Tucker could have put any date they wished on it. Without supporting corroboration, which I find is lacking here, the date on the Notice of Appeal is not evidence of an intention to appeal within the appeal period.

15Ms. Drew-Tucker testified that the appellant was ill prior to the impoundment, was “quite sick” on the day of impoundment, and since the impoundment has been “very, very sick”, has been in a methadone treatment program, and is currently in Sunnybrook Hospital. Ms. Drew-Tucker testified that after the impoundment occurred she took the appellant to three different hospitals in three different municipalities, one of which kept the appellant overnight on August 7 or 8, 2023 and that he was admitted to Bellwood treatment facility on August 15, 2023. Ms. Drew-Tucker testified that the appellant was “not capable of thinking clearly” all of August, 2023 because of his medical condition.

16However, when asked, Ms. Drew-Tucker said she did not know what diagnosis the appellant has been given and could not provide dates of the hospital visits, or any documents showing any medical treatment provided, diagnosis made, names of treating physicians, or admission to or discharge from any hospital.

17Further, Ms. Drew-Tucker confirmed in her testimony that the appellant had successfully appealed another impoundment to the Tribunal approximately nine months ago and complied with the legislated time frame appeal at that time.

18I find that there is no medical evidence before me that establishes that the appellant is suffering from a medical condition that prevented him from filing his Notice of Appeal within the legislated time frame. To the contrary, the testimony of Ms. Drew-Tucker was that the appellant told her what to say in the Notice of Appeal and he signed it. Further, the fact that the appellant had recently successfully appealed another impoundment to the Tribunal within the legislated time frame tends to indicate that he is familiar with the Tribunal appeal process.

19I find that the late filing of the Notice of Appeal with the Tribunal was the result of his own inaction. The appellant’s Notice of Motion dated August 30, 2023 states that the late filing was because “circumstances were out of my control”. However, Ms. Drew-Tucker testified that the appellant was staying with her after the vehicle was impounded, she was taking care of him and completed the Notice of Appeal as he instructed her. The appellant’s statement in his Notice of Motion that he was not capable of dealing with his affairs is not supported by any medical evidence. The testimony of Ms. Drew-Tucker that he was ill is not supported by any medical evidence or corroborated by the testimony of any other person. Although there are several text messages attached to the appellant’s Notice of Appeal, these texts are dated August 10, 2023 and establish only that information was exchanged between Ms. Drew-Tucker and a representative of Bellwood, a person who does not indicate he is a physician.

20Although the appellant indicated in his Notice of Motion that he “had no access to all info etc. required” to file his appeal, Ms. Drew-Tucker confirmed that the appellant had been given written notice of the impoundment after it occurred.

Length of the delay

21The time for appeal expired August 15, 2023. The appellant’s Notice of Appeal and Notice of Motion were sent to the Tribunal, August 30, 2023, some 15 days late.

22I find there has been substantial delay. I find it is more likely than not that the appellant was aware of the time-limited right of appeal because he had recently filed a similar appeal with the Tribunal and had been given paperwork about the impoundment. Further, if unsure, the appellant could have obtained information about his appeal rights from the publicly available information on the internet or sought advice. There is no evidence that the appellant attempted to file his appeal on time.

23However, this is only one of the factors to be considered on the motion.

(i) Prejudice to the other party

24I am of the view 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.

(ii) Merits of the appeal

25The 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’s representative confirmed at this hearing that his grounds of appeal are under s. 50.2(3)(b),(c) and (d), specifically that the driver’s licence of the driver of the vehicle at the time of impoundment was not then under suspension, the appellant exercised due diligence in attempting to determine that the driver’s licence of the driver of the vehicle at the time of impoundment was not then under suspension, and that the impoundment will result in exceptional hardship because he needs his vehicle for work and personal use such as caring for his children and also because the impoundment fee will cause financial hardship to him.

26While 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.

27Firstly, the appellant appeals on the ground 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 because he was not driving his vehicle but was “resting” in the vehicle after shopping. This ground of appeal has little chance of succeeding. Ms. Drew-Tucker conceded in her testimony that on the day of the impoundment, she does not know what happened because she was not there and all her information in this regard comes from the appellant. Even though Ms. Drew-Tucker claimed to know the appellant’s friend that was driving the vehicle just prior to the impoundment, she could not give his name, only a nickname. Further, the Notice of Registrar dated August 1, 2023 filed by the respondent at the hearing indicates that the appellant was the driver at the time of the impoundment and that the police impounded the vehicle because it was being driven on a highway in Vaughan, Ontario by the appellant.

28Secondly, the appellant appeals on the ground that the appellant 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. Again, Ms. Drew-Tucker provided no information about how this might be established at a hearing. There is little likelihood that this ground of appeal will be successful.

29Thirdly, the appellant appeals on the ground that the impoundment will result in exceptional hardship to him because he cannot afford to pay for any impoundment fee and because he has “lost opportunity and no access to pharmacy and appointments, went into major withdrawal resulting in hospital”. The Notice of Appeal also states that the appellant desperately needs his car for family. Ms. Drew-Tucker testified that the appellant has not required the vehicle during the impoundment period, which expires September 15, 2023, because he has not been working and has been dealing with his medical issues during the impoundment period. Ms. Drew-Tucker said she has taken him to medical appointments, provided groceries and looked after the children during the impoundment period. Given that the evidence tends to indicate that the appellant had alternative transportation during the impoundment period, it is unlikely that the appellant would be able to meet the legislated test for “exceptional hardship” which is detailed and specific.

30To 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 he had a bona fide (or good faith) intention to appeal within the time for appeal, that there has been substantial delay in filing the appeal, there is likely to be prejudice to the respondent, and the appeal is unlikely to succeed.

31As 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:

32The appellant’s motion to extend the time to file his appeal is denied. The appeal shall not proceed.