Shawna Melanson v. Registrar of Motor Vehicles, 2023 CanLII 93033

Licence Appeal Tribunal File Number: 15117/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 the Act.

Between:

Shawna Melanson

Appellant

and

Registrar of Motor Vehicles

Respondent

MOTION DECISION AND ORDER

ADJUDICATOR:

Raymond C. Ramdayal, Member

APPEARANCES:

For the Appellant:

No appearance

For the Respondent:

Andrew Sookhoo, Agent

Heard by Teleconference:

August 23, 2023

REASONS FOR MOTION DECISION AND ORDER

OVERVIEW

1The appellant, Shawna Melanson, seeks an extension of time to file an appeal for the 45-day impoundment of her 2016 Jeep Patriot (the “vehicle”). The vehicle was impounded pursuant to subsection 55.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act” or the “HTA”).

2The appellant filed her appeal on August 3, 2023, 31 days after the date of the impoundment, and 16 days after the expiry of the legislated 15-day appeal period set out in section 9 of Ontario Regulation 631/98 (the “Regulation”), a regulation under the HTA.

3On August 3, 2023, the appellant also filed a Notice of Motion seeking that the Tribunal grant an extension of time so that she could proceed with her appeal outside of the legislated timeline.

4The appellant failed to call in at the specified time for today’s Motion hearing. This is the second Motion hearing that the appellant has failed to attend. At the last hearing, the adjudicator from the Tribunal ordered that today’s motion hearing be marked peremptory on the appellant. Therefore, this hearing will proceed in the absence of the appellant. Submissions were invited from the Registrar of Motor Vehicles (the “respondent” or “Registrar”).

ISSUE

5The issue to be determined is whether the appellant has established that the justice of the case requires that the time for filing the appeal be extended. Since the appellant did not attend, I will rely on submissions from the respondent to make this determination.

RESULT

6On the evidence before me at the hearing, I find that the appellant has not submitted enough information in the Notice of Appeal or Notice of Motion to establish that the justice of the case requires that the time for filing the appeal be extended. The motion is therefore dismissed as well as the appeal in this matter.

ANALYSIS

7Pursuant to section 9 of Ontario Regulation 631/98 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.

8The 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.

9In 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.

10The onus is on the appellant to establish that the justice of the case requires that the extension be granted. My analysis of the above factors will include a balancing of the conclusions reached when applying the facts of the case as presented by the respondent.

The existence of bona fide intent to appeal

11I find the appellant did not demonstrate a bona fide intention to appeal this matter within 15 days of the impoundment. It appears that she was notified of the impoundment in a timely manner and the failure to file an appeal on time was an oversight on her part.

12The respondent provided a Notice of Impoundment and Release form as evidence that the appellant was informed of her right to appeal to the Tribunal and the specific steps she could take to exercise that right within the appropriate timelines. I received no evidence to indicate that this information was not served on the appellant nor do I have any indication that other correspondence, including today’s Notice of Motion Hearing, was not received by the appellant.

The length of delay

13The appellant’s notice of appeal was received 31 days after her vehicle was first impounded (16 days after the 15-day period specified in s. 9 of the Regulation). I find this to be a significant period of delay during which time information about the right to appeal the impoundment was available through the Licence Appeal Tribunal (LAT) website, Ministry of Transportation (MTO) or simply contacting the vehicle impoundment facility. I find that the appellant did not provide any reasonable excuse for the delay in filing her Notice of Appeal and Notice of Motion applications.

Prejudice to the other party

14Given the fact that this appeal is being made within the impoundment period, I find that should the extension be granted, the Registrar would not be prejudiced, however, it still benefits from having a hearing without delay.

Merits of the appeal

15Without oral or written testimony from the appellant, it is difficult to determine if her grounds of exceptional hardship would have a reasonable chance of success should the appeal be allowed to continue to a hearing.

16In her written reasons for appeal, the appellant states that she was unaware that her boyfriend did not have a valid driver’s licence when he used her vehicle. I do not have enough information to determine if the appellant exercised due diligence. The respondent also noted that there is no documentation that the appellant reported the vehicle stolen. Assuming the respondent meant a police report, I note, however, that making such a report is not determinative of whether the impounded vehicle was stolen for the purposes of this appeal (e.g. it is easy to contemplate that a person would not want to imperil another with formal, legal consequences and yet the vehicle is still stolen). It is unclear whether the vehicle was taken without permission or if the appellant knowingly allowed her boyfriend to drive the car.

17I do note that the appellant wrote in her reasons for appeal that she cannot afford to pay the impound fee. This implies that the appellant may consider this as a ground of exceptional hardship. Financial hardship due to the cost of the impoundment itself is generally not a factor that the Tribunal may consider in determining the issue of exceptional hardship, though each case is decided based on the evidence at the hearing. The appellant did not present any evidence which would persuade me to conclude that she might be successful in her appeal on the ground of exceptional hardship.

18In light of this, I find that the appellant has no reasonable chance of success on appeal.

19Applying the criteria established in s. 7 of the LAT Act, I am not satisfied that the justice of the case requires that an extension of time be granted in the circumstances of this case.

ORDER

20For the reasons set out above, I dismiss the appellant’s motion to extend the time for filing of the appeal. The appeal is dismissed.