Licence Appeal Tribunal File Number: 15195/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 of the Act.

Between:

Magdalena Loor

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Rebecca Hines

APPEARANCES:

For the Appellant:

Magdalena Loor, Appellant Stephanie Lucas, Spanish Interpreter

For the Respondent:

Andrew Sookhoo, Agent for the Registrar

Heard by Teleconference:

September 22 and October 6, 2023

OVERVIEW

1Magdalena Loor (the “appellant”) filed a motion seeking an extension of time to file an appeal of the 45-day impoundment of her 2006 Dodge Truck on July 14, 2023. At the time of the impoundment, her son was driving the vehicle while his driving privileges were under suspension resulting from a prescribed Criminal Code conviction.

2The appellant submits the impoundment of her vehicle results in exceptional hardship and that her motion should be granted because she did not know she could appeal the impoundment and it took time to figure out that she could appeal.

3The appellant did not file her appeal until August 30, 2023, which is after the 15-day period allowed for filing an appeal and 47 days after the initial date of impoundment.

4Subsection 55.1 (1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) 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.

5The respondent opposed the appellant’s motion and submitted that the appellant was sent notice of the impoundment on July 14, 2023, but did not appeal for 47 days. The appellant should have known she could appeal and the statutory deadline for doing so and has not provided a reasonable explanation for not filing her appeal by the deadline.

ISSUES

6The issue to be determined is whether the appellant has established reasonable grounds to support an extension of time.

RESULT

7On the evidence before me at the hearing, I find the appellant has failed to establish reasonable grounds to support an extension of time and therefore the motion is dismissed. The appeal is dismissed.

ANALYSIS

8Pursuant to section 9 of Ontario Regulation 631/98 made under 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 an appeal pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12., Schedule G.

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.

11[No single factor determines the analysis. The onus is on the appellant to establish that the justice of the case requires that the extension be granted.

The existence of a bona file intent to appeal

12I find that the appellant did not have a bona fide intention to appeal before the expiration of the appeal period.

13The appellant testified that her son was the driver on the date the vehicle was impounded, and he was arrested. As a result, there was a delay in her receiving notification about the impoundment because she did not receive any paperwork and was unaware of the deadline to file an appeal. She submits she followed up with the police and tow truck company who kept bouncing her back and forth and did not provide any information that she could appeal. The appellant’s testimony was unclear about when this communication took place.

14The appellant submits that she did not receive the Notice of Impoundment and Release (“NOIR”) for two weeks after the impoundment, which provided her with the information regarding the appeal process. There is no evidence before me of when the Ministry of Transportation sent her the documents. The appellant also submits that she was further delayed because she did not have the funds to pay for the fee and needed to find someone to help her understand the process.

15The respondent submits that the NOIR was mailed to the appellant at her correct address on the date the vehicle was impounded. Further, the notice of impoundment provided information about how to appeal as well as the 15-day deadline for appealing the impoundment. Finally, it submits that the appellant only took steps to appeal the impoundment when she became aware of the impoundment fees.

16I find the appellant’s submissions to be forthright and it is important to acknowledge that she faces barriers to accessing information quickly. For example, she has limited technical skills and English is her second language. However, although she faces these barriers, what I find unexplained was the 32 additional days she took to file her appeal once she became aware of the process and that the deadline to file the appeal had passed. For this reason, I am not satisfied that she had a bona fide intention to appeal within the required time period.

Length of the delay

17The appellant filed her notice of appeal 47 days after her vehicle was impounded (32 days after the 15-day period specified in s.9 of the Regulation). I find this to be a significant period of delay. Although she faces barriers because of her age and language, she does have access to family supports that she could have reached out to for assistance. For example, on the date of the hearing the appellant was able to have her granddaughter attend the hearing on short notice to assist her with translating. I find the delay was lengthy and the appellant presented no reasonable explanation for the length of the delay once she received notice of the impoundment.

Prejudice to the other party

18Given the fact that this appeal is being made well past the impoundment period, if I find that should the extension be granted, the Registrar would be prejudiced as it benefits from a hearing without delay. This is due to the fact that if the appellant’s appeal is successful, the Registrar is required to pay the cost of impoundment and that cost would be lower the earlier the vehicle is released. The longer the delay, the greater the cost to the Registrar. While this is an important consideration, it did not weigh as heavily in favour for the respondent because of the financial cost of the impoundment.

The merits of the appeal

19On a motion to extend time, the appellant need not establish her case on a balance of probabilities but only that her version of events, if believed could reasonably result in a favourable outcome. I find the appellant has not presented grounds for appeal which disclose a reasonable chance of success should the appeal be allowed to continue to a hearing.

20In her written submissions for appeal, the appellant appeals the impoundment on the grounds of exceptional hardship. She submits that the biggest reason for the appeal is that as a retiree she cannot afford the impoundment fees. In addition, her vehicle is her lifeline, and she needs it to run errands such as laundry, groceries, medical appointments and to visit her grandchildren. Without her vehicle she will face social isolation.

21There 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 during the period of impoundment. 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. 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.

22I find that the appellant has no reasonable chance of success on appeal. The appellant lives in Toronto and she testified that she lives within a five-minute walk to the TTC and has taken public transit since the impoundment. Further, she has received rides from a friend to medical appointments and to pick up groceries. She also has access to taxis, Uber and can call 911 in the event of an emergency. Based on the evidence before me, I find the appellant has used alternatives to the impounded vehicle during the impound period. As a result, I find the appeal does not have a reasonable chance of success should an extension of time be granted.

23Having considered the criteria established in Manuel and s. 7 of the Licence Appeal Tribunal 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

24For the above-noted reasons, the appellant’s motion for an extension of time to file an appeal is dismissed. The appeal is dismissed.

Rebecca Hines

Adjudicator