Jihad Alia v. Registrar of Motor Vehicles, 2024 CanLII 112993

Licence Appeal Tribunal

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 that Act

Between:

Jihad Alia Appellant

-and-

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Jeffery Campbell, Vice-Chair

Appearances:

For the Appellant: Jihad Alia For the Respondent: Leila Pereira, Agent

Heard by teleconference: November 5, 2024

Overview

1Jihad Alia (the “appellant”) appeals the 45-day impoundment of his 2012 Mercedes Sprinter (the “vehicle”) on September 16, 2024, under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). At the time of the impoundment, the vehicle was being driven by A.A. (the “driver”) whose licence was suspended due to a criminal conviction.

2The appellant appealed the impoundment to the Tribunal on October 21, 2024, 10 days after the statutory appeal period. The appellant brought a motion for an extension of time for this filing of his appeal. At the commencement of the hearing and prior to determining the substantive issues on appeal, the parties agreed to provide evidence and submissions on whether the Tribunal ought to extend the time for the appellant to file the appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c H.8 (the “Act”) from the impoundment of his vehicle.

3The Tribunal indicated that if the motion for extension of time to file the appeal was unsuccessful, there would be no decision on the merits of the appeal. If the motion for extension was successful then there would be a decision made by the Tribunal on the motion and also on the merits of the appeal. The appellant stated that he is appealing on the ground of exceptional hardship, pursuant to s. 50.2(3)(d) of the Act.

ISSUES

4The issues to be determined are:

1. Should the appeal deadline be extended to allow the appeal to be filed and heard by the Tribunal?
2. Whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.

RESULT

5I find that the appellant failed to establish reasonable grounds for an extension of the time to file his appeal. The appellant’s motion is dismissed. As the appellant’s motion for an extension of time is dismissed, I do not need to consider the merits of the appeal except as they relate to the appellant’s motion.

ANALYSIS

Issue 1 - Should the appeal deadline be extended?

6I find that, on balance, the justice of the case does not favour granting an extension of time to file an appeal.

7According to section 9 of O Reg 631/98 (the “Regulation”), an appeal of a long-term impoundment is required to be filed within 15 days after the day the vehicle was detained.

8As noted, in the appellant’s case, the vehicle was impounded on September 16, 2024. The appeal deadline was October 1, 2024, and the appellant filed his appeal on October 21, 2024.

9Pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, the Tribunal may extend the deadline if the Tribunal is satisfied there are “reasonable grounds” for doing so. The onus is on the appellant to establish that there are reasonable grounds for granting the extension.

10Determining whether there are reasonable grounds for an extension is not an exact formula. Pursuant to the Divisional Court decision in Manuel v. Registrar, Motor Vehicles Dealers Act 2002, 2012 ONSC 1492 (Div. Ct.), the Tribunal must consider the following factors in determining whether there are reasonable grounds to grant an extension of time:

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

12Taking all of these factors into account, I conclude that the justice of the case requires that the request for an extension of the appeal deadline be denied.

Bona Fide Intention to Appeal within the Appeal Period

13I find that the appellant had a bona fide intention to appeal within the appeal period.

14In the prescribed course of events, upon an impoundment of a vehicle pursuant to s. 55 of the Act, the impounding police provide the owner of the vehicle with a Notice to Registrar (“NTR”), on the back page of which is information on how to appeal the impoundment. However, the evidence indicates, and the Registrar agreed, that the NTR was not produced until October 25, 2024.

15A Notice of Impoundment and Release (“NOIR”) is also to be produced and entered at the time of impoundment into a SIMS system (a database on which impoundment information is entered). The Ministry of Transportation (“MTO”) then sends the NOIR, via Canada Post, to the owner of the vehicle. In this way, the owner of the vehicle is notified twice of the impoundment. Again, the evidence indicates that the NOIR was also not produced until October 25, 2024.

16The appellant testified that he was made aware of the impoundment of the vehicle after returning home from a business trip from Toronto on September 27, 2024, the day after the impoundment. The only documentation that was left at his home was a Towed Vehicle Slip from the Ottawa Police Service. Using information from that Slip, the appellant attempted a number of times, with no success, to contact the officer named on the slip, in order to obtain information on how to retrieve the vehicle. Over the next couple of weeks, the appellant continued his attempts until, on October 12, 2024, he was given information on how to contact the Licence Appeal Tribunal and appeal the impoundment.

17The appellant testified that, following October 12, he was in contact with the Tribunal but had difficulties obtaining the link to the Notice of Appeal. Whether this is the case or not, the appellant did not successfully submit his appeal until October 21, 2024, 10 days after the end of the appeal period.

18Notwithstanding that the period between October 12 and October 21, 2024 is a lengthy period of time in order to file the appeal once he had the contact information of the Tribunal, I do find that the appellant did have a bona fide intention to appeal. This intention was thwarted largely by a systemic failure which prevented the appellant of having the benefit of both the NTR and the NOIR which would have provided pertinent information much sooner than October 12, 2024.

Length of the Delay

19The length of the delay was a matter of 10 days, which I find substantial but reasonably justified by the circumstances described above.

Prejudice to the other party

20The respondent submitted that the prejudice to the Registrar would be added cost of the impoundment, should the appellant be successful in his appeal.

21Had the appellant received timely notice of the impoundment and appealed by the end of the appeal period, the Registrar would also have been responsible for the cost of the impoundment from the date of impoundment until the date of the Tribunal’s decision. I agree that the potential for added cost is prejudicial to the respondent, although it is impossible to quantify that prejudice as it is unknown as to when that Tribunal decision would have been released. I am also mindful that any added cost would at its core result from the fact that, as I found above, the appellant was not advised of the impoundment and his appeal rights in a timely manner.

Merits of the appeal

22It is not the Tribunal’s function at this point to determine the strength of the appellant’s appeal. At this point the appellant must show only that his appeal has some merit. The appellant is appealing on the grounds of exceptional hardship.

23On the basis the appellant’s submissions regarding the vehicle and his circumstances, I do not find that there is some merit to the ground put forward.

24The appellant testified that the vehicle is a 24-foot truck used in his HVAC business, A1 Heating and Cooling. The truck is used to transport air conditioning units, furnaces, gas cylinders and tools used for installations, servicing and diagnosing customer issues.

25The appellant testified that, while he utilizes his son’s and wife’s vehicles to transport the smaller tools used for diagnostics and servicing, those vehicles are unable to transport AC units or furnaces. Subsequently, during the impoundment period, the business has conducted the servicing and diagnosing but has been unable to conduct the installation of new units.

26The appellant testified that he could rent a vehicle to transport the units, however the price of rental is high. Upon questioning, the appellant conceded that this could be a viable option if the dates of installation and the pre-payments are obtained beforehand from the customer.

27The appellant further testified that the season for installations is commonly between June and August, and the primary source of income during timeframe of the period of impoundment is typically for servicing and diagnosing. He stated that, although there will be a loss of income which will affect A1 Heating and Cooling, the business is in no danger of being irreparably financially harmed by the impoundment.

27Section 10 of the Regulation sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment. To establish exceptional hardship, the first requirement set out in s. 10(1) of the Regulation is that there is no alternative to the impounded vehicle, with s. 10(4) of the Regulation requiring the owner to demonstrate the lack of an alternative to the impounded vehicle. If the Tribunal finds that there is an alternative to the impounded vehicle, then the appeal will fail and the Tribunal need not consider any other requirements of the test for exceptional hardship.

28If it is found there is no alternative to the vehicle, the Tribunal must consider, in accordance with section 10(1)(a) of the Regulation, whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle or, in accordance with section 10(3) of the Regulation, that there would be an immediate, significant and long-lasting financial or economic loss to any person ordinarily transported by the vehicle.

29As the evidence establishes that there are alternatives to the impounded vehicle (the wife and son’s vehicles as well as the ability to rent an alternate truck), I find that exceptional hardship argument is also not likely to succeed. Further, even had there been no reasonable alternative, the impoundment would cause neither a risk to the health and safety of a person normally transported by the vehicle nor a immediate, significant and long-lasting financial or economic loss to the appellant.

30Given the prejudice to the Registrar caused by the failure to appeal within the statutory time for appealing, and that the appeal is unlikely to be successful, I find that the appellant has failed to establish reasonable grounds for an extension of time to file his appeal. The appellant’s motion is dismissed.

ORDER

31The appellant’s motion to extend the time for appealing the impoundment is dismissed.

LICENCE APPEAL TRIBUNAL

________________________________

Jeffery Campbell, Vice-Chair