Licence Appeal Tribunal File Number: 16387/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.

And in the matter of a Notice of Motion for an order to extend the time to file the appeal pursuant to section 9 of O. Reg. 631/98.

Between:

Stephanie Newman

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION and ORDER

ADJUDICATOR:

Bruce Stanton

APPEARANCES:

For the Appellant:

Stephanie Newman, (self-represented)

For the Respondent:

Leila Pereira, Agent for the Registrar

Heard by Teleconference:

November 28, 2024

OVERVIEW

1Stephanie Newman (the “appellant”) appeals the impoundment of her 2003 Ford F-350 truck on October 28, 2024 for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

2The owner of a motor vehicle that has been impounded in accordance with section 55.1 may, under the provisions of section 50.2 of the Act, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”) that the Registrar release the vehicle.

3For the Tribunal to order the vehicle released, the appellant must prove, on a balance of probabilities, that she satisfies at least one of the five grounds set out in subsection 50.2(3) of the Act. The appellant appeals on the ground that the impoundment will result in exceptional hardship pursuant to subsection 50.2(3)(d) of the Act.

4The appellant filed a Notice of Appeal on November 15, 2024, three days after the legislated 15-day appeal period expired.

5The appellant filed a Notice of Motion with the Tribunal during today’s scheduled hearing, seeking an order to grant an extension of the appeal period so that her appeal could be heard.

6The motion on the extension was heard at the commencement of today’s hearing. If the extension is granted, the hearing on the merits of the appeal shall proceed immediately after the conclusion of the hearing on the motion.

ISSUES

7The issues to be determined are:

1. Are there reasonable grounds for the Tribunal to grant an extension of time to allow the appellant to appeal the impoundment outside of the legislated timeline; and

2. If an extension is granted, will the impoundment result in exceptional hardship?

RESULT

8The extension is granted. The appeal may be heard.

9The impoundment will result in exceptional hardship. The Registrar is ordered to release the vehicle from impoundment.

ANALYSIS

Motion to extend time for the appeal

10Section 9 of O. Reg 631/98 under the Act (the “Regulation”) stipulates that an appeal under section 50.2 of the Act, with respect to the impoundment of a motor vehicle under section 55.1, must be filed with the Tribunal no later than 15 days after the day the vehicle was detained for impoundment.

11Under section 7 of the Licence Appeal Tribunal Act, 1999, the Tribunal may extend a time limitation under the Act or Regulation to file an appeal if the Tribunal is satisfied there are reasonable grounds for doing so.

12The 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 compels the Tribunal to conclude that granting an extension is appropriate. The factors to consider in deciding the justice of the case are:

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

13The 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.

14The appellant has the onus to demonstrate a factual foundation for the reasonable grounds to grant the extension.

15Having considered the circumstances of the case, as described by the parties’ submissions, in relation to each of the four factors, I conclude that the justice of the case requires an extension of the time limit for the following reasons.

Prejudice to the other party

16The appellant did not make submissions on the issue of prejudice to the other party.

17The respondent submitted that it would be prejudiced by the granting of an extension because if the appellant succeeds in her appeal, the extension beyond the appeal period will result in the Registrar having to pay higher impoundment fees. The higher amount would arise from the additional of days of impoundment relative to a scenario where the appeal was filed within the appeal period.

18I find there is potential for prejudice against the respondent by granting an extension, but it is relatively insignificant. The exposure to additional costs resulting from the extension is limited to the number of days beyond the appeal period the appellant filed and then only if the appellant succeeds.

19I find limited prejudice to the respondent by granting an extension.

Merits of the Appeal

20To 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 submissions before me. This is not an exercise in prejudging the hearing outcome.

21The merits of the appeal hinge on the reasons for the appeal and on what grounds the appellant believes her vehicle should be ordered released.

22The appellant submitted that the appeal has merit. She is appealing on the ground of exceptional hardship. She claims the impounded vehicle is the family’s only vehicle that can accommodate the wheelchair for her 10-year-old son who lives with cerebral palsy and respiratory illness. They live in a rural location with no bus service or public transit and have no alternative to the impounded truck to transport her son to medical appointments in London, a two-hour drive from home.

23The respondent submitted that because the appellant has a second vehicle, she will not succeed in an appeal on the exceptional hardship ground because she has alternatives. It submits that a threat to the health and safety of a person ordinarily transported by the motor vehicle (in this case, the appellant’s son) can only be considered if there is no alternative.

24I find the appeal has some merit. The appellant’s submissions regarding her circumstances following the impoundment suggest her appeal on the ground of exceptional hardship is worthy of a hearing. The respondent’s submissions on the possible alternatives to the impounded vehicle are relevant to the substantive issue in dispute. The respondent ought to have the opportunity to be put those claims before the Tribunal.

25I find there is some merit to the appeal, which weighs in favour of granting an extension.

Genuine intention to appeal within the appeal period

26The appellant submitted that the police officer who detained the vehicle advised the driver, the appellant’s husband, Gordon Newman, that the impoundment could be appealed to a tribunal. On October 29, 2024, the day after the vehicle was detained, the appellant filed an appeal on the Tribunal’s Notice of Motion form. The Tribunal responded that day and informed the appellant to file her appeal on the appropriate form, including a copy of the Notice of Impound from the MTO and the filing fee.

27The appellant submitted that she paid the filing fee on November 4, 2024 and thereafter, expected the Tribunal would contact her about next steps. She submits that mistakenly waiting for the Tribunal to contact her after November 4 contributed to the delay in filing. The appellant described missing the November 12 deadline as an honest mistake, but she had a genuine intention to appeal within the appeal period.

28The respondent submitted that the appellant had the information she needed and had established a connection with the Tribunal soon enough that she could have filed within the appeal period. The respondent submits that the appellant did not follow up with the Tribunal after November 4 to ensure the appeal was filed on time.

29I find the appellant had a genuine intention to appeal the impoundment. She took steps and actions soon after the vehicle was detained to file the appeal. Although the email exchanges between her and the Tribunal resulted in the completed Notice of Appeal being filed three days after the appeal period ended, I find the appellant’s submissions credibly illustrate her genuine intention to appeal.

30I find that the appellant had a genuine intention to appeal within the appeal period.

Length of Delay

31The appellant submitted that her appeal was only three days late and it is not an unreasonable delay.

32The respondent made no submissions on the length of the delay criteria.

33I find the length of delay in filing should not prevent granting an extension to allow the appeal. Considering the rather short length of delay, I find the justice of the case requires an extension be granted.

34Accordingly, the justice of the case requires granting an extension because there is little prejudice to the other party, there is some merit to the appeal, the appellant had a genuine intention to file within the appeal period, and the 3-day delay ought not prevent the granting of an extension.

35I find that the appellant has demonstrated a factual foundation for reasonable grounds for the Tribunal to grant an extension to the legislated appeal period stipulated in section 9 of the Regulation.

Will the impoundment result in exceptional hardship?

36I find the impoundment will result in exceptional hardship.

37Ontario Regulation 631/98 (the “Regulation”), under the Act, sets out the criteria the Tribunal must consider in determining whether an impoundment will result in exceptional hardship.

i. Section 10(1) of the Regulation requires the Tribunal to first consider whether there is no alternative to the impounded vehicle. Only if there is no alternative may I consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle or a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used.

ii. Further, I may only consider other consequences of the impoundment such as financial or economic loss, or loss of employment or education in determining whether the exceptional hardship test has been met, if the owner demonstrates not only that no alternative to the impounded vehicle is available, but also that the loss will be immediate, significant and lasting, will be upon a person ordinarily transported by the vehicle, and that the impact of the loss will be upon someone other than the suspended driver.

iii. In order to establish that there is no alternative, section 10(4) of the Regulation requires the owner of the impounded vehicle to demonstrate that every reasonable option has been explored and inquired into, including using another vehicle or arranging to be without any vehicle.

Alternatives to the impounded vehicle

38I find the appellant has an alternative to the impounded vehicle for all the family needs with the exception of a suitable vehicle to transport her son.

39As noted above, subsection 10(1) of the Regulation stipulates that when there is no alternative to the impounded vehicle, a threat to the safety of any person ordinarily transported by the motor vehicle, in this case the appellant’s son, may be considered in determining if the impoundment will result in exceptional hardship.

40The appellant testified that the impounded Ford 350 truck is the family’s only vehicle that can accommodate the special wheelchair for her 10-year-old son who lives with cerebral palsy and chronic respiratory illness. His health condition requires that he attend between 2 to 7 visits per month at clinics and specialists (a monthly cerebral palsy clinic, and an ear nose and throat specialist and neurosurgeon as the son’s health requires) in London, Ontario, approximately two hours drive from the family home. The impoundment has resulted in her son missing two appointments in November and one appointment is scheduled for early December, prior to the scheduled release of the vehicle. If the vehicle is not ordered released, he will miss the December appointment also.

41The appellant testified that her son is non-verbal, receives nourishment by way of a feeding tube, and receives his pharmaceutical treatments by syringe injection which the appellant administers. She describes his health condition as fragile. For example, if her son contracts a common cold, it can easily evolve into aspiration pneumonia and vomiting.

42The appellant testified that her son has only two means of transportation, “me carrying him, and his wheelchair.” The appellant has a second vehicle, a 2014 Dodge Durango, but it cannot accommodate the size and bulk of her son’s wheelchair. The appellant testified that she uses the Durango for all other family needs such as shopping for groceries, supplies and pharmaceuticals. She testified that the Durango accommodates her son’s special car seat with the rear bench seat declined, but then there is not enough space left to accommodate the wheelchair.

43The appellant testified that she looked into other options but there is no transit service for people with wheelchairs in their rural area and the cost of renting a suitable vehicle is unaffordable. The appellant relies on ODSP and Canada Child Benefit for income. The only other household income comes from the appellant’s husband who operates a scrap and junk removal business, using the impounded vehicle, that nets approximately $10,000 per year ($800 per month). The appellant testified that after rent expense, the ODSP nets approximately $500.00 per month to the household. The cost of medical supplies for her son (feeding tubes, pharmacy and syringes) is approximately $600.00 per month.

44The appellant testified that she has no family or friends within a reasonable distance, or with a suitable vehicle, that can provide alternative transportation for her son.

45The respondent submits that the appellant has an alternative to the impounded truck and therefore any threats or risks to the health and safety of the appellant’s son cannot be considered in determining if the impoundment will result in exceptional hardship. The respondent submits that although the appellant’s son has missed two appointments, his health is currently stable and emergency, 911 services would respond to any health emergency.

46I find that the appellant does not have a reasonable alternative to the impounded vehicle for transporting her son and therefore the impoundment poses a threat to his health and safety.

47The evidence before me reveals that the only other family vehicle, the Durango, cannot accommodate the son’s wheelchair. Without the Ford 350, transporting him to medical appointments would require the appellant to carry him to and from the Durango at each point of the journey. I find that scenario unreasonable under the circumstances. The appellant’s son essentially relies on his mother and the impounded vehicle to access the medical services he needs.

48I find the appellant’s testimony regarding the family’s financial means to be credible and persuasive in finding that she cannot afford to rent a suitable vehicle for her son’s medical appointments.

49Without any wheel-trans services in her area, family or friends to assist, or the ability to rent vehicle, the impounded vehicle is her only reasonable option.

50I agree with the respondent that the appellant has a reasonable alternative in her second vehicle for most all the family needs, but that does not include transportation for her son. In its submissions, the respondent seems to suggest that the mere existence of an alternative precludes the Tribunal from considering how the impoundment might pose a threat to the health and safety of a person who is ordinarily transported by the impounded vehicle. Put another way, having “an” alternative removes any consideration of the risks to the health and safety of a person ordinarily transported.

51If that is the respondent’s argument, I disagree. If the alternative cannot reasonably serve the needs of a person who had been relying on the impounded vehicle to mitigate threats to their health and safety, it is not an alternative for the purposes of subsection 10(1). In this case, the second vehicle fails to replace the role of the impounded vehicle in enabling the son to access needed medical services.

52The respondent did not present any evidence to dissuade me from concluding that the exceptional hardship test applies to the facts before me, and that the appellant’s circumstances meet that test.

53I find that the appellant meets her burden in proving the impoundment will result in exceptional hardship because, pursuant to subsection 10(4) of the Regulation, she explored and inquired into alternatives for transporting her son, she has no reasonable alternative to the impounded vehicle with which to minimize the threat to her son’s health and safety, and her son’s medical condition is fragile.

CONCLUSION

54The motion seeking an extension to the statutory appeal period is granted so the appeal may be heard.

55I find that the appellant meets her burden in proving that the impoundment will result in exceptional hardship pursuant to subsection 50.2(3)(d) of the Act.

ORDER

56An extension of the statutory appeal period is granted pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, and section 9 of the Regulation.

57Pursuant to subsection 50.2(5) of the Act, I direct the Registrar to release the impounded vehicle.

Bruce Stanton

Adjudicator