Abo Ali Auto Inc. v. Registrar of Motor Vehicles, 2024 CanLII 121071

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:

Abo Ali Auto Inc. Appellant

-and-

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Adjudicator: Jeffery Campbell, Vice-Chair

Appearances:

For the Appellant: Belal Alobieda

For the Respondent: Sadia Ashraf, Agent

Heard by teleconference: December 4, 2024

Overview

1Abo Ali Auto Inc. (the “appellant”) appeals the 45-day impoundment of its 2010 Mitsubishi Outlander (the “vehicle”) on November 2, 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 Adyeri Olimi (the “driver”) whose licence was suspended due to a criminal conviction.

2The appellant appealed the impoundment to the Tribunal on November 21, 2024.

ISSUES

3The issue to be determined is:

1. Should the appeal deadline be extended to allow the appeal to be filed and heard by the Tribunal?

2. Whether the appellant exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was impounded was not then under suspension. under s. 50.2(3)(c) of the Act.

3. Whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.

RESULT

4For the reasons given below, I find that the justice of this case does not warrant an extension of the time for filing the appeal. The Appellant’s motion is therefore denied and consequently the appeal is dismissed as being out of time.

A. Should the appeal deadline be extended?

5I find that, on balance, the justice of the case does not favour the granting an extension of time to file an appeal.

6According to the Regulation, an appeal of a long-term impoundment is required to be filed within 15 days after the day the vehicle was detained.

7In the appellant’s case, the vehicle was impounded on November 2, 2024. The appeal deadline was November 17, 2024, and the appellant filed its appeal on November 21, 2024.

8Pursuant 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.

9Determining 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.

10The 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.

11Taking all of these factors into account, I conclude that the justice of the case does not require an extension of the appeal deadline.

Bona Fide Intention to Appeal within the Appeal Period

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

13In 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. The evidence presented by the Registrar establishes that both the NTR and a Notice of Impoundment and Release (“NOIR”) were sent to the appellant via registered mail on November 2, 2024.

14Mr. Belal Alobieda, the President and only employee of the appellant, Abo Ali Auto Inc. testified on behalf of the appellant. The appellant’s address is in Quebec City, Quebec, while Mr. Alobieda lives in Ottawa, Ontario. Mr. Alobieda testified that from between November 2 and 18, 2024, he was at his home in Ottawa and did not attend at the appellant’s office in Quebec City. When he did attend the office on November 18th, he found a Notice of Towed Vehicle from the Ottawa Police Service which alerted him to the impoundment of the vehicle. Mr. Alobieda then contacted the Ottawa Police Service who advised him of the process of appealing to the Tribunal.

15It is clear from Mr. Alobieda’s evidence that the appellant did not intend to appeal within the appeal period, that being within 15 days after the date of the impoundment, as Mr. Alobieda, in failing to regularly check the appellant’s mail, was not aware of the impoundment.

16I, therefore, find that the appellant did not have a bona fide intention to appeal within the appeal period.

Length of the Delay

17The length of the delay was a matter of 4 days.

Prejudice to the Other Party

18The respondent submitted that the prejudice to the Registrar would be added cost of the impoundment, should the appellant be successful in its appeal.

19Had the appellant reviewed its mail in timely manner, it would have been aware of the impoundment of the vehicle prior to the end of the notice period. The delay in checking the mail, and subsequent delay in filing the Notice of Appeal, causes prejudice to the Registrar due to the increased cost of impoundment, should the appellant be granted the extension of time for filing, and be successful on appeal.

Merits of the appeal

20It 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 its appeal has some merit. The appellant is appealing on the grounds of due diligence and exceptional hardship.

21On the basis the appellant’s submissions regarding the vehicle and its circumstances, I find that there is no merit to the grounds put forward.

Due Diligence (s. 50.2(3)(c) of the Act)

22With respect to the ground of due diligence, Mr. Alobieda testified that, on October 29, 2024, he rented the vehicle to Mr. Frederick Olimi for the period of October 29 to November 26, 2024. At the time of the rental transaction, Mr. Alobieda requested the driver’s licence of the renter. He subsequently reviewed and took a photo of the driver’s licence. Upon review, he determined that the driver’s licence was valid.

23The driver of the vehicle at the time of the impoundment, however, was not Frederick Olimi, but was Adyeri Olimi. Mr. Alobieda testified that, at the time of the transaction of the rental, he advised Frederick Olimi hat he was not to allow anyone who was not listed on the rental contract to drive the vehicle. Mr. Alobieda testified that, indeed, Frederick Olimi was the only driver listed on that contract.

24In describing the due diligence ground of appeal, section 50.2(3)(c) of the Act states that “the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension or subject to the condition described in paragraph 2 of subsection 55.1(1)”.

25In Walia v. Registrar of Motor Vehicles, 2023 CanLII 47529 (ON LAT), the Tribunal found:

As set out in the Act, an appeal against impoundment based on due diligence is only available when a vehicle owner, having made efforts to establish a person has a valid licence, allows that person the use of the vehicle and later discovers that that person’s driver’s licence was in fact suspended. Thus, the due diligence ground of appeal is intended to apply to circumstances where the individual who was driving at the time of impoundment is an individual who the owner permitted to drive the vehicle. It is not intended to apply to circumstances where the permitted person then allows someone else to drive the vehicle.

I note that the Tribunal has previously concluded in Ott v. Registrar of Motor Vehicles, 2022 CanLII 46859 (ON LAT) that the due diligence ground of appeal is not available to an appellant in such circumstances on the basis that the vehicle owner cannot practically prevent an unlicensed individual from driving the vehicle once they have relinquished control over the vehicle. Though I am not bound by other decisions of this Tribunal, I have considered the reasoning in Ott and am persuaded to apply it here.

26While I, as with Adjudicator Hans in the Walia case, am not bound by previous decisions of this Tribunal, I find both the Walia and Ott cases to be persuasive and I apply that reasoning to this case.

27Under the current circumstances, I find that Adyeri Olimi was not the intended driver of the vehicle. Section 50.2(3)(c) provides for an appeal where the owner exercises due diligence as it pertains to the licence status of the intended driver of the vehicle. In this case the intended driver was the renter, Frederick Olimi, not Adyeri Olimi.

28Given the above, I find, that the ground of due diligence is not available to the appellant. Therefore, there is no merit to this ground for appeal.

Exceptional Hardship (s. 50.2(3)(d) of the Act)

30Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that I 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 available to the impounded vehicle, with s. 10(4) of the Regulation requiring the owner to demonstrate that they have considered and inquired into every reasonable option that could eliminate or adequately mitigate any threat or loss, including using another vehicle and making arrangements to do without any vehicle. If it is found that there is an alternative to the impounded vehicle, then the appeal will fail.

31If it is found there is no alternative to the vehicle, in accordance with section 10 of the Regulation, it must be considered whether the impoundment will result in a threat to the health and safety of any person ordinarily transported by the vehicle or to the public health and safety or the environment or property of a community in whose service the motor vehicle is ordinarily used. Also, at that stage, it may be considered if there would be an immediate, significant and long-lasting financial or economic loss or loss of employment or education (or an opportunity for the same) to any person ordinarily transported by the vehicle other than the suspended driver.

32Mr. Alobieda testified that he does not use the vehicle for personal use, but only as a part of the appellant’s rental fleet. He testified that the appellant owns eight vehicles which they continue to rent (2 of which were purchased after the impoundment on November 2, 2024). While the impoundment of the vehicle caused a cancellation of some rental reservations, Mr. Alobieda testified that there will be no long-lasting economic consequences to the appellant due to the impoundment.

33As it is apparent from the evidence, that there are alternatives to the impounded vehicle, and, even if there were not, there would be no long-lasting economic impact of the appellant, I find that there is no merit to the ground of exceptional hardship.

Conclusion

34I have concluded that the appellant had no bona fide intention to appeal within the appeal period, that there is prejudice to the Registrar in the late filing of the appeal and that there is no merit to the appellant’s appeal on either the grounds of due diligence or exceptional hardship. For those reasons, the motion to extend the deadline for the filing of the appeal is denied.

I ORDER AS FOLLOWS:

35I order that the motion to extend the deadline for the filing of the appeal is denied. The appeal is consequently dismissed as being out of time.