Jeanette Harrod v. Registrar of Motor Vehicles, 2024 CanLII 18086

Tribunals Ontario

Licence Appeal Tribunal

Tribunaux décisionnels Ontario

Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 15639/MVIA

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:

Jeanette Harrod

Appellant

and

Registrar of Motor Vehicles

Respondent

MOTION ORDER

VICE-CHAIR: Avril A. Farlam

Appearances:

For the Appellant: Jeanette Harrod, Self-represented

For the Respondent: Leila Pereira, Agent

HEARD: February 26, 2024

DECISION

OVERVIEW

1Jeanette Harrod, the appellant, appeals from the impoundment of her 2017 Hyundai, the vehicle, on January 19, 2024 for 45 days. At the time of the impoundment the vehicle was being driven by a person other than the appellant who did not have a valid driver’s licence (the “driver”).

2The appellant appeals on two grounds. Firstly, on the ground that she exercised due diligence in attempting to determine that the driver’s licence of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension. Secondly, on the ground that the impoundment will result in exceptional hardship to her because she lives in a rural district one-half hour from shopping, and the impoundment fees will be a hardship to her and her husband because of their age and live on pension income.

PRELIMINARY ISSUE – APPELLANT’S MOTION TO EXTEND TIME TO APPEAL

3Jeanette Harrod (the “appellant”) filed a Notice of Motion dated February 16, 2024 (“motion”) for an order granting an extension of time for the appellant to file an appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“Act”) from the impoundment of her 2017 Hyundai (the “vehicle”) for 45 days on January 19, 2024 by the Registrar of Motor Vehicles (the “respondent”).

4The appellant’s motion is based on the fact that she is 84 years old, does not have access to email or a printer, and her appeal was late because she had to obtain a paper copy of the Notice of Appeal from the Tribunal to fill out and send in to file her appeal. Delays occurred as a result of her having to use regular mail which caused her appeal to be filed outside the legislated time frame of 15 days.

5The appellant confirmed at the hearing that her proposed grounds of appeal, should the appeal be allowed to proceed, would be two grounds. Firstly, the appellant appeals on the ground that she exercised due diligence in attempting to determine that the driver’s licence of the driver of the vehicle at the time it was detained in order to be impounded was not then under suspension. Secondly, the appellant appeals on the ground that the impoundment will result in exceptional hardship.

6The respondent opposed the appellant’s motion for extension of time.

7The issue on this motion is whether the Tribunal should extend the time for the appellant to file her appeal.

ORDER ON MOTION

8The decision on the appellant’s motion to extend the time to file her appeal was given orally for reasons to follow. The following are my reasons.

ANALYSIS ON MOTION

9Section 9 of O. Reg. 631/98, entitled “Long-Term Vehicle Impoundment Under Section 55.1 of the Act”, states that an appeal of an impoundment under s. 55.1 of the Act must be filed within 15 days of the impoundment.

10The appellant’s motion is to extend the time for filing an appeal. Pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sched. G the Tribunal may extend the time to file an appeal if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief.

11To be successful on this motion the appellant must show that there are reasonable grounds for the extension and for the granting an extension of time. The Tribunal must consider the following factors as set out in Manuel v. Registrar, Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492 (Div. Ct.) when deciding whether to grant an extension of time to file an appeal:

1. The existence of a bona fide (good faith) intention to appeal [within the appeal period];

2. The length of the delay;

3. Prejudice to the other party; and

4. The merits of the appeal.

12The Divisional Court determined that the factors to be considered are simply a guide to assist in determining the justice of the case and should not be slavishly followed.

13I will consider these factors below in light of the evidence of the appellant and his submissions at the hearing.

Bona fide (good faith) intention to appeal within the appeal period

14I find that there is sufficient evidence that the appellant had a good faith intention to appeal within the appeal period.

15The appellant testified that she was informed of the impoundment by family on January 24, 2024. Not having access to the internet or a working computer or printer and being 84 years of age and finding technology challenging, the appellant telephoned the Tribunal office and asked them to send her documents to appeal by way of regular mail. As a result of delays in receiving documents in the regular mail, the appellant testified that she did not complete and sign the Notice of Appeal until February 1, 2024. The appellant testified that she had to go to her bank and obtain a bank draft for the filing fee and could not do this until a few days later. The bank draft is dated February 5.

16The appellant sent her Notice of Appeal to the Tribunal with her bank draft by regular mail with the result that it was not received by the Tribunal until February 7, 2024, some four days late.

17I find that the appellant’s delay in filing her appeal was due to her lack of access to and ability to file her appeal electronically given her age and lack of computer equipment.

18Given the efforts the appellant made to find out how to file her appeal during the appeal period, her completion of the Notice of Appeal within the time for appealing, and the fact that her appeal had to be perfected by regular mail and not electronically, I find that the appellant has established that she had a good faith intention to appeal the impoundment during the appeal period.

Length of the delay

19The time for appeal expired February 3, 2024. The appellant’s Notice of Appeal was received by the Tribunal February 7, 2024, some four days late.

20Given that the appellant had to file her appeal by regular mail, I find there has not been substantial delay in filing the appeal by the appellant.

Prejudice to the other party

21The respondent submitted that the delay in filing her appeal could have been avoided by the appellant asking her neighbour for help filing her appeal electronically, as she did with her Notice of Motion, and also submitted that the Registrar should not be responsible for any delays the appellant encountered.

22I find that the prejudice to the appellant if her appeal is not allowed to proceed outweighs any possible prejudice to the respondent from allowing the appeal to proceed and that there is not possible prejudice to the respondent sufficient to deny the extension of time.

Merits of the appeal

23Here the appellant testified that she has two grounds of appeal she wishes to put forward at the hearing.

24The bar is low under this heading. The appellant appears at this early point in the hearing to have at least an arguable chance of success on one or more of the grounds of appeal.

25To succeed on a motion for an extension of the time to file an appeal, the burden is on the appellant to demonstrate reasonable grounds on which an extension of time should be granted. I find that the appellant has demonstrated that she had a bona fide (or good faith) intention to appeal within the time for appeal, that there has not been substantial delay in filing the appeal, that there is no prejudice to the respondent sufficient to deny the extension of time, and on the merits of the appeal there is an arguable chance of success.

26As a result, I find that the appellant has established that the justice of the case requires an extension of the time for the filing of the appellant’s appeal.

27The appellant’s appeal was heard immediately following the hearing of her motion. My decision on the appeal and the reasons for it are as follows.

ISSUE

28The issues in dispute are:

i. Issue 1: Did the appellant exercise due diligence in accordance with s. 50.2(3) of the HTA.

ii. Issue 2: Will the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

RESULT

29I find that the appellant did not exercise due diligence. I find that the impoundment will not result in exceptional hardship.

ANALYSIS

30The owner of a vehicle which has been impounded pursuant to s. 55.1 of the Highway Traffic Act, R.S.O., 1990, c. H.8 (the “HTA”) may, pursuant to s. 50.2, appeal the impoundment and request an order that the Registrar release the vehicle.

31An owner may appeal only on the grounds set out in s. 50.2(3), (a), (b), (c) and (d) of the HTA. The appellant appeals on grounds (c), that she 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, and (d), that the impoundment will result in exceptional hardship.

32Section 55.1(1) provides that where an officer is satisfied that a person driving a motor vehicle on a highway while his or her driver’s licence is under suspension, or in contravention of a condition that prohibits him or her from driving a motor vehicle that is not equipped with an ignition interlock device, shall detain the vehicle and shall impound it under s. 55.1(3).

Issue 1: Did the appellant exercise due diligence in accordance with s. 50.2(3)(c) of the HTA

33I find that the appellant did not exercise due diligence in accordance with s. 50.2(3)(c) of the HTA in attempting to determine that the driver had a valid driver’s licence that would allow him to drive the vehicle.

34To succeed on this ground of appeal, the appellant must show that he or she took reasonable steps to determine that the driver’s licence of the driver of the motor vehicle at the time it was impounded was not suspended and that it was valid. The circumstances of each case will dictate what steps would amount to due diligence.

35There is no evidence from the appellant that she exercised any due diligence at all.

36The appellant testified that she allowed her granddaughter to drive the vehicle and her granddaughter allowed the driver to drive the vehicle. The appellant testified that neither she or granddaughter knew that the driver did not have a valid driver’s licence and neither made any attempt to check if the driver had a valid driver’s licence.

37I find that the appellant did not exercise due diligence in accordance with s. 50.2(3)(c) of the HTA in attempting to determine that the drivers licence of the driver was not under suspension at the time of impoundment.

Issue 2: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation

38I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.

39Section 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. In order to establish exceptional hardship, the first requirement, as set out in s. 10 (1) of the Regulation, is that there must be no alternative to the impounded vehicle. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

40The owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.

41If the appellant is able to establish that there is no alternative to the impounded vehicle then under s. 10(1), I must consider whether the impoundment will result in:

a. a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

b. 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.

42I can only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the appellant first establishes that there is no alternative to the impounded vehicle. I find that the appellant has not established that there is no alternative to the impounded vehicle.

43Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.

44The appellant testified that she owns a second vehicle, a Mini, which she has driven since the impoundment to obtain groceries, medications and meet her other needs. This is consistent with the records filed by the Registrar. The appellant also testified that her husband owns a truck.

45Although the appellant stated in her Notice of Appeal that the impoundment fees will be a financial burden for she and her husband as their source of income is pensions, I may only consider whether the impoundment will result in financial loss to the appellant if there is no alternative to the impounded motor vehicle.

46I find that the appellant’s alternative to the impounded vehicle is the second vehicle that she owns, the Mini. In addition, her husband has a truck.

Conclusion

47The appellant has not established either of her grounds of appeal.

48The appellant has not established that she exercised due diligence in attempting to determine that the driver’s licence of the driver was not under suspension when the vehicle was detained in order to be impounded, within the meaning of s. 50.2(3)(c) of the HTA.

49I also find the appellant has not established the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.

ORDER:

50Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.