Krysta Florindo v. Registrar of Motor Vehicles, 2024 CanLII 2663

Licence Appeal Tribunal File Number: 15424/MVIA

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:

Krysta Florindo

Appellant

-and-

Registrar of Motor Vehicles

Respondent

ORDER

Adjudicator: Jeffery Campbell, Vice-Chair

Appearances:

For the Appellant: Krysta Florindo

For the Respondent: Leila Pereira, Agent

Heard by teleconference: January 5, 2024

Overview

1Krysta Florindo (the Appellant”) filed a 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 90-day impoundment of her 2013 Toyota Vanguard on October 31, 2023 by the Registrar of Motor Vehicles (the “Respondent” or “Registrar”). At the time of the impoundment, the vehicle was being driven by Colton Clark (the “driver”) who was driving the vehicle while his licence was under suspension due to a criminal conviction.

2Section 9 of Ontario Regulation 631/98 (the “Regulation”) provides that an appeal under s. 50.2 of the Act must be commenced within 15 days after the day of the impoundment.

3The Respondent opposed the motion for an extension of time. The Appellant filed the Notice of Appeal on November 20, 2023, 6 days after the last day for filing.

4The grounds of appeal raised by the appellant are that the impoundment will result in exceptional hardship and that the vehicle was stolen at the time it was impounded.

5For 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.

ANALYSIS

Motion for Extension

6Section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch G gives the Licence Appeal Tribunal (the “Tribunal”) the discretion to grant an extension of time where there are reasonable grounds for applying for the extension and for granting relief.

7In 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 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.

8I have considered the evidence relating to each of these factors as they apply to this case.

a) Bona fide intention to appeal within the appeal period

9I do not accept the Appellant’s evidence that she intended to appeal within the 15-day appeal period.

10The Appellant testified that in the evening of October 31, 2023, she was out with her son ‘trick or treating’, as it was Halloween night. When they returned home, and after activating her phone, the Appellant received a message from the Toronto Police Service advising her that her vehicle had been impounded.

11The Appellant testified that she does not recall when she first contacted the Tribunal regarding filing an appeal. She also testified that she did not ultimately file a Notice of Appeal (the “NOA”) with the Tribunal until November 20, 2023, as she was unsuccessfully attempting to obtain the impoundment number for the purpose of the NOA.

12The Registrar testified that the Notice of Impoundment and Release (the “NOIR”), which contains the impoundment number was sent, via Canada Post, to the Appellant’s address on October 31, 2023. The Registrar also testified that the Appellant had filed a Notice of Appeal with the Tribunal in 2022 with respect to a previous impoundment of the same vehicle in May 2022. The Registrar also produced the NOIR and the Notice to Registrar with respect to that previous appeal. The Appellant confirmed the previous impoundment of 2022.

13In the 2022 Notice of Appeal, the Appellant did not include an impoundment number, but the appeal ultimately proceeded. The Registrar submits that the Appellant knew of the process of appealing the current impoundment from her previous appeal of 2022 and should have known that the impoundment number was not necessary to file the NOA for this appeal.

14The Appellant testified that, although she checks her mail daily, she never received the NOIR.

15I agree with the Registrar in this instance for the following reasons:

(a) I found the Appellant’s recollection of the steps that she took to file the NOA within the time period somewhat uncertain. She was unsure as to when she contacted the police and impoundment companies with respect to obtaining the impoundment number. Most importantly, she was unable to recall when she first contacted the Tribunal with respect to appealing the impoundment of her vehicle.

(b) The NOIR is dated October 31, 2023, and contains the Appellant’s correct mailing address. The Registrar testified that the NOIR was mailed to that address via Canada Post on October 31, 2023. The Appellant testified that she checks her mail every day and never received the NOIR. As noted, I found the Appellant’s testimony unclear, causing me to question the reliability of her testimony with respect to the claim that she never received the NOIR, which would have provided her with the impoundment number that she claims that she was waiting for.

(c) The Appellant’s previous appeal of the 2022 impoundment of her vehicle provided her with the experience as to how to appeal to the Tribunal as well as the knowledge that her current appeal would have proceeded without the necessity of including the impoundment number.

16Given the above, the Appellant had the necessary knowledge by way of the NOIR as well by way of her previous experience, to have filed the NOA within the requisite time frame. However, she filed the NOA late. I therefore conclude that the Appellant did not have a bona fide intention to file the NOA within the appeal period.

b) Length of the delay

18As this is the second impoundment of this vehicle, the impoundment of the vehicle of October 31, 2023 is for 90 days pursuant to s. 55.1(3)2 of the Act. Although there was an additional delay of 21 days due to an earlier adjournment of this hearing, the delay due to the late filing was only six days. I find that to be of only minor significance in this case.

c) Prejudice

19The Registrar benefits from a prompt hearing and would be prejudiced by an extension of the time for filing the appeal. If the appellant’s appeal is successful, the Registrar will be required to cover the cost of the impoundment. The earlier the appeal is dealt with, the less it will cost the Registrar to have the vehicle released. The prejudice to the Registrar is the risk of incurring greater expense than it would otherwise have been exposed to.

20In the present case, the delay of six days leads to an increased cost of impoundment for the Registrar. However, I find that the six-day increase of cost is not sufficient to cause the Registrar significant prejudice.

d) The merits of the appeal

21I find that the Appellant has not established that the appeal is reasonably likely to succeed.

22On a motion to extend time, an appellant need not establish their case on a balance of probabilities but only that their version of events, if believed, could reasonably result in a favourable outcome.

23While this threshold is low, it appears that the appeal is unlikely to succeed on the merits, even if the time to appeal were extended.

24The grounds of appeal raised by the Appellant are that the impoundment will result in exceptional hardship and that the vehicle was stolen at the time it was detained in order to be impounded.

25As this was the Appellant’s second impoundment of a vehicle owned by herself, the ground of exceptional hardship does not apply, pursuant to s. 50.2(4) of the Act. Therefore, the ground of exceptional hardship will not be considered.

26With respect to the ground that the vehicle was stolen, the Appellant testified that, while she was out of her home with her son, the driver broke into her home, obtained the keys to the vehicle and drove it without her consent. The Appellant testified that she intended to have the police lay a charge of the theft of the vehicle against the driver. However, the charge was never laid as, according to the Appellant, there was a conflict as to whether the Ontario Provincial Police or the Toronto Police Services had jurisdiction in this matter.

27During the hearing, the Appellant sent to the Registrar and to the Tribunal an email to and from the Toronto Police Service with respect to her intention to have the driver charged with theft. The Registrar objected to the inclusion of this email as this was not produced in accordance with the Licence Appeal Tribunal Rules. I advised that I will allow the email as it is relevant to the matter, but will afford it the appropriate weight.

28In the email from the Appellant to the Toronto Police Services, dated December 7, 2023, the Appellant advised, “I am trying to get a copy of the report and [w]hen I was called I cannot recall if I mentioned or not, and if it was put in the report that the vehicle was taken without consent/permission by Colton Clark.”

29The Toronto Police Service responded via email on December 8, 2023, advising the Appellant to contact the officer in charge of the case, giving his name, badge number and contact information. The Appellant did not advise as to whether she subsequently did contact that officer.

30Even if I do afford the email of December 7, 2023 full weight, I do not find it particularly useful to the Appellant’s claim that it was her intent to report the vehicle as having been stolen. If that was her intent (by the use of the wording of “without consent/permission”), it must be noted that this was communicated with the Toronto Police Service 38 days after the date of the impoundment and 17 days after the filing of the NOA. While this may not be fatal to her claim that the vehicle was stolen, it does raise a concern that the email of December 7th was more for the purpose of the appeal than for any other reason.

31The Registrar submitted that the previous appeal regarding the impoundment of May, 2022 involved the same vehicle, the same driver and was based on the same grounds as the present appeal. The Registrar testified that, in that appeal, the Registrar released the vehicle on the basis that the driver had been charged with the theft of the vehicle, whereas in the current appeal, he has not. The Registrar also testified that the vehicle was previously released with the proviso that the Appellant take steps to ensure that it does not occur again, although no evidence was put forward to verify that statement.

32As noted, in considering the merits of the appeal, I must determine whether the appellant’s version of events, if believed, could reasonably result in a favourable outcome. I find that, while the version of the Appellant’s events could reasonably result in a favourable outcome, given the lack of evidence that the Appellant initially intended to have the driver charged with the theft of the vehicle as well as the fact that this is the second occurrence of the same driver ‘stealing’ the same vehicle, it is questionable whether that the version of events will be believed. I conclude that they will not.

CONCLUSION

33As a result of the above, I conclude that the appellant did not have a bona fide intention to file within the time period and that the appeal will probably not result in a favourable outcome. I therefore find that the appellant has failed to establish that the justice of the case requires an extension of the time for the filing of the appellant’s appeal.

I ORDER AS FOLLOWS:

34The appellant’s motion to extend the time to file her appeal is denied. The appeal is consequently dismissed as being out of time.