Licence Appeal Tribunal File Number: 15742/MVIA

In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.

Between:

Ashley C. Lammers

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR:

Rupinder Hans

APPEARANCES:

For the Appellant:

Ashley C. Lammers, Self-represented

For the Respondent:

Leila Pereira, Representative

Tribunal Observer:

Gina Brannan

HEARD: April 10, 2024

OVERVIEW

1Ashley C. Lammers (the “appellant”) filed a motion for an order granting an extension of time to file an appeal pursuant to section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”) from the 45-day impoundment of a 2010 Dodge Caravan motor vehicle (the “vehicle”). The appellant’s vehicle was impounded on February 29, 2024 by the Registrar of Motor Vehicles (the “Registrar”). At the time it was detained in order to be impounded, the appellant was driving the vehicle while her licence was suspended as a result of a Criminal Code conviction.

2The appellant filed the Notice of Appeal on March 19, 2024, which is four days after the 15-day appeal period prescribed by Section 9 of Ontario Regulation 631/98 (the “Regulation”). The respondent opposed the motion for an extension of time. After hearing the submissions of both parties on whether I should grant the extension, I found that the appellant met her onus for the reasons set forth below, and the hearing on the appeal proceeded. The appellant appeals on the ground that the impoundment will cause exceptional hardship.

3At the outset of the hearing on the appeal, the Registrar made a motion pertaining to the issue of standing. The Registrar submitted that the appellant lacked standing to bring the appeal as she was not the owner of the vehicle at the time the vehicle was detained in order to be impounded. After hearing the submissions of the parties, I found that the appellant had standing to bring the appeal for the reasons set forth below.

ISSUES

4The issues in dispute are:

i. Whether the appeal deadline should be extended to allow the appeal to be filed and heard by the Tribunal?

ii. Does the appellant have standing to appeal the impoundment of the vehicle?

i. Whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act?

RESULT

5The motion to extend the deadline for the filing of the appeal is granted.

6The appellant has standing to appeal the impoundment of the vehicle.

7The impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act and the appeal is granted.

ANALYSIS

A. Should the appeal deadline be extended?

8I find that, on the balance of probabilities, the justice of the case favours the granting of an extension of time to file an appeal and the appeal deadline is extended to March 19, 2024.

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

10In the appellant’s case, the vehicle was impounded on February 29, 2024. The appeal deadline was March 15, 2024. The appellant submitted her appeal on March 19, 2024, four days late.

11Under the Licence Appeal Tribunal Act s. 7, the Tribunal may extend the deadline if the Tribunal is satisfied there are “reasonable grounds” for doing so.

12Determining whether there are reasonable grounds for an extension is not an exact formula. Pursuant to 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.

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 onus is on the appellant to establish that there are reasonable grounds for granting the extension.

Bona Fide Intention to Appeal within the Appeal Period and the Length of the Delay

15I conclude that the appellant had a bona fide intention to appeal before the expiration of the appeal period and the length of the delay was not significant.

16The appellant submitted that she had an intention to file an appeal and even called the Tribunal on March 14, 2024, prior to the expiration of the time period, to obtain additional information on how to file an appeal. She advised that she has disabilities and a lack of resources. Her family was also experiencing a family crisis at the time. She advised that she made a mistake and filed late as she was struggling with the paperwork.

17The appellant stated she had every intention of pursuing an appeal.

18I found the appellant’s submissions to be forthright. I am satisfied that she did have a bona fide intention to appeal within the required time period and that the length of delay was adequately explained.

Prejudice to the other party

19The Registrar advised that there is prejudice given that some period of the impoundment period of 45 days has passed, and the appellant was advised of the appeal process.

20I find that there is some prejudice to the Registrar with the late filing. The Registrar would benefit from a hearing without delay. I took this factor into consideration.

The merits of the appeal

21To consider the justice of the case for an extension of time limit based on the merits of the appeal, I must only be satisfied that there is some merit to the appeal based upon the evidence before me. This is a relatively low test. This is not an exercise in prejudging the hearing outcome.

22The appellant raised one ground of appeal, namely that the impoundment will result in exceptional hardship to her and her family. She advised that her family has had no vehicle and this period has been difficult. She states that the vehicle is needed to transport her stepson to his assessment and treatment appointments and to school. Her spouse has also not been able to work as he is unable to transport himself to various roofing job sites.

23With respect to the merits of the appeal, I find that the appellant had an arguable case.

24Overall, on a motion to extend time, the appellant need not establish her case on a balance of probabilities but only that her version of events, if believed, could result in the impoundment being overturned. I am satisfied the appellant met this low threshold.

25In summary I find that, in balancing the four factors, the justice of the case supports an extension of the appeal deadline. As a result, I grant the appellant’s motion for an extension to file her appeal.

B. Does the appellant have standing to appeal the impoundment of the vehicle?

26I found that the appellant has standing to appeal the impoundment of the vehicle and the Registrar’s motion is dismissed.

27The Registrar submits that the appellant lacks standing on this appeal because she was not the registered owner of the vehicle on the date it was detained in order to be impounded. I note that s. 50.2(1) and (2) of the Act reads:

50.2 (1) The owner of a motor vehicle that is impounded under section 55.1 may, upon paying the fee established by the Tribunal, appeal the impoundment to the Tribunal. 2009, c. 5, s. 22.

(2) The owner and the Registrar are the parties to an appeal under this section. 1997, c. 12, s. 5.

28The Registrar points to and relies upon s. 50.2(11) which defines an “owner”:

“owner” means each person whose name appears on the certificate of registration for the vehicle but in subsection (4) “owner” means the person whose name appears on the plate portion of a permit in cases where the certificate of registration consists of a vehicle portion and a plate portion and different persons are named on each portion.

29The appellant bought the vehicle for cash on the evening of February 29, 2024. She waited for a tow truck to tow the vehicle to her residence, and when it did not arrive, she began to drive the vehicle to her residence. She was stopped by the police and the vehicle was detained in order to be impounded as she was driving the vehicle while her licence was suspended as a result of a Criminal Code conviction. The police officer listed her name as the vehicle owner even though, at the time, the vehicle was still registered under the former owner’s name and the plates on the vehicle belonged to her spouse.

30On March 9, 2024, prior to the filing of the appeal, the vehicle was registered in the appellant’s name.

31After considering the above-noted sections of the Act, I am not convinced that the appellant, who is the current owner of the vehicle and the owner during the majority of the impoundment period, is precluded from appealing the impoundment of the vehicle she owns under s. 50.2 of the Act. I note that at the time of filing the Notice of Appeal, she was the registered owner of the vehicle.

32While the vehicle was not registered in the appellant’s name at the time it was detained in order to be impounded, I cannot conclude that she does not have standing as the owner. Once she became the registered owner of the vehicle, she had the statutory right to be a party as the “owner.” There is no dispute that she became the registered owner on March 9, 2024. I find that the crucial time for her to be the owner is the time that the appeal is heard. In my view, no other person other than the appellant would meet the definition of “owner” under the Act in order to have standing. I find the Tribunal’s reasoning in Feltz v. Registrar of Motor Vehicles, 2023 CanLII 113732 (ONLAT) to be persuasive here, as it similarly dealt with the transfer of ownership of a vehicle during the impoundment period.

33I conclude the appellant has standing to proceed and the Registrar’s motion is dismissed.

C. Whether the impoundment will result in exceptional hardship?

34The burden is on the appellant to prove on a balance of probabilities that the impoundment will result in exceptional hardship as it is defined in the Act and regulations. I find has met her burden.

35The Registrar presented uncontradicted evidence which establishes that:

a. on February 29, 2024, the police discovered the vehicle being driven by the appellant; and

b. the licence of the appellant was under suspension for a Criminal Code conviction at the time the police detained the vehicle for impoundment.

36Section 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.

37Subsection 10(1) requires the Tribunal to first consider whether an alternative to the impounded vehicle is available. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

[T]he 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.

38If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under s. 50.2(3)(d) of the Act will fail.

39If the owner proves that there is no alternative to the impounded vehicle available, then subsection 10(1) of the Regulation requires the Tribunal to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle, or to the environment or property of a community in whose service the motor vehicle is ordinarily used. According to subsection 10(3), if the appellant has proven that there is no alternative to the impounded vehicle the Tribunal may, in limited circumstances, consider financial, economic, or employment losses.

40The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

41The appellant testified that the vehicle is for her spouse’s use in order to meet their family’s needs and his work commitments. She testified that her seven-year-old stepson was recently diagnosed with autism and post traumatic stress disorder (“PTSD”). Her spouse would be using the vehicle to take her stepson to the Waypoint Centre in Penetanguishene for testing and treatment. She testified that her stepson needs a lot of outside resources to assist him. Since the impoundment, her stepson has not been able to attend the Waypoint Centre as scheduled. She advised that virtual appointments are not available as the Waypoint Centre staff monitor him for about two hours during each visit. His physical presence is required at appointments. She was required to reschedule his appointment to a period after the impoundment and when she is able to financially pay the impoundment fees.

42The appellant testified that her stepson would take the school bus to and from school. However, on March 4, 2024, he was removed from the bus due to behavioral issues related to his autism diagnosis. She testified that he is no longer permitted to ride in the school bus. He has not attended school since March 4, 2024 as there is no vehicle to transport him to school. His school is about a twenty-nine-minute drive from her residence. They are waiting for the return of the vehicle so that he can return to school. In the interim, he has been home-schooled and his school has been providing worksheets to complete.

43The appellant further testified that she has two biological children. There is a custody arrangement in place and the children spend one week with her and the next week with their biological father, her ex-partner. The children attend a school that is located about a 10-minute drive from her ex-partner’s home and about a one-hour drive from her home. The week that the children are staying with her, they are transported to school and back by her spouse. However, she has not been able to have them stay with her as there is no transportation available to take them to school.

44The appellant testified the vehicle is also needed by her spouse for employment purposes. He works in the roofing industry and he needs a vehicle to transport him and his tools to various job sites. She testified that he lost a job opportunity on March 1, 2024 after the vehicle was impounded and he was unable to attend job sites. She testified that he has secured other employment with a roofing company, but again, a vehicle is required to take him to different job sites and to transport his work tools. She testified that he has been unable to work.

45The appellant’s friend has taken her to the food bank to obtain groceries for the family. She testified that she has paid him $100 for his gas expenses to take her to the food bank and to doctor’s appointments. The food bank only provides food for a few days and she cannot afford to continue to pay her friend to take her to the food bank. She is also unable to use public transportation to attend the food bank given her health issues including a spine injury, chronic pain and physical limitations. She uses a cane or walker to walk. She testified that if she uses public transportation, she experiences chronic pain. She testified that given her physical limitations she is unable to take public transportation.

46The appellant testified that she does not have the funds to rent a vehicle for the impoundment period. The appellant testified that the vehicle is the only mode of transportation in her household and there is no alternative vehicle. A 2007 Mazda vehicle continues to be registered in her name but she testified that about two or three years ago it was totalled and she no longer has possession of it.

47I accept the appellant’s testimony that there is no alternative vehicle in her household and that she is unable to take public transportation given her spine injury and physical limitations. I further accept her testimony that her stepson has been unable to attend Waypoint Centre and his school given that he lost his bus privileges and the vehicle is not available to transport him. I accept her testimony that she has not seen her biological children in several weeks as transportation is not available to take them to their school if they stay at her residence. Her spouse has lost a job opportunity and his latest employment is based on him having a vehicle to transport him and his tools to job sites. He is unable to work without the vehicle as a means of transportation.

48I am not convinced that the appellant’s friend providing transportation is a reasonable alternative given the high cost of transportation, and her stated claim that she does not have the funds to keep paying him. I am satisfied that there are no reasonable alternatives to the impounded vehicle.

49I am also satisfied that the appellant has demonstrated, on a balance of probabilities, that the impoundment will result in a threat to the heath or safety of a person ordinarily transported by the vehicle. Her seven-year-old stepson, who has recently been diagnosed with autism and PTSD, has not been able to attend the Waypoint Centre for testing and treatment. These are supports that he requires given his diagnosis and struggles. His behavioral issues have resulted in him losing his school bus privileges. The appellant and her spouse are reliant on the vehicle to assist in his care and to obtain the needed resources at the Waypoint Centre to ensure his health and safety.

50Under the circumstances, I find the appellant has proven exceptional hardship and the appeal under s. 50.2(3)(d) of the Act is granted.

ORDER

51The appellant’s motion to extend the deadline for the filing of the appeal is granted and the appeal deadline is extended to March 19, 2024.

52The appeal is granted and I order the Registrar to release the appellant’s vehicle.