Cristan Doupe v. Registrar of Motor Vehicles, 2024 CanLII 54046

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:

Cristan Doupe Appellant

-and-

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

ADJUDICATOR: Jeffery Campbell, Vice-Chair

APPEARANCES:

For the Appellant: Cristan Doupe, Self-represented For the Respondent: Leila Pereira, Agent

Heard by teleconference: June 7, 2024

Overview

1Cristan Doupe (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 impoundment of her 2011 Ford Edge (the “vehicle”) on March 30, 2024. At the time of the impoundment, the vehicle was being driven by J.S. (the “driver”), who was driving while never having been licenced and whose MTO Reference status was listed as suspended due to a prescribed criminal conviction.

2The appellant filed the Notice of Appeal on May 17, 2024, 33 days after the required date of filing. The respondent opposed the motion for an extension of time.

3The appellant’s grounds of appeal are that she exercised due diligence and the impoundment will result in exceptional hardship.

4The parties agreed that, should the request for an extension of time be granted, we will proceed immediately to hear the appeal of the impoundment.

Issues

5The two issues to be determined are:

1. Should the appeal deadline be extended to allow the appeal to be filed and heard by the Tribunal?
2. Should the request for the extension of time be allowed, did the appellant exercise 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 under suspension and/or will the impoundment result in exceptional hardship as that term is defined in the Act and O. Reg. 631/98 (the “Regulation”)?

Result

6The motion to extend the deadline for the filing of the appeal is granted.

7The appellant has proven on a balance of probabilities that she exercised due diligence. It is therefore not necessary to consider whether the impoundment will result in exceptional hardship.

Analysis

A. Should the appeal deadline be extended?

8I find that, on balance, the justice of the case favours granting an extension of time to file an appeal. The appeal deadline is extended to June 7, 2024.

9According 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.

10In the appellant’s case, the vehicle was impounded on March 30, 2024. The appeal deadline was April 14, 2024, and the appellant filed her appeal on May 17, 2024.

11Pursuant 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.

12Determining 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.

13The 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.

14Taking all of these factors into account, I conclude that the justice of the case requires an extension of the appeal deadline.

Bona Fide Intention to Appeal within the Appeal Period

15I find that the appellant had a bona fide intention to appeal within the appeal period.

16In 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. However, the evidence indicates and the Registrar agreed that the NTR was never provided to the appellant because the officer did not follow protocol properly.

17A Notice of Impoundment and Release (“NOIR”) is also to be produced and entered at the time of impoundment into a SIMS system (a database on which impoundment information is entered). The Ministry of Transportation (“MTO”) then sends the NOIR, via Canada Post, to the owner of the vehicle. In this way, the owner of the vehicle is notified twice of the impoundment. The appellant testified that, although she checks her mail at least every other day, she did not receive the NOIR.

18The appellant testified that she had loaned her vehicle to the driver for a few days She testified that, as her car was not returned after that few days, she communicated with the driver through texts and telephone. He kept explaining that he would return the vehicle. Finally, on March 29th the driver ceased communicating with her. From March 29th to April 29th, the appellant attempted, without success, to find the driver by contacting his mother, his friends, and her own friends.

19In the meanwhile, the vehicle had been impounded on March 30, 2024

20The appellant testified that, on April 29, 2024, she received an email from the impounding OPP officer asking her for her assistance in locating the driver. The officer, via text and email, informed the appellant that her vehicle was impounded and, on April 30, 2024 provided the name and telephone number of the impoundment yard. The appellant produced screen shots of the communications between the OPP constable and herself confirming this testimony.

21The appellant then contacted the impoundment yard but did not receive any information with regards to how to appeal the impoundment. The appellant continued to contact the OPP, and ultimately received the NOIR from the OPP on May 9, 2024. The appellant testified that this is when she began communicating with the Licence Appeal Tribunal (the “Tribunal”).

22The appellant testified that she sent the required Notice of Appeal to the Tribunal by May 17, 2024.

23It is apparent from the evidence and the testimony that the OPP did not advise the appellant of the impoundment in a timely manner. I accept her testimony that she had no idea of the impoundment of the vehicle until she received the text from the OPP constable, which was April 29th. I also accept that it is credible that it took some days in order to discover the appeals process and to then send the appropriate appeals material, including the Notice of Appeal, to the Tribunal.

24With respect to her testimony that she did not receive the NOIR from the MTO, I accept her testimony in this regard. It would not make sense for her to have received the NOIR, then to have waited until after being contacted by the OPP looking for the driver to begin the appeals process. In fact, the delay on the part of the appellant would prejudice her, as she is responsible for the impound fees beyond the 45 day statutory impoundment period, whether she is successful on appeal or not. The evidence supports the conclusion that, once she did receive the information from the OPP at the end of April, regarding the impoundment of her vehicle, she intended to appeal the impoundment.

25As such, I conclude that the appellant had a bona fide intention to appeal the impoundment within the appeal period.

Length of the Delay

26The length of the delay was a matter of 33 days, which I find substantial but reasonably justified by the circumstances described above.

Prejudice to the other party

27The respondent submitted that the prejudice to the Registrar would be added cost of the impoundment, should the appellant be successful in her appeal.

28Had the appellant received timely notice of the impoundment and appealed by the end of the appeal period, the Registrar would also have been responsible for the cost of the impoundment from the date of impoundment until the date of the Tribunal’s decision. I agree that the potential for added cost is prejudicial to the respondent, although it is impossible to quantify that prejudice as it is unknown as to when that Tribunal decision would have been released. I am also mindful that any added cost would at its core result from the fact that, as I found above, the appellant was not advised of the impoundment and her appeal rights in a timely manner.

Merits of the appeal

29It 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 her appeal has some merit. The appellant is appealing on the grounds of due diligence and exceptional hardship.

30On the basis the appellant’s submissions regarding the vehicle and her circumstances, I find that there is some merit to the grounds put forward.

31Overall, the justice of the case supports extending the appeal deadline. The appellant did not have the opportunity to learn of the impoundment and of her appeal rights in a timely way. As a result, I extend the deadline to appeal to June 7, 2024, and my decision on the merits of the appeal is set out below.

32The motion to extend the deadline for the filing of the appeal is granted.

The appellant exercised due diligence in accordance with s. 50.2(3)(c) of the Act.

5The burden of proof is on the appellant to establish on the balance of probabilities, which means that it is more probable than not, that she exercised due diligence in attempting to determine if the appellant had a valid driver’s licence that was not suspended.

6In the context of an appeal under s. 50.2(3)(c) of the Act, due diligence means taking all reasonable care, and what a reasonable person would have done in the same or similar circumstances. Due diligence does not require perfection.

7Whether the ground of due diligence has been made out is highly fact-specific, and whether efforts are considered to be reasonable will depend on the circumstances.

8Examples of what reasonable actions might be in these circumstances can be found in the Tribunal’s decision in 10719 v. Registrar of Motor Vehicles, 2017 CanLII 35348 (ON LAT):

There is a range of actions for a vehicle owner to check the status of another person’s driver’s licence before letting that person drive their vehicle. This could range from asking the person if they have a valid driver’s licence, asking to see or examine a person’s driver’s licence, or using the Ministry’s telephone or online checking service and paying a small fee to verify the status. The level of inquiry and action required will depend on the nature of the relationship between the owner and the driver, as well as on the situation – for example, whether there was an indication that the driver had a past history of licence suspensions.

24The respondent presented documentary evidence which established that the appellant is the registered owner of the vehicle and that the vehicle was stopped while being driven by J.S. who was driving while never having being licenced and whose MTO Reference status was listed as suspended due to a prescribed criminal conviction. I am therefore satisfied that the vehicle was validly impounded.

27The appellant testified that, when the driver asked if he could use her vehicle, she requested to see his licence. She said that she observed that the licence was a driver’s licence, was blue, had his picture and his date of birth.

28The respondent presented an Extended Driver Record Search of the driver which states that the driver was never licenced. The respondent also presented a Driver Record of the driver which establishes that the driver was an Ontario Photo Card Holder since August 22, 2018. The respondent submits that the driver did not have, nor ever did have, an Ontario driver’s licence.

29The appellant re-confirmed under cross-examination that she saw the driver’s licence. She advised that it must have been fraudulent.

30The appellant testified that she had seen the driver drive his motorcycle, his mother’s vehicles, and his friends’ vehicles in the past.

31The appellant admitted that she did not check the MTO website to check the status of the J.S.’s driver’s licence, as she was not aware that she could do that.

32I find that in the context of this appeal, it is not incomprehensible that the driver had shown the appellant a fraudulent driver’s licence. Such an action fits the narrative of his actions, having dishonestly borrowed the vehicle for a limited time, having ceased communications with the appellant after failing to return the vehicle, and having been the subject of a subsequent search by the OPP, for whatever reason.

33I also found the appellant’s testimony to be straightforward and credible, although at times confusing. She did not exhibit any evasiveness and was forthright in her testimony.

34I am satisfied that the appellant asked to view the driver’s licence, and that she concluded that it was valid. I am also satisfied that it is not required of every driver to be aware of the opportunity to verify the licence on the MTO, and that few citizens are aware of this option.

35I conclude that 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 detained in order to be impounded was not under suspension.

36Having found that the appellant exercised due diligence, I need not consider the ground of exceptional hardship.

Conclusion

37Given the above, and based upon the evidence, I find that the appellant has established on a balance of probabilities that the appellant exercised due diligence.

I ORDER AS FOLLOWS:

38The appeal deadline is extended to June 7, 2024.

39I order the respondent to release the appellant’s vehicle.

LICENCE APPEAL TRIBUNAL

Jeffery Campbell, Vice-Chair