Harding-Murtland v. Registrar of Motor Vehicles, 2024 CanLII 54049

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:

Haley Harding-Murtland

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Jeffery Campbell, Vice-Chair

Appearances:

For the Appellant: Haley Harding-Murtland, Self-represented

For the Respondent: Sadia Ashraf, Agent

Heard by teleconference: June 3, 2024

Overview

1Haley Harding-Murtland (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 2008 Saturn Astra (the “vehicle”) on April 27, 2024. At the time of the impoundment, the vehicle was being driven by J.K. (the “driver”), whose driver’s licence was suspended due to a Criminal Code conviction of driving while impaired.

2The appellant filed the Notice of Appeal on May 14, 2024, 2 days after the required date of filing. The respondent opposed the motion for an extension of time.

3The appellant’s ground of appeal is that 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, 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 the impoundment of the vehicle will result in exceptional hardship. I therefore order the release of the impounded vehicle.

Analysis

A. Should the appeal deadline be extended?

8I find that, on balance, the justice of the case favours the granting of an extension of time to file an appeal and the appeal deadline is extended to May 14, 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 April 27, 2024. The appeal deadline was May 12, 2024 and the appellant filed her appeal on May 14, 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 before the expiration of 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 provides the driver of the vehicle with a Notice of Impoundment and Release (the “NOIR”), on the back page of which is information on how to appeal the impoundment. The officer is then to enter the impoundment into the SIMS system which alerts the Ministry of Transportation (the “Ministry”) of that impoundment. The Ministry then produces a Notice to Registrar (the “NTR”), again on the back page of which is information on how to appeal the impoundment. That NTR is then sent to the owner of the vehicle. In this case, neither the NOIR nor the NTR were produced until May 23, 2024, 26 days after the impoundment.

17In the interim, shortly after the impoundment, the appellant investigated as to the whereabouts of the vehicle and discovered that it had been impounded and was located at Ward’s Towing in Tillsonburg, Ontario. She further investigated online and discovered that she could appeal the impoundment to the Tribunal. The appellant then submitted the Notice of Appeal. However, she was unaware of the 15-day deadline of appealing the impoundment. The appellant testified that she waited until May 14, 2024 rather than earlier, in order to have the filing fee available, as she is of a limited income and does not have access to credit. She testified that she was unaware that the fee payment could have been paid after the filing of the appeal.

18Based upon the appellant’s evidence, I am satisfied that she had a bona fide intention to appeal within the appeal period. In fact, had it not been for the efforts of the appellant, the Ministry would have never been informed of the impoundment pursuant s. 55 of the Act. It is evident that the appeal was delayed, in part, due to the breach of protocol by the Ontario Provincial Police who detained and impounded the vehicle and failed to provide the requisite and NOIR which would have provided the appellant with timely information on the appeals process. The other part of the delay is due to the appellant waiting for the funds to pay for the appeal. Notwithstanding those factors, the evidence supports the appellant’s claim that she had a bona fide intention to appeal the impoundment of her vehicle.

Length of the Delay

19The length of the delay was a matter of 2 days, which I do not find substantial, particularly in the light of the failure of the appellant to have received the NTR and the NOIR in a timely manner.

Prejudice to the other party

20The respondent submitted that the prejudice to the Registrar would be added cost of the impoundment for an extra 2 days. I agree that this is prejudicial to the respondent. However, this prejudice is not significant.

Merits of the appeal

21It 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 exceptional hardship.

22On the basis the appellant’s submissions regarding the vehicle and her circumstances, I find that there is some merit to the ground of exceptional hardship.

23Overall, the justice of the case supports extending the appeal deadline. As a result, I extend the deadline to appeal to May 14, 2024, and my decision on the merits of the appeal are set out below.

B. The impoundment of the vehicle will result in exceptional hardship

24Section 10 of O. Reg. 631/98 (the “Regulation”) sets out the criteria and factors that the Tribunal 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 to the impounded vehicle, with s. 10(4) of the Regulation requiring the owner to 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 vehicle during the impound period. If the Tribunal find that there is an alternative to the impounded vehicle, then the appeal will fail and the Tribunal need not consider any other requirements of the test for exceptional hardship.

25If the owner demonstrates that there is no alternative to the impounded vehicle, the Tribunal must consider, in accordance with section 10 of the Regulation, whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle or 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. The Tribunal is prohibited from considering whether the impoundment will result in inconvenience to any person. It may consider financial or economic loss, but only if the loss will be immediate, significant and long-lasting and the impact will be on a person ordinarily transported by the vehicle other than the suspended driver.

26The 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.K. while his licence was under suspension due to a criminal conviction. I am therefore satisfied that the vehicle was validly impounded.

27The appellant testified that she lives alone with her two-year-old daughter and three-year-old son in Tillsonburg, Ontario. She had recently moved to Tillsonburg from Simcoe, Ontario. She testified that she has no family or friends in Tillsonburg. Her mother, who is on Ontario Disability Support Payments, lives ‘on the other side’ of Simcoe, which is at least a half hour drive from Tillsonburg. Her mother cannot afford to drive from Simcoe to Tillsonburg to assist her.

28The appellant testified that she is not employed but is receiving Ontario Works and Canada Child Benefits. She does not have access to credit, as her Visa account has surpassed its limit.

29The appellant testified that, while taxis, ride-sharing and car rentals are available in Tillsonburg, they are cost prohibitive due to her limited income and lack of accessibility to credit. She did not present any evidence with respect to public transit in Tillsonburg, but did note that, since the impoundment, it has been necessary for her to walk 20-25 minutes each way with her two children to obtain groceries and diapers.

30The appellant testified that her three-year-old daughter has eczema, but that is currently under control. However, her two-year-old son has a serious case of dermatitis. Her son’s pediatrician has advised her that his dermatitis is “one of he worst he has seen”.

31The appellant’s son’s pediatrician, as well as her pharmacy, are both located in Simcoe. Since the impoundment, it has been necessary for her to reschedule her son’s pediatric appointment and may have to reschedule it again if she lacks the transportation. She testified that her son is prescribed a topical steroid as well as anti-biotics in order to attempt to control the dermatitis. She testified that it is necessary for her to obtain those prescriptions from the Simcoe pharmacy as they cover the costs of those medications ($100.00 to $120.00 per month), and she has been advised by the pharmacy in Tillsonburg that it will not.

32The respondent submits that the appellant has alternative transportation in the form of ride-sharing, taxis and rental vehicles. She also has access to 911 services. As such, she submits that the appellant has failed to meet the test of exceptional hardship. The respondent requests that the Tribunal confirm the impoundment of the vehicle.

Conclusion

33While I agree alternatives are indeed available to the general public, they are none-the-less de facto unavailable to those who do not have the funds to afford them. This is such the case of the appellant. Also, as the appellant also does not have the benefit of friends or family for transportation, I find that she has established that she has no reasonable alternative to the vehicle.

34I also find that the impoundment poses a threat to the health or safety of a person ordinarily transported by the vehicle, namely the appellant’s son. The lack of treatment of her son’s dermatitis is a serious concern. This concern would extend to the end of the impoundment period, and thereafter, should the appellant be unable to reclaim her vehicle.

35Given the above, and based upon the evidence, I find that the appellant has established on a balance of probabilities that the impoundment of the vehicle will result in exceptional hardship as defined by the Act and the Regulation.

I ORDER AS FOLLOWS:

36The appeal deadline is extended to May 14, 2024.

37I order the respondent to release the appellant’s vehicle.

LICENCE APPEAL TRIBUNAL

Jeffery Campbell, Vice-Chair