Licence Appeal Tribunal File Number: 15987/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:
Allison Lareau
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
VICE-CHAIR: Avril A. Farlam
APPEARANCES:
For the Appellant: Allison Lareau, Self-represented
For the Respondent: Sadia Ashraf, Agent
Heard by Teleconference: June 24, 2024
OVERVIEW
1Allison Lareau, the appellant, appeals from the impoundment of her 2008 Pontiac, the vehicle, on May 24, 2024 for 45 days. At the time of the impoundment the vehicle was being driven by the appellant whose licence was suspended.
2The appellant appeals on two grounds. Firstly, on the ground that she exercised due diligence in attempting to determine that her driver’s licence was not under suspension at the time of the impoundment of the vehicle. Secondly, the appellant appeals on the ground that the impoundment will result in exceptional hardship to her because she needs the vehicle to provide transportation for her daughter to get to high school and, to care for her father who lives in another municipality. The appellant also states that the impoundment is a financial hardship to her.
PRELIMINARY ISSUE – APPELLANT’S MOTION TO EXTEND TIME TO APPEAL
3The appellant filed a Notice of Motion dated June 13, 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 the vehicle by the Registrar of Motor Vehicles (the “respondent”).
4The appellant states in her Notice of Motion that she did not file her appeal in time due to lack of experience and knowledge on the required steps to do so.
5The respondent opposed the appellant’s motion for extension of time.
6The issue on this motion is whether the Tribunal should extend the time for the appellant to file her appeal.
ORDER ON MOTION
7I granted the appellant’s motion to extend the time to file her appeal. This order was given orally for reasons to follow. The following are my reasons.
ANALYSIS ON MOTION
8Section 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.
9The 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.
10To 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:
- The existence of a bona fide (good faith) intention to appeal [within the appeal period];
- The length of the delay;
- Prejudice to the other party; and
- The merits of the appeal.
11The 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.
12I 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
13I find that there is sufficient evidence that the appellant had a good faith intention to appeal within the appeal period.
14The appellant testified that she found out from an internet search of her right to appeal the impoundment to the Tribunal on Friday, June 7, 2024 but could not pay the filing fee and wanted to speak to Tribunal staff about her payment options. Because of the intervening weekend on June 8 and 9, she was not able to speak with Tribunal staff and receive the payment information she needed until Monday June 10, 2024. As a result of this delay in receiving payment information, the appellant testified that she did not file the Notice of Appeal until Tuesday, June 11, 2024.
15The appellant also testified that the Notice of Impoundment and Release (“NOIR”) which contains information about the process for appeal to the Tribunal was not sent to her until after June 19, 2024. The NOIR filed by the respondent is dated June 19, 2024. Given this evidence, I find that the NOIR could not have been received by the appellant within the legislated time for appeal of 15 days. The result is that the information about the appeal process was not provided to the appellant within the time for appeal.
16I find that the appellant’s delay in filing her appeal was due to her need to obtain payment information from the Tribunal.
17Given the appellant’s efforts to find out how to file her appeal during the appeal period, 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
18The time for appeal expired June 8, 2024. The appellant’s Notice of Appeal was received by the Tribunal June 11, 2024, some three days late.
19I find there has not been substantial delay in filing the appeal by the appellant.
Prejudice to the other party
20The respondent submitted that the three-day delay in filing her appeal could have been avoided by the appellant finding out about filing her appeal.
21I 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
22Here the appellant testified that she has two grounds of appeal she wishes to put forward at the hearing.
23The 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 her grounds of appeal.
24To 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.
25As 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.
26The 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
27The issues in dispute are:
i. Issue 1: Did the appellant exercise due diligence in accordance with s. 50.2(3)(c) 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
28I find that the appellant did not exercise due diligence. I find that the impoundment will not result in exceptional hardship
ANALYSIS
29The 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.
30An 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.
Issue 1: Did the appellant exercise due diligence in accordance with s. 50.2(3)(c) of the HTA
31I 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 her driver’s licence was not under suspension at the time of the impoundment of the vehicle.
32To 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.
33There is no evidence from the appellant that she exercised any due diligence at all.
34The appellant testified that she had no reason to check the status of her driver’s licence because following her appearance in Court on May 3, 2024, and her guilty plea to a charge under the Criminal Code of Canada of dangerous driving because she received a discharge conditional on a period of probation.
35The appellant testified that she was led to believe by the Judge, her lawyer and her probation officer that this would not affect her driver’s licence.
36The appellant said that she advised by the Judge that the Judge was not imposing and driving restrictions and that the appellant is “okay to drive”. However, the appellant admitted that she was not given any document by the Judge confirming that her driver’s licence is unaffected by her guilty plea to the dangerous driving charge.
37The appellant said that her lawyer did not tell her that her driver’s licence would be affected by her guilty plea. However, the appellant did not put forward any document from her lawyer confirming this.
38The appellant said that her probation officer did not tell her about any driving restrictions. However, the appellant admitted that the probation order has nothing in it about the appellant’s driver’s licence.
39I find the appellant’s evidence on this point is not reliable. The appellant’s evidence is not corroborated by any document from the Court, her lawyer or her probation office, or the testimony of any other witness.
40The appellant testified that she did not receive the respondent’s May 10, 2024 letter advising her that her driver’s licence had been suspended and therefore had no knowledge that her driver’s licence was suspended and had no reason to check the status of her driver’s licence after May 3, 2024. However, I find that the fact that she had pled guilty to a dangerous driving charge under the Criminal Code in Court on May 3, 2024, and had received a conditional discharge involving probation, is a reason to check the status of her driver’s licence after May 3, 2024 and should reasonably have prompted the appellant to confirm with the Ontario Ministry of Transportation whether her driver’s licence was still in good standing. The appellant testified that she did not do any on-line search and did not contact the Ministry of Transportation to confirm the status of her driver’s licence until after the impoundment.
41The appellant has not established that she took reasonable steps to determine that her driver’s licence was not under suspension at the time of impoundment of the vehicle.
42I 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 her driver’s licence was not under suspension at the time of the impoundment of the vehicle.
Issue 2: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation
43I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.
44Section 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:
45The 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.
46If 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.
47I 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.
48Further, s. 10(3)(d) of the Regulation provides that the Tribunal may only consider financial, employment and education or training losses listed in s. 10(2) of the Regulation if the impact of the loss will be on a person other than a person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle.
49Pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
50Although the appellant stated in her Notice of Appeal and in her written submissions that she needs the vehicle to have someone drive her daughter to school in the morning because the municipal bus is not available in the morning, the appellant could not recall what time the bus service starts in the morning. The appellant also testified that she has been able to hire an uber to take her daughter to school except for four or five days during the impoundment period. Although the appellant testified that this is financially difficult for her, I find that uber is an alternative means of transportation which is available to her and she has used for her daughter.
51Although the appellant testified that she needs her vehicle so that she can care for her father, the appellant stated that her father resides in a care facility where medical care is available to him when she cannot take him to see his doctor.
52Although it is apparent from the appellant’s testimony that the impoundment fees and other expenses arising from the impoundment will be a financial burden for her, 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.
53I find that the appellant has alternatives to the impounded vehicle including the use of taxis and ubers, and the use of the municipal bus, albeit at a cost.
Conclusion
54The appellant has not established either of her grounds of appeal.
55The appellant has not established that she exercised due diligence in attempting to determine that her driver’s licence was not under suspension at the time of the impoundment of the vehicle, within the meaning of s. 50.2(3)(c) of the HTA.
56I 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:
57Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.
LICENCE APPEAL TRIBUNAL
____________________________
Avril A. Farlam, Vice-Chair
Released: July 08, 2024