Tribunals Ontario Licence Appeal Tribunal
Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis
Licence Appeal Tribunal File Number: 16159/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:
Vahid Nouri Appellant
and
Registrar of Motor Vehicles Respondent
DECISION
VICE-CHAIR: Avril A. Farlam
Appearances:
For the Appellant: Vahid Nouri, Self-represented
For the Respondent: Leila Pereira, Agent
HEARD: September 25, 2024
OVERVIEW
1Vahid Nouri, the appellant, appeals from the impoundment of his 2013 Mazda, the vehicle, on August 6, 2024 for 45 days until September 20, 2024. At the time of the impoundment the vehicle was being driven by the appellant whose licence was suspended.
2The appellant appeals on the ground that the impoundment will result in exceptional hardship to him because the impoundment fees are a financial hardship to him.
PRELIMINARY ISSUE – APPELLANT’S MOTION TO EXTEND TIME TO APPEAL
3The appellant filed a Notice of Motion dated September 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 his Notice of Motion that he did not file his appeal in time because he did not receive the Notice of Impoundment (“NOI”) on until September 13, 2024.
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 his appeal.
ORDER ON MOTION
7I granted the appellant’s motion to extend the time to file his 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 he found out from research on the internet that he had a right to appeal the impoundment to the Tribunal on August 12, 2024.
15The appellant paid the appeal fee to the Tribunal before August 14, 2024.
16The appellant testified that he did not file the Notice of Appeal within 15 days of the impoundment, until he received the NOI in the mail.
17The appellant testified that he received the NOI in the mail September 13, 2024 and he filed his Notice of Appeal and Notice of Motion to extend the time for filing his appeal on September 13, 2024.
18The NOI which contains information about the process for appeal to the Tribunal is dated August 27, 2024, more than 15 days after the impoundment. As a result, I find that the NOI could not have been received by the appellant within the legislated time for appeal of 15 days. As a result, the information about the appeal process was not provided to the appellant within the time for appeal.
19I find that the appellant’s delay in filing his appeal was due to his understanding that he needed to have the NOI in order to complete the appeal process. Although this is not correct, given that the appellant did not have the NOI in hand when preparing his appeal, it is a reasonable explanation for his not filing his Notice of Appeal in time.
20Given the appellant’s efforts to find out how to appeal during the appeal period and payment of the appeal fee within the 15 day appeal period, I find that the appellant has established that he had a good faith intention to appeal the impoundment during the appeal period.
Length of the delay
21The appellant’s fee for the filing of his appeal was received by the Tribunal before the time for filing his appeal expired, although his appeal was not perfected until he received the NOI.
22In these circumstances, I find there has not been substantial delay in filing the appeal by the appellant.
Prejudice to the other party
23I find that the prejudice to the appellant if his 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
24Here the appellant testified that he has one ground of appeal he wishes to put forward at the hearing, the ground of exceptional hardship.
25The 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 his grounds of appeal.
26To 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 he 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 in these particular circumstances, 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.
27As 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.
28The appellant’s appeal was heard immediately following the hearing of his motion. My decision on the appeal and the reasons for it are as follows.
ISSUE
29The issue in dispute is:
i. Issue 1: Will the impoundment will result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation.
RESULT
30I find that the impoundment will not result in exceptional hardship.
ANALYSIS
31The 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.
32An 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 ground (d), that the impoundment will result in exceptional hardship.
Issue 1: Will the impoundment result in exceptional hardship under s. 50.2(3)(d) of the HTA and s. 10 of the Regulation
33I find that the impoundment will not result in exceptional hardship because the appellant has alternatives available to the impounded vehicle.
34Section 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:
35The 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.
36If 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.
37I 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.
38Further, 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.
39The appellant testified that he works part-time one or two days a week and starting attending post-secondary school approximately September 9, 2024. The appellant confirmed that he has been able to attend his work, his school, and attend to his personal needs and appointments such as obtaining groceries during the impoundment period by walking, using public transit including the bus and subway, and by using ubers when necessary.
40Although the appellant testified that the impoundment has made his life more difficult, pursuant to s. 10(2)(a) of the Regulation, the Tribunal may never consider whether the impoundment will result in inconvenience to any person.
41Although the appellant stated in his Notice of Appeal that the 45 day impoundment “…seems to be for no good reason”, the respondent’s evidence and submissions establish that the impoundment for was made in accordance with the law.
42Although 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 him, 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.
43I find that the appellant had alternatives to the impounded vehicle during the impoundment period including the use of public transit including the subway and the bus, walking, and using uber.
Conclusion
44I 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:
45Pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.
Released: October 1, 2024
LICENCE APPEAL TRIBUNAL
Avril A. Farlam, Vice-Chair```