16250

Licence Appeal Tribunal File Number: 16250/MVIA

In the matter of 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 the Act.

Between:

Deborah Holenski

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

Vice-Chair:

Hande Bilhan

APPEARANCES:

For the Appellant:

Deborah Holenski, Appellant

For the Respondent:

Leila Pereira, Agent

Heard by Teleconference:

October 2, 2024

OVERVIEW

1Deborah Holenski (the “appellant”) appeals the impoundment of her 2018 Mercedes Benz CLA on August 17, 2024, for 45 days under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). At the time of the impoundment, she was driving the vehicle while her driver’s licence was subject to an Ignition Interlock Device (“IID”) condition as a result of a Criminal Code suspension under section 41 of the Highway Traffic Act (the “Act”).

2The owner of a vehicle which has been impounded in accordance with s. 55.1 may, under the provisions of s. 50.2 of the HTA, appeal the impoundment and request an order from the Licence Appeal Tribunal (the “Tribunal”) allowing the appeal and that the Registrar release the vehicle.

3A vehicle owner may only appeal a vehicle impoundment on one or more of the five grounds provided in subsection 50.2(3). The appellant appeals on two grounds:

1. s. 50.2(3)(b.1), that the driver's licence of the driver was not then subject to the condition described in paragraph 2 of subsection 55.1; and,

2. s. 50.2(3)(d), that the impoundment of the appellant’s vehicle will result in exceptional hardship.

PRELIMINARY ISSUE – APPELLANT’S MOTION TO EXTEND TIME TO APPEAL

4The appellant filed a Notice of Motion dated September 12, 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”).

5The appellant states in her Notice of Motion that she did not file her appeal in time due to confusion caused by different direction and advice she received from various officials.

6The respondent opposed the appellant’s motion for extension of time.

ORDER ON MOTION

7I granted the appellant’s motion to extend the time to file her appeal. This order was given orally for the following reasons.

ANALYSIS ON MOTION

8Section 9 of O. Reg. 631/98 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 burden is on the appellant to show that there are reasonable grounds for granting an extension of time. The Tribunal considers 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:

a. The existence of a bona fide (good faith) 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.

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 inflexibly followed.

12I will consider these factors below in light of the evidence of the appellant and her 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 contacted X-Coppers on August 22, 2024, the day her vehicle was impounded but she did not retain them as their fee was too high. She was told to appeal to the York Region Police (“YRP”) or the Tribunal. On August 23, 2024, one day after the impoundment of her vehicle, she contacted both. The Tribunal informed her that her appeal would take 4-6 weeks to process, so she proceeded to pursue other options put forth by various sources and individuals working for the MTO, the YRP, X-Coppers and the Tow Truck company in order to get her vehicle back as soon as possible. She testified that she was under extreme stress and pressure as schools were about to open and as an itinerant teacher at two different schools, she needed her vehicle as the schools are in two different towns. She was also under the impression that if she resolved the missing substance use form to remove the IID condition, this would help to resolve the impoundment. She therefore also pursued attaining the necessary form and getting it completed by her doctor.

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 for several weeks. I note that the NOIR filed by the respondent is dated September 15, 2024, and was not provided to the Tribunal until September 24, 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 timeframe for appeal.

16I find that the appellant’s delay in filing her appeal was due to confusion around the process and her lack of experience in navigating the system.

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 good faith intention to appeal the impoundment during the appeal period.

Length of the delay

18The time for appeal expired September 6, 2024. The appellant’s Notice of Appeal was received by the Tribunal September 12, 2024. .

19I find there has not been substantial delay in filing the appeal by the appellant, particularly given the delay she has experienced in receiving the NOIR which would have provided clear guidance on the appeal process. Even if the appellant had filed her appeal by the required date of September 6th, her application would have been incomplete until the NOIR and the Notice to the Registrar were received by the Tribunal. This did not happen until September 24, 2024, so her delayed application on September 12th did not delay the proceedings.

Prejudice to the other party

20The respondent submitted that the delay in filing her appeal could have been avoided by the appellant finding out about filing her appeal on time and that the delay in receiving the NOIR is not related to the filing of the appeal. I disagree. The NOIR contains important information about next steps for the person whose vehicle is impounded, including their right to an appeal and how to proceed with an appeal. Therefore, it is directly related to an 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 be heard.

Merits of the appeal

22The appellant testified that she has two grounds of appeal she wishes to put forward at the hearing. She has made several submissions to the Tribunal to support her case.

23The appellant appears at this early point to have at least an arguable chance of success on her grounds of appeal.

Result

24I 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 follow.

SUBSTANTIVE ISSUES

27The issues in dispute are:

1. Whether pursuant to s. 50.2(3)(b.1), the appellant has proven that the driver's licence of the driver was not then subject to the condition described in paragraph 2 of subsection 55.1; and,

2. Whether the impoundment of the appellant’s vehicle will result in exceptional hardship under s. 50.2(3)(d) of the HTA.

RESULT

28I find the appellant has not established that her licence was not subject to the condition under s. 55.1(1)2 at the time the vehicle was detained for impoundment.

29I further find that the impoundment will not result in exceptional hardship as defined under s. 50.2(3)(d) of the Act.

30I therefore confirm the impoundment of the vehicle.

ANALYSIS

Circumstances leading to the impoundment

31Under s. 55.1 of the Act, where a police officer is satisfied that a person was driving a motor vehicle while his or her licence is under suspension, or subject to conditions for certain driving-related Criminal Code convictions, the officer must detain and impound the vehicle.

32On August 22, 2024, the appellant was pulled over for a routine traffic check while she was leaving the parking lot of a store. As her licence was subject to an IID condition at the time, and the vehicle was not equipped with one, she was arrested for driving while prohibited, contrary to Section 320.18 of the Criminal Code and her vehicle was impounded for 45 days under section 55.1 of the HTA.

Was the Licence of the Driver subject to an IID condition?

33The appellant submitted that she was unaware of the IID condition on her licence. After her 2018 criminal conviction, she believed she had completed all necessary steps, including finishing the in-person Back on Track course and refraining from driving for a year.

34After her arrest, in her efforts to clarify the IID condition and how to have it removed, she learned that she had not completed the required Substance Use Assessment Form, which needed to be filled out by a doctor and submitted to the MTO. Although she was informed that this form was mailed to her in April 2020, she testified that she never received it. She further argued that it was illogical for her not to follow through on this simple step after completing all other requirements to regain her driving privileges. As evidence, she noted that she completed and submitted the form within 24 hours of learning about it, after which she received a temporary licence with the IID condition removed within a week.

35The Registrar submitted that the driver’s licence bears an “I” for IID condition, that the appellant never followed up on further steps to remove the condition and never received a new licence without the condition indicated on the licence before the impoundment. She therefore concludes that the appellant ought to have known and should have followed up to have the condition removed.

36I find that the appellant has been forthcoming, sincere and consistent in presenting her evidence and in her testimony. While I accept her testimony and sympathize with her ordeal, s. 50.2(3)(b.1) does not provide reprieve for lack of awareness of an IID condition. The test is whether her licence was not subject to an IID condition at the time that she was driving her vehicle, and it was impounded. I find that she has not established that this was the case. Therefore, this ground of appeal under s. 50.2(3)(b.1) of the HTA does not succeed.

Will the impoundment result in exceptional hardship as defined in the Regulation?

37Section 10 of Regulation 631/98 sets out the factors the Tribunal is to consider when determining whether an impoundment will result in exceptional hardship.

38In determining whether exceptional hardship will result from an impoundment under section 55.1 of the Act, the Tribunal shall not consider whether the impoundment will result in inconvenience, financial or economic loss, or loss of employment or employment opportunity. The Tribunal may consider the criteria set out above, if the owner demonstrates that, no alternative to the impounded motor vehicle is available, the loss will be immediate, significant and lasting, the impact of the loss will be upon a person ordinarily transported by the motor vehicle, and the impact of the loss will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the impoundment of the motor vehicle, and will not be a result of a loss by the suspended driver. Since the only person allegedly impacted by the impoundment is the appellant, who was the suspended driver when the vehicle was impounded, and since there was no allegation that the impoundment would result in a threat to the health or safety of any person or to the community, her appeal on this ground cannot be successful.

CONCLUSION AND ORDER

39Neither of the appellant’s grounds for appeal succeed. Accordingly, pursuant to subsection 50.2(5) of the HTA, I confirm the impoundment of the appellant’s vehicle.