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:

Winifred A. King

Appellant

and

Registrar of Motor Vehicles

Respondent

ADJUDICATOR: Jan Dymond, Vice-Chair

APPEARANCES:

For the Appellant: Winifred A. King, Appellant Amber Valyear, Daughter of Appellant Terence Devine, Paralegal

For the Respondent: Sadia Ashraf, Agent of the Registrar

Heard by teleconference: December 12, 2024

OVERVIEW

1Winifred A. King (the “appellant”) appeals the 45-day impoundment of her 1998 Toyota Corolla under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The vehicle was impounded on October 25, 2024. At the time of the impoundment, William Travis Budd (“the driver”) was driving the vehicle while his licence was under suspension resulting from a prescribed criminal conviction.

2The appellant appealed the impoundment to the Tribunal on November 12, 2024.

3The appellant’s vehicle was released to the appellant prior to the hearing upon the termination of the 45-day impoundment period.

ISSUES TO BE DETERMINED

4The issues to be determined are:

Whether the appeal deadline should be extended to allow the appeal to be filed and heard by the Tribunal?
Whether 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 impounded was not then under suspension. under s. 50.2(3)(c) of the Act.
Whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.

RESULTS:

5I find that the justice of this case warrants an extension of the time for filing the appeal. The appellant’s motion is therefore granted and consequently the appeal may be heard.

6I find the appellant has not shown, on a balance of probabilities, 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 impounded was not then under suspension, under .50.2(3)(c) of the Act.

7I find the appellant has not shown that, on a balance of probabilities, the impoundment will result in exceptional hardship under s.50.2(3)(d) of the Act.

PROCEDURAL MATTERS

Appellant’s failure to serve the other party with a Notice of Motion

8Rule 15.1 requires the moving party to serve the notice of motion and all supporting documents on the other parties before filing with the Tribunal. The respondent indicated at the start of the hearing that a motion filed with the Tribunal on November 28, 2024 had not been served with the respondent as required under Rule 15.1 of the Licence Appeal Tribunal Rules, 2023 (the “Rules”).

9The appellant submitted that she had not served the respondent because she did not have contact information for the respondent, had no way to locate it, and had assumed the Tribunal would forward the material.

10I find the appellant’s reason for failing to comply with the Tribunal’s procedures unsatisfactory. In addition to Rule 15.1, Rule 4.3 clearly states that all communications, other than a request for summons, must be copied to the other parties. I note that emails exchanged between the Tribunal, the appellant and the respondent from November 18 to November 22 and submitted as evidence by the appellant were copied to several agents of the respondent. Further, the appellant could have asked the Tribunal Case Management Officer for the respondent’s contact information.

11The respondent agreed to receive the motion via email. I granted a short break for the respondent to review the motion and to consider whether they would consent to the late service of the motion. Upon review, the respondent consented to late service of the motion, which I proceeded to consider at the hearing.

Motion to extend time for the appeal

12The appellant’s motion to extend the time to file her appeal from the impoundment order is granted.

13 Section 9 of O. Reg 631/98 under the Act (the “Regulation”) stipulates that an appeal under s. 50.2 of the Act, with respect to the impoundment of a motor vehicle under s. 55.1, must be filed with the Tribunal no later than 15 days after the day the vehicle was detained for impoundment.

14Under s. 7 of the Licence Appeal Tribunal Act, 1999, the Tribunal may extend a time limitation under the Act or Regulation to file an appeal if the Tribunal is satisfied there are reasonable grounds for doing so.

15The grounds for considering an extension are articulated in Manuel v. Registrar of Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492. On a motion to extend the time to appeal, the Court determined that the overriding consideration is whether the justice of the case compels the Tribunal to conclude that granting an extension is appropriate. The factors to consider in deciding the justice of the case are:

a genuine intention to appeal within the appeal period;
the length of the delay;
prejudice to the other party; and
the merits of the appeal.

16The analysis requires a balancing of these factors applied to the facts. No one factor takes precedence over the others. The overriding consideration is whether the “justice of the case” requires that an extension be granted.

17The appellant has the onus to demonstrate a factual foundation for the reasonable grounds to grant the extension. The parties did not address all four factors directly; however, having considered the circumstances of the case as described by the parties’ submissions in relation to three of the four factors, namely intention to appeal length of the delay and merits of the appeal, I conclude that the justice of the case requires an extension of the time limit for the following reasons.

Genuine intention to appeal within the appeal period

18The appellant submitted as evidence a Notice of Impoundment/Release (“the OPP Notice”) issued by OPP Officer Brandon Mouncey (“the Officer”) and received by the appellant after the impoundment. I note that the OPP Notice did not advise the owner of a right of appeal or provide contact information as to where the appellant might obtain further information about the impoundment and appeal process.

19 Section 55.1 of the Act requires that every officer who detains a motor vehicle shall, as soon as practicable,

(a) prepare a notice identifying the motor vehicle that is to be impounded, the name and address of the driver, the date and time of the impoundment, the period of time for which the motor vehicle is impounded and the place where the vehicle may be recovered;

(b) serve the driver with a copy of the notice; and

20The Officer notified the Registrar of the impoundment on November 20, 2024, eleven days past the appeal filing deadline. The respondent provided a copy of the Notice to Registrar/Notice of Suspension and Impoundment, which includes appeal information, to the representative via email and to the appellant via Purolator on the same date of November 20, 2024. The appellant submits that her ability to appeal was hindered by the Officer’s delay in notifying the Registrar.

21The representative submitted that the appellant is an elderly widow, living in a remote rural area and does not have internet or smartphone access. He submitted that the appellant contacted him on or about November 10 and, upon learning of a right to appeal from the representative, authorized the representative to file an appeal on her behalf. The appellant’s representative reports that the appellant filed an appeal on the Tribunal’s Notice of Appeal form on November 12, 2024 - three days after the filing deadline. The Tribunal responded on November 15, 2024 and informed the appellant that the Tribunal requires a copy of the Notice of Impound or Notice to Registrar (“NTR”) from the Ministry of Transportation (MTO) to complete the filing process.

22The respondent asked to question the appellant directly under oath with respect to what steps the appellant had taken to understand her right of appeal. The representative opposed the respondent’s request. The representative submitted that he had not included the appellant in her witness list and noted that the respondent had not listed the appellant in their list of witnesses for the hearing.

23The representative advised that, as the appellant’s legal representative, he would speak on her behalf throughout the hearing.

24The respondent inquired as to whether the appellant had used any other means available to her to find out about her appeal rights, such as calling Service Ontario, calling the OPP, or asking family or friends for help. The representative indicated that, to his knowledge, the appellant had not.

25The respondent submitted that it was his understanding that the appellant had not availed herself of various other means available to learn about her right of appeal, such as by calling Service Ontario, going to the library or asking for help from a friend or family and, on that basis, the extension should not be granted.

26The representative submitted that the onus should not be on an appellant to find out whether there is an avenue for appeal and, further, that it is not reasonable to expect an elderly person with limited resources and no indication that an appeal was available to seek out such information.

27I accept that, on a balance of probabilities, the appellant may not have been aware of her right of appeal until after the appeal deadline had passed. It follows therefore, that she could not have had a genuine intention to appeal within the appeal period. I find the appellant did not have a genuine intention to appeal within the appeal period; however, because of the apparent delays in notifying the appellant of her appeal rights, this finding does not weigh against granting an extension.

Length of Delay

28The appellant submitted that her appeal was only three days late and it is not an unreasonable delay.

29The respondent submitted that the three-day delay was not reasonable because the appellant could have filed immediately upon learning of her rights on, November 10, but delayed for two additional days. The appellant’s representative submitted that the two additional days were required for him to secure information and documents needed to support the appeal.

30I find that the absence of any reference to appeal rights in the Notice provided by the OPP and the delay in distribution of the Registrar’s notice occasioned by the Officer’s delay in notifying the Registrar may have contributed to the appellant’s delay in filing. Based on the representative’s submissions, I find the appellant took timely steps and actions soon after becoming aware of her right to file an appeal. I also note that the Tribunal offices were closed on Monday November 11 for Remembrance day and therefore that day would not have weighed against the appellant.

31I find the length of delay in filing was reasonable and should not prevent granting an extension to allow the appeal. Considering the rather short length of delay, I find this factor weighs in favour of an extension being granted.

Prejudice to the other party

32The respondent did not make a submission on the issue of prejudice. I therefore find that prejudice to the respondent is not a factor.

Merits of the Appeal

33Neither party directly addressed the merits of the appeal in the motion portion of the hearing; therefore, I have considered the parties’ submissions with respect to the substantive issues.

34To consider the justice of the case for an extension of the time limit based on the merits of the appeal, I must only be satisfied that there is some merit to the appeal based on the submissions before me. At this stage, I do not judge whether the appeal is likely to succeed, only whether it is at least arguable.

35The merits of the appeal hinge on the reasons for the appeal and on what grounds the appellant believes her vehicle should be ordered released.

36The appellant is appealing on the grounds that she exercised due diligence in attempting to ensure that the driver had a valid driver’s licence as well as on the ground of exceptional hardship.

37The appellant’s representative submits that the appellant asked the driver whether he had a valid driver’s licence and that he assured her that he did. The representative submits that oral confirmation is as much as should reasonably be expected of someone of the appellant’s advanced age and lack of access to the internet and digital services.

38With respect to hardship, the representative submitted that a second vehicle – a 1999 Ford Ranger registered in the appellant’s name is used by her son in the course of his employment as an occasional worker. The representative submits that the appellant’s age-related medical/physical conditions make it difficult and painful for her to get in and out of the vehicle and therefore it is not a reasonable alternative. The representative further submits that the appellant’s son could experience a loss of income opportunities if the vehicle is not available for work purposes.

39The respondent submitted that because the appellant has a second vehicle, she will not succeed in an appeal on the exceptional hardship ground.

40The appellant’s submissions regarding her circumstances following the impoundment suggest her appeal on the grounds of due diligence and exceptional hardship are worthy of a hearing. The respondent’s submissions on the possible alternatives to the impounded vehicle are relevant to the substantive issue in dispute. In short, the merits of the appeal are at least arguable and therefore I find there is some merit to the appeal, which weighs in favour of granting an extension.

41Accordingly, the justice of the case requires granting an extension because I am persuaded that, had the appellant been informed of her rights, she would have filed within the appeal period, and the 3-day delay ought not prevent the granting of an extension. Further, neither party objected on the basis of prejudice, and I find there is some merit to the appeal.

42I find that the appellant has demonstrated a factual foundation for reasonable grounds for the Tribunal to grant an extension to the legislated appeal period stipulated in section 9 of the Regulation.

Motion to require the Registrar to release the vehicle with costs.

43The appellant moved for the Tribunal to order the release of the impounded vehicle because the police failed to forward a copy of the notice of impoundment to the Registrar as soon as practicable, citing s. 55.1(5) of the Act.

44I dismiss the motion as being outside the jurisdiction of the Tribunal's legislated remedial powers. Section 50.2(3) of the Act unequivocally states, "the only grounds on which the Tribunal may order the Registrar to release the motor vehicle," followed by five specific grounds (my underlining added). Nowhere within the grounds of s. 50.2(3) did the Legislature authorize the Tribunal to order the Registrar to release the vehicle based on an alleged failure of the impounding police officer to comply with s. 55.1(5) of the Act.

THE IMPOUNDMENT APPEAL: ANALYSIS AND REASONS

Has the appellant established that she exercised due diligence to ensure that the driver’s licence was not under suspension?

45I find that the appellant has not established, on a balance of probabilities, 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 impounded was not then under suspension under s. 50.2(3)(c) of the Act.

46The onus is on the appellant to establish that she exercised due diligence to ensure the driver’s licence of the driver was not under suspension.

47The respondent submitted evidence confirming that the licence of the driver was under suspension at the time of the impoundment.

48I am alive to the need to consider individual circumstances when assessing whether an appellant exercised due diligence. The representative’s submissions with respect to the appellant’s age and access to information have some weight; however, I do not find them sufficiently persuasive on their own merits.

49The onus is on the appellant to establish 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 impounded was not then under suspension. The appellant presented no evidence as to what steps, if any, she took to ensure that the driver’s licence of the driver was not under suspension at the time she agreed to his use of the vehicle. Although the representative made a number of submissions as to what steps the appellant may have taken and steps the appellant told him were taken, there was no evidence presented at the hearing about those steps because the representative declined to present the appellant as a witness and did not present any other evidence of the steps taken, e.g., witness statements of others with knowledge. Even if I accepted the representative’s submissions, steps that “may” have been taken would be speculation at best, whereas due diligence focuses on the steps that were taken.

50I find, therefore, that the appellant has not met her onus to show, on a balance of probabilities, 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 impounded was not then under suspension. under s. 50.2(3)(c) of the Act.

Has the appellant established that the impoundment will result in exceptional hardship?

51I find that the appellant has not established exceptional hardship under the Act and the appeal must be dismissed as a result.

52The burden is on the appellant to prove that, on a balance of probabilities, the impoundment will result in exceptional hardship as defined in the Act and regulations.

53 Section 10 of O. Reg. 631/98 under the Act (the “Regulation”) sets out the criteria and factors that the Tribunal must consider in determining whether exceptional hardship will result from an impoundment.

54Section 10(1) requires the Tribunal to first consider whether an alternative to the impounded vehicle is available. Subsection 10(4) states that in order to show that there is no alternative to the impounded vehicle:

“…the 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.”

55If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal under s. 50.2(3)(d) of the Act will be dismissed.

56If the owner proves that there is no alternative to the impounded vehicle available, then s. 10(1) of the Regulation requires the Tribunal to consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the motor vehicle, or to the environment or community in whose service the motor vehicle is ordinarily used. According to s. 10(3), if the appellant has proven that there is no alternative to the impounded vehicle the Tribunal may, in limited circumstances, consider financial, economic, or employment losses. The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

57The respondent submitted evidence that the appellant is the registered owner of another vehicle, a 1999 Ford Ranger pick-up truck.

58The appellant did not present any evidence that an alternative vehicle is not available. The representative declined to present the appellant as a witness and did not present any other evidence that the vehicle was not available to the appellant.

59The representative acknowledged that, since the impoundment, the appellant has been able to obtain necessities such as groceries and medications, in part with the assistance of her son using the alternative vehicle, and that the appellant had not missed any important medical appointments because of the impoundment.

60The respondent submits that the appellant has not met her onus to show that no alternative to the impounded motor vehicle is available because the appellant has access to another vehicle and has been able to secure necessities such as groceries and medications with the assistance of her son who is the usual driver of the second vehicle. The respondent submits that the impoundment is an inconvenience rather than a hardship.

61The representative submits that it is unfair to assess hardship retrospectively and that he wished to be on the record as objecting to the fact that the respondent did not disclose the basis for their objections to release of the vehicle in advance of the hearing.

62The Act permits impacts of an impoundment such as financial hardship and loss of opportunity to be considered only under limited circumstances and only if there is first a finding that no alternative vehicle is available.

63I have considered the submissions of both parties and find that the appellant has not met her onus to show that she has no alternative vehicle available and has not established that she was unable to adequately mitigate any threat or loss.

64I find that the appellant has failed to meet the no alternative threshold required to establish this ground of appeal.

65As a result of the above finding, I am unable to consider exceptional hardship as a ground for releasing the appellant’s vehicle.

ORDER

66On the basis of the evidence presented at the hearing and the reasons set out above, the impoundment of the appellant’s vehicle is confirmed.

Jan Dymond

Vice-Chair

Released: January 13, 2025

Winifred A. King v. Registrar of Motor Vehicles, 2025 CanLII 1832

Case Summary