Nicholas Cekan v. Registrar of Motor Vehicles, 2025 CanLII 66344

Licence Appeal Tribunal File Number: 17125/MVIA

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:

Nicholas Cekan

Appellant

and

Registrar of Motor Vehicles

Respondent

MOTION DECISION AND ORDER

ADJUDICATOR:

Raymond C. Ramdayal, Member

APPEARANCES:

For the Appellant:

Igor Cekan, Representative

For the Respondent: Observers:

Leila Pereira, Agent Gurleen Thethi, Member Melissa Shea, Member

Heard by Teleconference:

May 27, 2025

REASONS FOR MOTION DECISION AND ORDER

OVERVIEW

1The appellant, Nicholas Cekan, seeks an extension of time to file an appeal of the 45-day impoundment of his 2010 Toyota Prius (the “vehicle”). The appellant’s friend, Davy Rocchetti (D.R.), was operating the vehicle on March 24, 2025, when he was stopped by police.

2Police determined that D.R.’s driver’s licence was under suspension as a result of a conviction for a Criminal Code, R.S.C., 1985, c. C-46 (“Criminal Code”) offence, specifically dangerous driving, on August 11, 2024. Subsection 55.1(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. (the “Act”) allows for the impoundment of a vehicle for 45 days where a police officer is satisfied that the driver’s licence of the person who is driving a vehicle is under suspension at the time for certain Criminal Code offences.

3The appellant, who is represented by his brother, appeals the impoundment of his vehicle and relies primarily on the grounds of exceptional hardship if given the opportunity.

4However, before the matter can be considered, the Licence Appeal Tribunal (the “Tribunal”) must first deal with the substantive issue of whether the appeal can be heard since the deadline to file the appeal was April 8, 2025. The appellant filed his appeal on May 20, 2025. This is 57 days after the initial date of impoundment and 42 days past the deadline.

5The appellant’s representative filed a Notice of Motion seeking the deadline to appeal the impoundment be extended. The Registrar of Motor Vehicles (the “respondent”) does not consent to the motion.

ISSUE

6The issue to be determined is whether the appellant has established that the justice of the case requires that the time for filing the appeal be extended.

RESULT

7On the evidence before me at the hearing, I find that the appellant has failed to establish that the justice of the case requires that the time for filing the appeal be extended and the motion is therefore dismissed. The appeal is dismissed.

LAW

8Pursuant to section 9 of Ontario Regulation 631/98 under the Act, an appeal of an impoundment must be filed within 15 days after the day the vehicle was detained together with the fee established by the Tribunal.

9The Tribunal has jurisdiction to extend the time for filing of an appeal pursuant to section 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Schedule G, which reads:

Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal under section or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,

a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and

b) give the directions that it considers proper as a result of extending the time.

10In Manuel v. Registrar of Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492, the Divisional Court ruled that, on a motion to extend the time to appeal, the overriding consideration is whether the justice of the case requires that the extension be granted. The factors to be considered in making that determination are:

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.

11The onus is on the appellant to establish that there are grounds for the granting of the extension. No one of factor has precedence over the others. My analysis will include a balancing of the conclusions reached when applying the facts of the case to the factors.

ANALYSIS

The existence of a bona fide intent to appeal

12I find the appellant did not demonstrate a bona fide intention to appeal this matter within 15 days of the impoundment.

13The appellant is currently out of the country and did not make any attempt to call in for the hearing or motion. His brother has tried to manage any affairs related to his vehicle on his behalf. The vehicle is primarily used by the appellant’s mother. Any attempt to inquire about the right to an appeal was not made until well after the impoundment period. When questioned at the motion hearing, the appellant’s representative could not provide a specific date that he became aware of the right to appeal.

14According to the appellant’s representative, the appellant is working overseas for a remote mining company. This has made it difficult for him to coordinate the appeal from where he is. Despite this, I did not receive any testimony that anyone, including the appellant’s representative or his mother, made any inquiries about their right to appeal and/or completed a Notice of Appeal form within the statutory time to file an appeal.

15When questioned, the appellant’s representative stated that there was no way he could have appealed the impoundment in the 15-day period but failed to elaborate on the specific reasons. He asserted that D.R.’s lawyer was supposed to assist the family in the impoundment appeal; however, this did not come to fruition. Nor is there any evidence supporting any urgency related to getting the vehicle returned.

16During the hearing, the appellant’s representative stated that one of the reasons for the late filing was that he was not familiar with the process and, therefore, did not take steps to file an appeal. It also appears that the appellant was not involved in any way with the appeal and did not take action from his location or provide any direction or instructions to his representative. The appellant’s representative further states that it took his mother a couple of days to know that the car was missing. This speaks to the lack of urgency with which they require the return of the vehicle.

17I find that the appellant and/or his brother and mother would also have been made aware of their right to appeal by reading the Notice of Impound and Release which would have been mailed to their residence. All three share the same mailing address. The appellant’s brother testified that he did not receive this document because they changed residence but failed to update their mailing address with MTO as they ought to have done.

18I also considered the practicality of obtaining the information regarding their right to appeal which could have been accomplished by simply speaking to others including the local police station, the tow and impound company, or the MTO. I find that there were multiple opportunities for the appellant (or his representative) to make inquiries about his vehicle but chose not to until filing a Notice of Appeal and Notice of Motion on May 20, 2025.

19I find that the appellant did not have a bona fide intention to appeal within the appeal period. He also did not make any urgent attempt to inquire about how the vehicle could be returned. The whereabouts of the vehicle was not questioned until days after the vehicle could not be located.

The length of delay

20The appellant’s notice of appeal was received by the Tribunal 57 days after his vehicle was first impounded (42 days after the 15-day period specified in s. 9 of the Regulation). I view this to be a long period of delay. By this time, the impoundment period would have already passed and the vehicle was available to be picked up from the impound yard.

21The filing of the appeal and the motion to extend the deadline to make that appeal appears to be an after thought since the impoundment period had already expired.

22Throughout the entire time, information about the right to appeal the impoundment and overall procedure was available on the Tribunal’s website, MTO, or simply contacting the non-emergency number of her local police department.

23The appellant’s appeal rights are also contained on the Notice to Registrar issued by the MTO and any other impound notice which may have been issued at roadside by the police. The appellant’s position that he did not receive the information was in part due to his failure to properly update his information with the MTO.

Prejudice to the other party

24Given the fact that this appeal is being made past the impoundment period, if I find that the extension should be granted, the Registrar would be prejudiced as it benefits from a hearing without delay. This is due to the fact that if the appellant’s appeal is successful, the Registrar is required to pay the cost of impoundment and that cost would be lower the earlier the vehicle is released. The longer the delay, the greater the cost to the Registrar. While this is an important consideration, it did not weigh as heavily in favour for the respondent because of the mere economic value of the impoundment.

Merits of the appeal

25On a motion to extend time, the appellant need not establish his case on a balance of probabilities but only that his version of events, if believed, could reasonably result in a favourable outcome. I find that the appellant has not presented grounds for appeal which disclose a reasonable chance of success should the appeal be allowed to continue to a hearing.

26During the hearing, the appellant’s representative confirmed that, if given the opportunity, he would appeal on the basis that the impoundment has resulted in exceptional hardship. However, his testimony revealed that he and his mother have been able to manage without the vehicle and obtain groceries and personal prescriptions when required. The appellant’s representative explained that he has been able to walk to nearby stores to obtain essential items for the home. While the impoundment has no doubt been inconvenient for the family, they have managed to do without the vehicle for this temporary period of time.

27The appellant presented no evidence upon which I can conclude that he might be successful in his appeal on the ground of exceptional hardship. In order to advance the ground of exceptional hardship, s. 10(4) of Regulation 631/98 requires the appellant to first demonstrate that there are no alternatives to the impounded vehicle, which include using another vehicle and making arrangements to do without any motor vehicle during the impound period. I received evidence that the appellant’s family was able to manage without the vehicle during the impoundment period. More importantly, there are also viable options, including access public transportation, ride share services and walking in order to obtain groceries and medication.

28I am not persuaded that the appellant’s reliance on the ground of exceptional hardship has a reasonable chance of success and, therefore, I find that he has no reasonable chance of success on appeal.

29Applying the criteria established in s. 7 of the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Schedule G, I am not satisfied that the justice of the case requires that an extension of time be granted in the circumstances of this case.

ORDER

30For the reasons set out above, I dismiss the appellant’s motion to extend the time for filing of the appeal. The appeal is dismissed.