Court File and Parties

CITATION: Draven v. Ontario Motor Vehicle Industry Council, 2025 ONSC 182

DIVISIONAL COURT FILE NO.: DC-24-00000382-0000

DATE: 20250326

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Erica Draven, Applicant AND: ontario motor vehicle industry council O/A ontario motor vehicle industry council – motor vehicle dealers compensation fund, Respondent

BEFORE: Shore J.

COUNSEL: Erica Draven, the self-represented Applicant Jean Iu, for the Respondent

HEARD at Toronto: September 27, 2024, in writing

Endorsement

[1] The Applicant brought a motion to extend the time to file an Application for Judicial Review.

[2] The Applicant is seeking judicial review of a decision of the Motor Vehicle Dealers Compensation Fund ("Fund"), dated June 30, 2023, to defer consideration of a claim brought by the Applicant (the "Deferral Decision") pending the outcome of the civil trial scheduled for September 2024.

[3] An application for judicial review may be commenced as of right within 30 days of the decision sought to be reviewed. If that 30-day limitation period has expired, an application for judicial review may only be commenced with leave of the court.

[4] For the reasons set out below, the motion for leave to extend the time is dismissed.

Background:

[5] On or about June 18, 2019, the Applicant submitted an initial claim ("2019 Claim") to the Motor Vehicle Dealers Compensation Fund ("MVDCF"). The Claim arose from the Applicant's purchase of a motor vehicle from 2551276 Ontario Inc. o/a Kia of Newmarket ("Dealership").

[6] The MVDCF is a fund established by the Motor Vehicle Dealers Act, 2020, to reimburse eligible customers who have suffered a proven pecuniary loss related to a vehicle purchased or leased from a registered dealer. An independent Board of Trustees reviews claims and determines compensation in accordance with the criteria set out in the MVDA and its regulations.

[7] Section 82(3) provides that:

Before a customer is paid compensation from the Fund in respect of a claim, the Board may require that the customer:

(a) obtain a judgment in respect of the claim, cause an execution to be issued under it, cause levies to be made under it and examine the judgment debtors;

(b) exhaust any other legal remedies, in addition to those described in clause (a), available to the customer in respect of the claim; or

(c) bring an action against any person against whom the customer might reasonably be considered as having a cause of action in respect of the claim. O. Reg. 333/08, s. 82 (3).

[8] On September 11, 2019, the Fund wrote to the Applicant that "the Board was unable to make a decision and agreed to exercise its discretion under in Section 82(3) and will require you to obtain a judgment in respect of your claim."

[9] The 2019 Claim remains outstanding. The Applicant did not provide the Board with any further information or evidence with respect to the 2019 Claim.

[10] On February 28, 2023, the Applicant made a second claim to the Fund ("2023 Claim")

[11] While the Applicant asserted that the 2023 Claim was based on "new evidence", the Board's review of the two claims revealed that the 2023 Claim was based on substantially the same facts as the 2019 Claim.

[12] On March 29, 2023, the Fund wrote to the Dealership to advise of the 2023 Claim. The Dealership responded that the Applicant had commenced a legal action against the Dealership and Kia Canada Inc. The trial of the action was scheduled for September 2024.

[13] The Fund advised the Applicant in its Deferral Decision that the Board is deferring its consideration of her claim until conclusion of the civil trial.

[14] Twelve months later, by way of a notice of motion dated June 28, 2024, the Applicant brought this motion, seeking an order extending the time to file an application for judicial review of the Deferral Decision.

Analysis:

[15] While the decision to grant leave to extend the time is discretionary, under s. 5(2) of the Judicial Review Procedures Act ("JRPA") leave may only be granted where two mandatory conditions are met:

(a) where there are apparent grounds for relief; and

(b) no substantial prejudice or hardship will result to any other person affected by reason of the delay.

[16] While the two condition above are mandatory, it does not preclude the Court from considering other circumstances.

[17] The length of delay and any explanation offered for it are relevant considerations.

[18] The motion record was served more than 13 months after the Deferral Decision. The only explanation for the delay provided by the Applicant was ignorance of the law. The Applicant states that she was unaware of the Judicial Review Procedures Act and her right to seek a judicial review of the Deferral dated June 30, 2023, despite having "consulted multiple lawyers" over the years and being represented by counsel in the civil action. There is no acceptable explanation offered for the lengthy delay and for this reason the motion must fail.

[19] I also find that there are no apparent grounds for relief. Under s.82(3), the Board is entitled to require that the customer obtain a judgment in respect of the claim. The applicant has not alleged that any grounds of errors made by the Board in requiring her to obtain a judgement.

[20] The decision by the Fund was to defer making a decision until the conclusion of trial, scheduled for September 2024. Having waited 13 months to bring this Application, the issue is almost moot.

[21] For the reasons set out above, the motion is dismissed.

“Shore J.”

Date: March 26, 2025