Alexandria Farthing v. Registrar of Motor Vehicles, 2025 CanLII 39282

Licence Appeal Tribunal File Number: 16888/MVIA

In the matter of an appeal from an impoundment of a motor vehicle under section 55.1 of the Highway Traffic Act.

Between:

Alexandria Farthing

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Rupinder Hans

APPEARANCES:

For the Appellant: Alexandria Farthing, Self-represented

For the Respondent: Leila Pereira, Representative

HEARD: April 10, 2025

OVERVIEW

1The appellant, Alexandria Farthing, appeals under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”) from the 45-day impoundment of a 2015 Chevrolet motor vehicle (the “vehicle”). The vehicle was impounded on March 12, 2025. At the time the vehicle was detained in order to be impounded, the appellant was driving the vehicle while her driver’s licence was suspended as a result of a Criminal Code conviction.

2The appellant appeals the 45-day impoundment on three grounds that her driver’s licence was not suspended at the time the vehicle was detained in order to be impounded, that she exercised due diligence, and that the impoundment will cause exceptional hardship.

ISSUES

3The issues in dispute are:

i. Whether the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension in accordance with section 50.2(3)(b) of the Act.

ii. Whether the appellant exercised due diligence in accordance with section 50.2(3)(c) of the Act.

iii. Whether the impoundment will result in exceptional hardship under section 50.2(3)(d) of the Act.

RESULT

4I find the appellant has not established that her driver’s licence was not under suspension at the time the vehicle was detained in order to be impounded in accordance with section 50.2(3)(d) of the Act. I further find that she did not exercise due diligence in accordance with section 50.2(3)(c) of the Act. Lastly, I find that the impoundment will not result in exceptional hardship under section 50.2(3)(d) of the Act. The impoundment of the vehicle is confirmed.

PRELIMINARY ISSUE

5On April 9, 2025 at 8:22 p.m., the day prior to the scheduled hearing on April 10, 2025, the appellant forwarded to the Tribunal and the respondent two screenshots of information on Peterborough Transit buses. The respondent objected to the late filing of these two documents.

6I did not permit the documents to admitted into evidence, as they were disclosed the night prior to the hearing at 8:22 p.m., giving the respondent little, if any, time to review them and consider, for example, their authenticity. However, the appellant was permitted to testify on the information contained in the documents.

ANALYSIS

7The respondent presented uncontradicted evidence which establishes that:

i. the appellant is the registered owner of the vehicle; and

ii. on March 12, 2025, the police discovered the vehicle being driven by the appellant.

Whether the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension, and whether she exercised due diligence in accordance with the Act.

8I have combined the analysis of these two grounds as the appellant’s testimony and evidence on both is essentially the same, and the parties agree the grounds overlap.

9I note that the burden is on the appellant to prove on a balance of probabilities that her driver’s licence was not under suspension at the time the vehicle was detained in order to be impounded. I note that she similarly has the burden to prove on a balance of probabilities that she exercised due diligence in attempting to determine that her driver’s licence was not under suspension at the time the vehicle was detained in order to be impounded. If she met either burden, then I would order the vehicle to be released from impoundment.

10I find the appellant has not met either burden. I find that the appellant’s driver’s licence was suspended at the time the vehicle was detained in order to be impounded, and that she did not exercise due diligence in accordance with the Act.

11The respondent presented evidence that, on March 5, 2025, the appellant’s driver’s licence was suspended as a result of a Criminal Code conviction, specifically for failing or refusing to provide a breath or blood sample. The offence date is September 26, 2024.

12The appellant testified that, on March 5, 2025, she attended court along with her legal representative and pled guilty to failing or refusing to provide a breath or blood sample. She testified that she was provided with paperwork while in court which included a probation order that she signed. Under cross-examination, she acknowledged the probation order stated that she is prohibited from operating a motor vehicle for a period of 12 months. She acknowledged reading the probation order. However, she testified that she did not think the probation order came into effect immediately, and she thought she could continue to drive the vehicle for a period of time.

13The appellant gave evidence about incidents that led her to believe her licence was not suspended at the time the vehicle was detained in order to be impounded. Prior to her guilty plea, she had paid a reinstatement fee of $831, and understood she had a valid driver’s licence. She testified that, a day or two after her court appearance and guilty plea, she attended a Service Ontario location in order to transfer the ownership of the vehicle to her mother, and was told that her driver’s licence was in fine standing. However, according to the respondent, it would take a few days for the Ministry of Transportation (“MTO”) to update its systems. The appellant testified that she did not receive the Notice of Suspension of Driver’s Licence until March 14, 2025, which is two days after the impoundment of the vehicle. She testified that she received a letter from the MTO, dated March 10, 2025, that was similarly received after the impoundment that included information on the reduced suspension program.

14The appellant submits she was doing her best to navigate conflicting information that she was receiving and she exercised due diligence in doing so. However, she acknowledged that she did not check the validity of her driver’s licence on the MTO website prior to driving the vehicle on March 12, 2025, and in fact anytime after her court appearance and before the impoundment. She acknowledged that in hindsight she misunderstood the probation order and court paperwork provided to her.

15I find that the evidence before the Tribunal clearly establishes that the appellant’s driver’s licence was suspended on March 5, 2025, on the day she pled guilty to a Criminal Code offence. While she may not have understood that the suspension came into effect immediately, this does not alter the fact that her licence was under suspension at the time the vehicle was detained in order to be impounded.

16I further find that the appellant did not exercise due diligence as she did not take reasonable steps to determine that her driver’s licence was not suspended due to a Criminal Code conviction. I note that she pled guilty to a Criminal Code offence, and was provided with a probation order which she acknowledged stated that she is prohibited from operating a motor vehicle for 12 months. She testified that she signed the probation order. She testified that she did not understand that when she left the courthouse on March 5, 2025 her license was suspended. I note the appellant had a legal representative advising her on her criminal charge, and I find it unreasonable that she would not have known that her licence was suspended immediately after her guilty plea. Due diligence would require her to review and ensure she understood the effect of the probation order on her driver’s licence. I note that even if she did not understand that her licence was suspended, I do not believe any actions she took thereafter constitute due diligence under the Act, including attending a Service Ontario location a day or two after her court appearance. I find that her reliance on receiving the Notice of Suspension of Driver’s Licence two days after the impoundment of the vehicle is misplaced given her guilty plea on March 5, 2025. She was fully aware of her Criminal Code conviction, and I cannot find that she exercised due diligence or took reasonable steps under the circumstances.

17Given the evidence before the Tribunal, I find the appellant has not meet her burden under either ground.

Whether the impoundment will result in exceptional hardship

18The burden is on the appellant to prove on a balance of probabilities that the impoundment will result in exceptional hardship as it is defined in the Act and regulations. I find the appellant has not established that there is no alternative to the impounded vehicle and she has not met her burden.

19Section 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.

20Subsection 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:

[T]he 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.

21If 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 fail.

22If the owner proves that there is no alternative to the impounded vehicle available, then subsection 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 property of a community in whose service the motor vehicle is ordinarily used. According to subsection 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.

23The Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

24The appellant testified she is the sole provider for her two minor children ages 6 and 15 years old, that she works part-time, and the vehicle is the only one available to her family. She testified that one of her children has special needs and is in a specialized school program and he needs transportation to medical/service providers. She testified that her mother, who does not currently have a vehicle, lives about five minutes away from her home and has undertaken to drive the vehicle and transport the children to school and to programming/appointments. She testified that her mother would keep the vehicle during the period that her licence is suspended and would provide transportation to her children.

25The appellant testified that there is no Uber or ride sharing available in her area.

26The appellant testified that public transportation is available in her area but the buses run every 30 to 40 minutes, and it is difficult for her to drop both children off to different schools and programs. She submits that public transportation is not feasible or conducive to her family’s transportation needs. She testified that, since the impoundment, the children have missed two to three days from school. She acknowledged that she has been using taxis to take the children to school, and has used them two to three times per week since the impoundment. She testified that taxis are costly at $45 to $55 per ride, and not a reasonable alternative for her given her limited financial resources and reliance on government assistance.

27The appellant testified that her family has also used bikes as transportation to her children’s schools and have walked, but both take a long time.

28The appellant testified that, on the day of the hearing, she used a taxi to take the children to school and will be using a taxi to pick them up after school or she may walk to their respective schools to pick them up.

29The appellant testified that, since the impoundment, she has walked to get groceries and prescriptions but it is difficult with the children.

30There is no indication that the appellant or her children have missed any doctor’s appointments since the impoundment.

31I acknowledge the appellant’s testimony that she has been experiencing inconvenience and financial difficulties since the impoundment of the vehicle. However, I note that these are largely the result of the suspension of the appellant’s driving privileges and not the result of the impoundment.

32In any case, I find the appellant has not established that there is no alternative to the impounded vehicle. I note that, since the impoundment, she has regularly used taxis to take the children to school, and has even walked. She has walked to obtain groceries and prescriptions and there is no indication that the family’s essential needs are not being met. The evidence before me establishes that the appellant has been meeting her family’s transportation needs by using taxis, walking and by biking.

33In my view, public transportation is also available though not convenient. I note the Tribunal may not consider inconvenience when determining whether the appellant has proven exceptional hardship.

34In addition, I note the appellant testified that since the impoundment, she has not been able to work in her part-time hair cutting business, and has lost some income as a result. I accept that the appellant may have lost income as a result of the impoundment, however, I am unable under the Regulation to consider these losses because they have been incurred by the appellant, who was the person driving while suspended. It is not within the mandate of the Tribunal to consider losses that are due to a licence suspension, only those which result from an impoundment.

35I find the appellant has not proven that there are no alternatives to the impounded vehicle available and her appeal under s. 50.2(3)(d) of the Act must fail as a result. I therefore need not make determinations with respect to the remaining components of the exceptional hardship test.

36Under the circumstances, I find the appellant has not proven exceptional hardship and the appeal under s. 50.2(3)(d) of the Act must fail.

ORDER

37Pursuant to subsection 50.2(5) of the Act, the impoundment of the appellant’s vehicle is confirmed.