Licence Appeal Tribunal File Number: 17095/MVIA
In the matter of an appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), from an impoundment of a motor vehicle pursuant to Section 55.1 of the Act.
Between:
Brenna McIntyre
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant: Brenna McIntyre
For the Respondent: Leila Pereira, Agent
Heard: May 22, 2025
OVERVIEW
1The appellant, Brenna McIntyre, appeals the 45-day impoundment of her 2024 Ford Bronco under section 55.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
2The appellant’s vehicle was impounded on May 4, 2025, after police found it being operated by Harley Jones (H.J.) whose driver’s licence is currently under an indefinite suspension for a Criminal Code, R.S.C., 1985, c. C-46 (“Criminal Code”) offence. H.J. is the appellant’s partner who she has known since October 2024.
3Subsection 55.1(1) of 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 at the time of its detention is under suspension for certain Criminal Code offences. In this case, H.J.’s driver’s licence was suspended for driving while his ability to operate his vehicle was impaired, for which he received a conviction on September 9, 2022.
4The appellant filed her appeal with the Licence Appeal Tribunal (the “Tribunal”) on May 9, 2025. The appellant appeals under s. 50.2(3)(c) of the Act submitting that she exercised due diligence in attempting to determine that the driver’s licence of the driver at the time the vehicle was detained to be impounded was not then under suspension.
5The appellant also appeals the impoundment pursuant to s. 50.2(3)(d) of the Act on the ground that the impoundment will result in exceptional hardship.
6The onus of proving any ground of appeal rests with the appellant. To succeed in her appeal, the appellant must establish one of these grounds of appeal on a balance of probabilities.
ISSUE
7For me to make a determination in this case, I must answer the following questions:
i. Has the appellant demonstrated that she exercised due diligence?
ii. Will the appellant experience exceptional hardship as a result of the impoundment?
RESULT
8Having considered the parties’ evidence and submissions, I find that the appellant has failed to demonstrate on a balance of probabilities that she exercised due diligence in attempting to determine that the driver’s licence of H.J. was not under suspension at the time of the impoundment. However, I find that the appellant has proven on a balance of probabilities that the impoundment will result in exceptional hardship.
ANALYSIS
Has the appellant demonstrated due diligence?
9The Act does not provide a definition of due diligence. However, previous rulings of the Court and the Tribunal provide guidance as what constitutes due diligence for these purposes.
10In considering the extent of those actions, R. v. Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] 2 S.C.R 1299 (“R. v. Sault Ste. Marie”) describes due diligence as taking all reasonable care and the actions a reasonable person would have taken in the same or similar circumstances. In Horst v. Registrar of Motor Vehicles, 2022 CanLII 106454 (ON LAT), the Tribunal applied this test to the due diligence ground of appeal in an impoundment case like this one.
11The Tribunal, in 10719 v. Registrar of Motor Vehicles, 2017 CanLII 35348 (ON LAT), found that the extent of inquiry and action to determine the validity of a licence may also depend on the nature of the relationship between the owner and the driver, as well as on the circumstances under which the driver is permitted to use the vehicle.
12To prove due diligence, the appellant must establish that she took reasonable care and undertook actions to determine that the driver was properly licensed. Reasonable care does not mean perfection and is considered in the context of the circumstances under which use of the vehicle is being permitted by its owner.
13I find that the appellant has fallen well short of meeting any standard that would persuade me that she exercised due diligence in this case. During the hearing, the appellant admitted that she did not ask to see H.J.’s driver’s licence, nor did she take any additional steps to verify that he had a driver’s licence. The appellant admits to taking for granted the fact that he did have a driver’s licence and did not ask to see the physical card. The appellant admits to this oversight and regrets she was not more careful in verifying his driver’s licence.
14The respondent submitted that the appellant should have conducted a thorough search as part of her due diligence to determine if H.J. was properly licensed and permitted to drive. This includes calling Service Ontario, the Ministry of Transportation and/or visiting their website to utilize their search tool.
15I considered the fact that due diligence is demonstrated through taking reasonable care to ensure that the driver has a valid driver’s licence. In this case, I find that no reasonable actions were taken by the appellant to ensure H.J. was properly licenced to drive.
16I find that the actions taken by the appellant to verify the driver’s licence of H.J. fall short of due diligence. Therefore, she was unsuccessful in proving this ground of her appeal.
Will the appellant experience exceptional hardship as a result of the impoundment?
17I find that the appellant has shown that the impoundment will cause exceptional hardship for the reasons which follow.
18As a first step, s. 10(1) of O. Reg. 631/98 (“Regulation”) sets out the factors the Tribunal is to consider when determining whether an impoundment will result in exceptional hardship. The first step under s. 10(1) is that the appellant must demonstrate there is no alternative to the impounded motor vehicle available. Subsection 10(4) sets out that to show this, an appellant must establish that there are no reasonable alternatives to the impounded vehicle. Section 10(4) of the Regulation provides, as follows:
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.
19The appellant offered evidence to demonstrate that she has no alternative to the impounded motor vehicle.
20The appellant lives in Midland, Ontario and works approximately 3 km away as a personal trainer in a local gym. She works on an hour-to-hour basis and is highly dependent on her car to take her back and forth to work. Since her clients are not scheduled one after the other consecutively, she finds that she travels back and forth to work multiple times in the day. She does not have frequent and reliable public transit in her area. She also advised that taking a taxi or rideshare program is cost prohibitive.
21The appellant testified that her clients are mainly senior citizens who have received hip replacements, knee replacements, or are undergoing some form of therapy to assist with their rehabilitation. Her absence places their rehabilitation in jeopardy and delays their recovery.
22The appellant also uses her vehicle to transport her father who has COPD and must attend doctor’s appointments every two to three weeks. Her father is heavily dependent on her since he is unable to drive to these appointments due to the medication that he is on.
23The appellant also testified that she has serious health issues which will require a surgery in November. She has not been able to attend appointments leading up to this surgery date which may result in her surgery being pushed to 10 weeks later. The appellant submits that the thought of this worries her based on the constant pain she is in. She also testified that she is not able to attend these appointments virtually and has not been given the option to do so for the reason that her appointments usually involve in-office ultrasound.
24The appellant also provided testimony regarding her personal financial situation which is currently difficult since she just took ownership of a new home two days after the impoundment date. The added expenses have made exploring other options, such as renting a vehicle, unrealistic and unreachable.
25Since the impoundment the appellant has been walking to work when she is able. This can take 40 minutes or longer one-way. She is not able to accommodate all of her clients this way thereby possibly pushing back their rehabilitation. She is also not able to take her father to his medical appointments.
26The appellant advised that once she is able to retrieve her vehicle, she will start making up for the lost appointments but would like the Tribunal’s consideration to get her vehicle back earlier and to recoup the storage fees which she advised equate to several mortgage payments.
27The appellant does not have any other vehicles available to her, and she does not have any friends or family whom she can call to borrow a vehicle or get a ride. While there are registered vehicles under her name according to the respondent’s evidence, none are available to her, in her possession or in roadworthy condition.
28For now, the appellant has been getting assistance from her mother to pick up groceries and medication whenever she can. When asked if she can borrow her mother’s car, she stated that her mother needs her car and it was not an option made available to her.
29I find that the appellant does not have an alternative to the impounded vehicle. I am satisfied that she has considered and inquired into every reasonable option that could eliminate or adequately mitigate any threat or loss, including using another vehicle and making arrangements to do without any motor vehicle during the impound period.
30Having satisfied myself that there is no alternative to the impounded vehicle available to the appellant, I must now consider under s. 10(1)(a) and (b) of the Regulation whether the impoundment will result in a threat to the health or safety of any person who is ordinarily transported by the motor vehicle, or a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used. I may also consider, under s. 10(2) and (3), financial or economic loss, or loss of employment, but only if the owner demonstrates that:
(a) no alternative to the impounded motor vehicle is available;
(b) the loss will be immediate, significant and lasting;
(c) the impact of the loss will be upon a person ordinarily transported by the motor vehicle; and
(d) the impact of the loss,
(i) 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
(ii) will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d).
31The appellant states that she has no choice but to miss doctor’s appointments without her vehicle. Her father, who has a number of health concerns, is also at risk of missing regularly scheduled doctor’s appointments. As mentioned, he typically must see his doctor every 2-3 weeks. The appellant advised her mother has been able to take her father to one of his appointments but feels very uncomfortable driving in the city.
32The appellant also testified about her reliance on her vehicle for work purposes and her inability to see all of her clients who are recovering from hip and knee surgery. Overall, I find that the impoundment of the appellant’s vehicle results in a threat to the health and safety of the appellant and others who rely on the vehicle, and are ordinarily transported by the vehicle.
33The appellant explained that she does not have any friends who are able to assist her with transportation. The loss of her vehicle has also complicated her financial situation since she recently took occupancy of her new home.
34I have considered whether the impoundment will result in a threat to the health and safety of anyone ordinarily transported in the appellant’s vehicle, or a threat to the public health and safety or to the environment or property of a community in whose service the vehicle is ordinarily used. I find that there is a threat to the health and safety of the appellant and her father, who are not able to access healthcare needs in an easy and readily accessible manner as they would with the appellant’s vehicle.
35I accept the appellant’s testimony that her financial situation is unstable and the impoundment will further exacerbate this situation. Based on the evidence, and in accordance with s.10 of the Regulation, I find that the appellant has no reasonable alternative to the impounded vehicle and the loss of the vehicle will result in a threat to the health or safety of persons ordinarily transported by the motor vehicle, namely herself, her father and the clients she serves as a personal trainer. In addition to this, I find that the appellant has explored all possible alternatives and they are all unavailable or not financially feasible.
36I am satisfied that the appellant has demonstrated that the impoundment will cause exceptional hardship under the Act.
ORDER
37For the reasons set out above, pursuant to the Tribunal’s authority under s. 50.2(5) of the Act, I order the respondent to release the vehicle.
LICENCE APPEAL TRIBUNAL
__________________________
Raymond C. Ramdayal, Member
Released: June 12, 2025