Licence Appeal Tribunal File Number: 17039/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 under section 55.1 of the Act for driving while in contravention of a condition under s. 55.1(1)2 of the Act.

Between:

Stephanie Cote

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATORS:

Bernard Trottier

Bruce Stanton

APPEARANCES:

For the Appellant:

Stephanie Cote, Self-represented

For the Respondent:

Leila Pereira, Agent

Heard by: Videoconference

June 24, 2025

OVERVIEW

1Stephanie Cote (the “appellant”) appeals the impoundment of her motor vehicle under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The appellant’s motor vehicle was impounded on April 22, 2025. At the time of the impoundment, Lawrence Shawbonquit (the “driver”) was driving the vehicle with a suspended licence.

2The appellant appeals on the following grounds:

a) that the motor vehicle that was impounded was stolen at the time it was detained in order to be impounded;

b) that 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;

c) 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 detained in order to be impounded was not then under suspension; and

d) that the impoundment will cause exceptional harship.

PRELIMINARY ISSUE

3The appellant filed her Notice of Appeal on April 29, 2025, 7 days after the impoundment. However, the Notice to Registrar (“NTR”) was not filed until May 29, 2025, 37 days after the impoundment. The Registrar takes the position that the appeal was not commenced until the NTR was filed and that the appellant therefore did not “file” her appeal within the 15-day period after the impoundment as required under s. 9 of O. Reg. 631/98 (the “Regulation”). Therefore, the respondent submitted a motion, orally at the hearing, that the appeal should be dismissed without a hearing.

4The appellant directed us to an email dated April 29, 2025, from Lisa Wabegijig, the appellant’s mother, with a 4-page Notice of Appeal signed by the appellant and with the online payment receipt number noted.

5Further, the appellant directed us to an email from the Tribunal dated June 9, 2025, where the Tribunal followed up on a letter sent to her on May 7, 2025, informing her that the appeal was incomplete since a copy of the Notice of Impound was not included with the appeal. In its correspondence, the Tribunal informed the appellant that she must provide the Notice of Impound (provided by the police to the applicant at the time of the impoundment) for the Tribunal to process the appeal.

6Lastly, the appellant directed us to a letter from the Greater Sudbury Police Service, dated June 16, 2025, responding to the appellant’s request under the Municipal Freedom of Information and Protection of Privacy Act, that was received by the police on May 27, 2025. The letter from the police provided the Impound Number for the appellant’s vehicle.

7We acknowledge that the respondent did not receive an NTR until May 29, 2025, well after the 15-day period for filing an appeal. At the same time, we acknowledge that the appellant did commence her appeal, with the required fee, seven days after the impoundment, which is well within the time limit required by the Regulation.

8For the following reasons, we find that the appeal was filed on April 29, 2025, within the time required by the Regulation, and we deny the respondent’s request that the appeal be dismissed without a hearing:

a) The appeal was commenced (albeit incomplete) within the 15-day period required by the Regulation;

b) The appellant made good faith efforts to provide the required information to complete her appeal once the Tribunal advised her that the original appeal was incomplete; and

c) We find there is no prejudice to the respondent in allowing the hearing to proceed on its merits, because it was aware of the appellant’s appeal as early as May 29, 2025, more than 3 weeks prior to the hearing.

ISSUES

9The issues in dispute are:

i. pursuant to s. 50.2(3)(a) of the Act, whether the motor vehicle that was impounded was stolen at the time it was detained in order to be impounded;

ii. pursuant to s. 50.2(3)(b) of the Act, 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;

iii. pursuant to s. 50.2(3)(c) of the Act, 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 detained in order to be impounded was not then under suspension; and

iv. pursuant to s. 50.2(3)(d) of the Act, whether that the impoundment will result in exceptional hardship.

RESULT

10For the reasons set out below the impoundment of the vehicle is confirmed.

PROCEDURAL ISSUES

14At the outset of the hearing, we reviewed the grounds for the appeal with the parties to confirm that they were understood and agreed upon. The appeal, as filed with the Tribunal, identified the grounds as listed in issues (ii), (iii) and (iv) above. Upon further consideration, the appellant requested to add the ground that the vehicle was stolen, as listed in issue (i) above.

15The respondent objected to adding this ground for the appeal, on the basis that the hearing adjudicators were leading the appellant to add this ground, and not being impartial. The respondent argued further that adding this ground would breach procedural fairness in that the respondent did not have notice that this ground would be added.

16We agreed to add issue (i) above for the following reasons:

a) Tribunal matters dealing with appeals to impoundment of motor vehicles, under section 50.2 of the Act, do not have pre-hearing conferences to, among various procedural considerations, clarify the issues in dispute.

b) Under Rule 3.1, to ensure an open and accessible process to a self-represented party, hearing adjudicators may provide further information and explanations regarding the relevant statute(s) and Tribunal procedures. Upon receiving further information and explanations, the appellant chose to add issue (i).

c) We do not see that there will be prejudice to the respondent by adding issue (i) because no new evidence is being submitted that would require an adjournment to prepare for a response, and the respondent would have an opportunity to cross-examine the appellant on her testimony on this issue. We note that the respondent did not request an adjournment to prepare a response for issue (i).

ANALYSIS

17For the Tribunal to order the Registrar to release a vehicle that has been impounded pursuant to s. 55.1 the Act, an appellant must prove, on a balance of probabilities, that they satisfy one or more of the grounds for appeal set out in s. 50.2 of the Act. In all cases, the burden of proof lies with the appellant.

The vehicle was not stolen.

18We are not satisfied that the motor vehicle that was impounded was stolen at the time it was detained in order to be impounded.

19In Marshall v. Ontario (Registrar of Motor Vehicles) [2002] O.J. No. 745 (Div. Ct.) (“Marshall”) the Divisional Court held that a vehicle is “stolen” in this context “when it is taken without the owner’s consent and, secondly, when the perpetrator intends to deprive the owner of it, whether permanently or temporarily”.

20The appellant testified that she did not want the driver, a friend who she has known for many years, to drive her vehicle. She testified that, on the day of the impoundment, she asked the driver, who was sitting in the driver’s seat, to exit the vehicle. The appellant testified that she did not give the driver permission to drive her vehicle and therefore the vehicle was “stolen”.

21The appellant testified that, on the day of the impoundment, she had left the keys in the parked vehicle while she, the driver, and two cousins, were in a restaurant. The appellant testified that, after an argument, the driver left the restaurant and entered the vehicle, taking the driver’s seat. The appellant testified further that after a dispute over whether the driver could drive the vehicle, the appellant and her two cousins entered the vehicle, took seats as passengers, and the driver proceeded to drive the vehicle.

22The appellant testified that, after the impoundment, she asked the police to charge the driver with theft. She testified that the police officer told her they would not charge the driver with theft at that time, and that the vehicle would be impounded.

23The respondent submits that, by leaving the keys in the vehicle and by entering the vehicle as a passenger, the appellant had provided “implied consent” and therefore the vehicle was not “stolen”.

24We agree with the respondent that the vehicle was not stolen as described in Marshall. We accept the appellant’s testimony that, even though she left the keys in the vehicle, she did not provide consent to the driver to drive her vehicle. However, by entering the vehicle with the driver as a passenger, we find that she was not deprived of her vehicle either permanently or temporarily. Therefore, she has not met the second component of test in Marshall that her vehicle was “stolen” for the purposes of s. 50.2(3)(a).

25We do not find the appellant’s testimony that she requested the police to charge the driver with theft persuasive. We have only the appellant’s hearsay evidence of the police officer’s response to her request that the driver be charged with theft. It seems likely that the police were aware the appellant was in the vehicle with the driver when it was detained for impoundment, but we have no evidence of the police officer’s reasons for declining the appellant’s request.

26For the reasons above, we find that the appellant has not established that the motor vehicle that was impounded was stolen at the time it was detained in order to be impounded.

The driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was then under suspension

27We are not satisfied that 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.

28The appellant testified that she believed the driver had a licence because she had seen him driving vehicles in the community and she had no knowledge of his licence being suspended. Indeed, she had allowed him to drive her vehicle, while she accompanied him, on several occasions.

29The respondent directed us to the NTR, indicating that the driver was driving the appellant’s vehicle on April 22, 2025, the date of the impoundment, and that the vehicle was impounded for a Criminal Code-related suspension, under suspension #0013903.

30Secondly, the respondent referred us to a Ministry of Transportation of Ontario (“MTO”) Extended Driver Record Search for Criminal Code Convictions, dated June 19, 2025, indicating that the status of the licence of the driver was “suspended indefinitely for ability impaired” as of January 22, 2020, under suspension #0013903.

31Thirdly, the respondent submitted into evidence an MTO Driver Status by Date report, dated June 19, 2025, indicating that on April 22, 2025, the licence of the driver was “suspended.”

32Based on the persuasiveness of evidence of the respondent and the absence of any evidence from the appellant to refute it, we find that the appellant has not met her burden in demonstrating that that the licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension.

The appellant has not established 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 detained in order to be impounded was not then under suspension

33We are not satisfied 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 detained in order to be impounded was not then under suspension.

34In considering what actions might amount to due diligence, the Supreme Court of Canada, in 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.

35Although due diligence does not require perfection, it does require that the appellant must establish that they took reasonable actions to determine that the driver was properly licensed rather than simply assuming that to be true. In general, the driver’s own representation that they are properly licenced is not sufficient to establish that due diligence was taken.

36As noted above, the appellant testified that she did not know that the licence of the driver was suspended. She testified that she had seen the driver driving his mother’s vehicle recently in the community and had previously allowed the driver to drive her vehicle while she was a passenger. The appellant testified that she did not ask to see the licence of the driver on the date of the impoundment. She testified that she trusted the driver and saw no reason to ask to see his licence.

37The respondent submits that the appellant did not undertake any due diligence in verifying that the driver had a valid driver’s licence, and that the appellant has not met her burden of proof on issue (iii).

38We find that the appellant has not established 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 detained in order to be impounded was not then under suspension because she did not take any actions or steps to ensure that the driver had a valid licence. We find that her assumption that the driver had a licence, based merely on observation, falls below the standard in R. v. Sault Ste. Marie of taking all reasonable care to ascertain the driver was properly licensed.

The impoundment will not cause exceptional hardship.

39We are not satisfied that the impoundment will cause exceptional hardship as that term is defined under the Regulation.

40The Regulation sets out the criteria that the Tribunal is required to consider, when determining whether the appellant has established that the impoundment will cause exceptional hardship under the Act. According to the Regulation, the Tribunal must first determine whether no alternative to the impounded vehicle is available. Subsection 10(4) states that 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.

41If the owner fails to prove that no alternative to the impounded vehicle is available, then the appeal on the basis of exceptional hardship will fail and the Tribunal need not consider the remaining factors set out in the Regulation related to exceptional hardship.

42If the owner establishes that there is no alternative available, the Tribunal must then consider whether the impoundment will result in a threat to the health or safety of any person ordinarily transported by the vehicle, a threat to public health and safety, or a threat to the environment or property of a community in whose service the vehicle is ordinarily used.

43The Tribunal is generally precluded by s. 10(2) from considering financial or economic loss, loss of employment or an employment opportunity, or loss of education or training or an opportunity for education or training. However, s. 10(3) provides that the Tribunal can consider these things if the owner demonstrates the following:

(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).

44The Tribunal can never consider whether the impoundment will result in inconvenience to a person.

The appellant has alternatives to the impounded vehicle.

45The appellant testified that she lives on a First Nations reserve in a rural area near Sudbury. She lives with her parents as well as with her niece and nephew, aged 8 and 3 years.

46The appellant testified that a passenger vehicle is the only viable means of transportation for work and other daily activities. She needs her vehicle to seek employment opportunities at remote campsites and at other locations, as well as through an employment agency. She needs her vehicle to get groceries, to attend appointments, and to drive her niece and nephew to appointments. Her 8-year-old niece takes the bus to school while her 3-year-old nephew is at home. The appellant testified that there is no bus service and taxis are cost-prohibitive where she lives.

47The appellant testified that each of her parents have their own vehicle. Her mother works during the week, and generally works from home (remotely), but also needs her vehicle to work away from home when needed. Her father is not working and he owns a pickup truck. The appellant testified that she has borrowed her mother’s vehicle to get household needs and attend appointments while her vehicle has been impounded. She testified that she is not allowed to drive her father’s vehicle. Besides her father insisting that only he drive the pickup truck, she testified that it only seats three people, including the driver, and it cannot accommodate child seats.

48The respondent submits that there are three vehicles registered at the appellant’s home including the impounded vehicle. The respondent submits that, based on the appellant’s testimony, the appellant could use, or at least have access to, one of the two alternative vehicles during the impoundment period.

49We find that the appellant has not established that there is no alternative to the impounded vehicle because her mother and father live at the same address, each have a vehicle of their own, and the appellant has testified that her mother’s car is available as an alternative to the impounded vehicle.

Financial, Economic, Employment or Education Losses

50Given that the appellant has not met her burden to prove, on a balance of probabilities, that no alternative to the impounded vehicle is available, then we need not consider the remaining factors set out in the Regulation related to exceptional hardship.

51For the reasons set out above, we find that the appellant has not established that the impoundment will cause exceptional hardship as that term is defined in the Regulation.

Conclusions

52We find that:

i. the appellant has not established that the motor vehicle that was impounded was stolen at the time it was detained in order to be impounded;

ii. the appellant has not established that 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;

iii. the appellant has not established 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 detained in order to be impounded was not then under suspension; and

iv. the appellant has not established that the impoundment will result in exceptional hardship as defined in the Regulation.

ORDER

53The Tribunal orders that the impoundment of the vehicle is confirmed.