Licence Appeal Tribunal File Number: 17146/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:

Nicole Myles

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATORS:

Bernard Trottier Colin Osterberg

APPEARANCES:

For the Appellant:

Nicole Myles, Self-represented

For the Respondent:

Leila Pereira, Agent

Heard by teleconference: June 25, 2025

OVERVIEW

1Nicole Myles, (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 Thursday, May 15, 2025. At the time of the impoundment, Joshua Miller (the “driver”) was driving the vehicle with a suspended licence. A Notice of Impoundment was issued for a period of 45 days.

2The appellant appeals on the following grounds:

a) 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

b) that the impoundment will cause exceptional hardship.

ISSUES

3The issues in dispute are:

i. 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;

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

RESULT

4For the reasons set out below, the impoundment of the vehicle is confirmed.

ANALYSIS

5For 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 appellant has not established that they 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

6We 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.

7In 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.

8Although 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 licenced 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.

9The appellant lives in Newmarket with her adult daughter. The appellant testified that she is going through a legal separation from her husband, who does not live at her house. The appellant testified further that the driver was an acquaintance who helped the appellant with chores around her house, and that, on the day of the impoundment, he asked to borrow the vehicle to go to a hardware store.

10At the time of the impoundment, the appellant submits that she asked to see the driver’s licence of the driver, and that the driver’s licence looked valid to her. The appellant testified that she had heard, through friends, that the driver had previously lost his driver’s licence and that his licence had been returned. The appellant testified that she thought, if the driver’s licence had been suspended, the driver would not have it in his possession. She testified that she consented to the driver’s use of her vehicle after seeing the driver’s licence.

11Also, the appellant stated that she did not look at the expiry date on the licence. The respondent argues that had she done so, it is likely that she would have seen that the licence had been expired for a number of years.

12The appellant testified that she did not ask the driver to go to a Service Ontario location to check the status of his licence, nor did she consult the Ministry of Transportation of Ontario (“MTO”) website to check the status of his licence. The appellant testified that she did not know that these services existed.

13The Registrar of Motor Vehicles (the “respondent”) submitted evidence, via an MTO Extended Driver Record Search for Criminal Code Convictions document, that the driver’s licence of the driver expired on November 4, 2016, and that it was suspended subsequently on October 23, 2019 for a dangerous driving conviction under the Criminal Code of Canada. The period of the suspension was until June 6, 2025.

14In addition, the respondent submitted evidence, via an MTO Driver Status by Date document, that the driver was driving the appellant’s vehicle on the day of the impoundment.

15The respondent submitted that persons whose driver’s licence is suspended are not required to relinquish their licence to the MTO; rather, suspended drivers may maintain possession of their licence for personal identification purposes. The respondent submits that due diligence would have required that the appellant check the expiration date of the licence, which would have shown that it had expired on November 4, 2016.

16We agree with the respondent that checking the expiration date on the driver’s licence would have been a reasonable action to take, as a minimum level of due diligence, as described in R. v. Sault Ste. Marie. As a result, we find that the appellant has not met the burden of proof that she exercised sufficient due diligence.

17For the reasons above, we 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.

The impoundment will not cause exceptional hardship

18We are not satisfied that the impoundment will cause exceptional hardship as that term is defined under O. Reg. 631/98 under the Act (the “Regulation”).

19The 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 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.

20If 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.

21If 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.

22The 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).

23The Tribunal can never consider whether the impoundment will result in inconvenience to a person.

Alternative to the impounded vehicle

24We are not satisfied that there is no alternative to the impounded vehicle.

25The appellant testified that she works in a sales role where she presents products to potential customers in the field. These customers can be anywhere in Ontario. She testified that she uses her vehicle to commute to her company’s main office in Mississauga as well as to customer locations. The appellant testified that she needs to bring products with her when she goes to customer locations, and therefore she requires a vehicle to do so. The appellant testified that, since the impoundment of her vehicle, she has worked remotely from home primarily, but that her work suffers.

26The appellant testified that, in addition to work, she requires her vehicle for errands such as getting groceries and for personal appointments. She testified that the nearest grocery store and pharmacy would be a 20-minute walk away, and that such a walk would be difficult because of heavier items. The appellant testified that she received rides from friends and neighbours for these types of errands occasionally.

27The appellant testified that her adult daughter works full-time in an automotive assembly plant in Newmarket, and that her daughter does not own a vehicle. The appellant testified that her daughter’s shifts normally start at 6:00 a.m. and that she requires rides to and from work. The appellant testified that public transit is not a viable option for her daughter to commute to work because of the times of day and the length of time it would take. The appellant testified that it would take one hour for her daughter to walk to and from work. Alternatively, she testified, a ride-share taxi would cost $8.00 to $11.00 each way.

28The applicant testified that she is estranged from her husband and that she is not able to borrow his vehicle. She testified, further, that her mother lives in British Columbia and that her father lives in Brampton. She testified that her father is 85 years old but still works full-time and needs his vehicle. The appellant testified that she has no siblings and that she does not have access to a vehicle from any members of her immediate family.

29The appellant submits that she could not afford to rent a vehicle during the impoundment period, and that she cannot afford to take taxis for work commitments. The appellant testified that she has taken taxis occasionally for groceries and other personal appointments. The appellant testified that her compensation is comprised of a salary with a year-end bonus and that she does not collect sales commissions. Accordingly, the appellant testified that her income during the impoundment period has not suffered.

30The respondent submits that the appellant and her daughter have access to public transit, taxis, rental cars and rides from friends, neighbours and her father, when required during the impoundment period. The respondent submits that, while inconvenient and not ideal for the appellant, these alternatives are available. For this reason, the respondent submits that the appellant has not met her onus of establishing that she does not have alternatives to the impounded vehicle, and, as a result, that she suffered from exceptional hardship as defined under the Regulation.

31We find that we agree with the respondent. We find that the appellant has not established that there is no alternative to the impounded vehicle because she continues to work remotely during the impoundment period, and that alternative forms of transportation for work purposes, such as taxis or short-term rental cars, are available to her when required. We find the appellant’s daughter has alternatives to the impounded vehicle for work and other purposes as well. We find that the impoundment may result in inconvenience to the appellant but does not meet the test of excessive hardship under the Regulation.

Financial, Economic, Employment or Education Losses

32We have found that the appellant has alternatives to the impounded vehicle during the impoundment period.

33Since the appellant has not met her burden to prove, on a balance of probabilities, that no alternative to the impounded vehicle is available, we need not consider the remaining factors set out in the Regulation related to exceptional hardship.

34For 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

35We find that:

i. 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;

ii. the appellant has not established that the impoundment will result in exceptional hardship.

ORDER

36The Tribunal Orders that the impoundment of the vehicle is confirmed.