Appeal under Section 50.2 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from an Impoundment of a Motor Vehicle pursuant to section 55.1 of the Act

Between:

Elaine Evans

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Jan Dymond, Vice-Chair

APPEARANCES:

For the Appellant: Elaine Evans, Self-Represented

For the Registrar: Leila Pereira, Agent

Heard by teleconference: April 7, 2026

OVERVIEW

1Elaine Evans (the "appellant") appeals the 90-day impoundment of a 2014 Nissan Rogue motor vehicle under s. 55.1 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the "Act"). The vehicle was impounded on February 17, 2026. At the time of the impoundment, Adrian Gilpin (the "driver") was driving the vehicle while his licence was under suspension resulting from a prescribed Criminal Code conviction.

2The appellant appeals on the grounds as listed in the Notice of Appeal ("NOA").

PRELIMINARY ISSUE

3The Registrar raised a preliminary issue with respect to the timing of the appellant's NOA.

4The appellant's NOA is dated February 26, 2026. She submits that, as best she can recall, she sent her appeal within the 15-day limitation period but states that she experienced various technical problems in filing the appeal. She submits that she did everything she could have in terms of sending and responding to emails from the Tribunal.

5The Registrar submits that they only became aware of the appellant's appeal upon being copied on an acknowledgement email to the appellant from the Tribunal on March 11, 2026 advising the appellant that the NOA was incomplete. They submit, therefore, that the appeal was late-filed and should have been accompanied by a Notice of Motion ("NOM") to extend the time for filing.

6The appellant submitted that she believed she had sent an NOM, copied to four people; however, she was unable to locate the email or confirm on what date it had been sent.

7The purpose of the right of appeal under the Act is to provide a level of consumer protection, as is the Tribunal's authority to grant an extension of time to file. Since there was some uncertainty with respect to the timelines involved in this appeal and in the interests of procedural fairness, I permitted the appellant to make an oral motion to request additional time and invited submissions from the parties.

ISSUES TO BE DETERMINED

8The Issues in dispute are:

i. Should the appeal deadline be extended to allow the appeal to be filed and heard by the Tribunal? And, if allowed:

ii. Whether the appellant established, on a balance of probabilities whether the vehicle was stolen at the time it was detained in order to be impounded under s. 50.2(3)(a) of the Act?

iii. Whether the appellant exercised due diligence in attempting to determine that the driver's licence of the driver was not suspended at the time under s. 50.2(3)(c) of the Act;

iv. Whether the appellant is precluded from appealing on the ground of exceptional hardship under s. 50.2(4) because there was a previous impoundment of a vehicle owned by the appellant? If not,

v. Will the impoundment result in exceptional hardship as that term is defined under s. 50.2(3)(d) of the Act and O. Reg. 631/98 (the "Regulation").

RESULTS

9The appellant's request for an extension of time to file an appeal is granted.

10The appellant has failed to establish that the vehicle was stolen at the time it was detained in order to be impounded under s. 50.2(3)(a) of the Act; or that the appellant exercised due diligence under s.50.2(3)(c) of the Act.

11The appellant is not entitled to appeal on the grounds of exceptional hardship under 50.2(3)(d) because the subject impoundment is the second impoundment of a vehicle owned by the appellant pursuant to s.50.2 (4) of the Act.

Motion to Extend the Time for Filing

12The appellant's motion that the appeal deadline should be extended to allow the appeal to be filed and heard by the Tribunal is granted.

13Section 9 of O. Reg 631/98 under the Act (the "Regulation") stipulates that an appeal under s. 50.2 of the Act, with respect to the impoundment of a motor vehicle under s. 55.1, must be filed with the Tribunal no later than 15 days after the day the vehicle was detained for impoundment.

14Under s. 7 of the Licence Appeal Tribunal Act, 1999, the Tribunal may extend a time limitation under the Act or Regulation to file an appeal if the Tribunal is satisfied there are reasonable grounds for doing so.

15The grounds for considering an extension of time to file an appeal are articulated in Manuel v. Registrar of Motor Vehicle Dealers Act, 2002, 2012 ONSC 1492. On a motion to extend the time to appeal, the Court determined that the overriding consideration is whether the justice of the case compels the Tribunal to conclude that granting an extension is appropriate. The factors to consider in deciding the justice of the case are:

i. the existence of a bona fide intention to appeal within the appeal period;

ii. the length of the delay;

iii. prejudice to the other party; and

iv. the merits of the appeal.

16The analysis requires a balancing of these factors applied to the facts. No one factor takes precedence over the others. The overriding consideration is whether the "justice of the case" requires that an extension be granted.

17The appellant has the onus to demonstrate a factual foundation for the reasonable grounds to grant the extension. Having considered the submissions of both parties, I find that the justice of the case supports granting an extension of the time limit for the reasons that follow.

Bona fide intention to appeal within the appeal period

18The date of the impoundment was February 17, 2026. The appellant's NOA is dated February 26, 2026, a date which falls within the 15 day time limit. The appellant cannot recall on what date she filed the appeal. She submits that she intended to file within the 15-day time period but may have fallen outside because she experienced various technical problems in filing the appeal. Email correspondence from the Tribunal dated March 11 and 12, 2026 do not indicate the date on which the appeal was received but confirm that the appellant was advised that her application was incomplete and that she should submit an NOM requesting an extension of time to file.

19The Registrar submits that there was no bona fide intent to file within the 15 days. The Registrar submits that they only became aware of the appellant's appeal on March 11, 2026 when the Tribunal advised her that the application was incomplete. The Registrar relies on email correspondence dated March 11 and March 12, 2026, between the Tribunal and the appellant acknowledging receipt of the NOA and advising the appellant that her application was incomplete and that she should file an NOM requesting an extension of time to file. The Registrar further submits that the application was not perfected until March 25, 2026 which should further weigh against a finding that the appellant had a bona fide intention to file within the 15-day time period.

20I accept the appellant's submissions that she had a genuine intention to file within the time period because the application is dated within that time period and her explanation that she encountered technical challenges is supported by her email exchanges with the Tribunal. As a result, I find that the appellant had a bona fide intention to file within the 15-day time period, which weighs in favour of granting an extension.

Length of the Delay

21I find that the length of the delay was reasonable under the circumstances. The 15 day period expired on March 4, 2026. The appellant submits that any delays in completing the appeal were because she has limited computer knowledge and experienced challenges navigating the Tribunal's website and accessing and submitting documents.

22The Registrar submits that the delay should be based on the day that the appeal was perfected on March 26, 2026 and assessed as a delay of 20 plus days. The Registrar submits that such a delay is not reasonable.

23I am not persuaded by the Registrar's submission that it is necessary for the appeal to have been perfected in order for it to be considered to have been filed. If I accept a late filing date of March 11, 2026, based on the email exchanges, the delay would be seven days.

24I accept the appellant's explanation that she encountered technical barriers in attempting to file the appeal and supporting documents and find that a delay of seven days was reasonable under the circumstances, which weighs in favour of granting an extension.

Prejudice to the parties

25The Registrar submits that it would be prejudiced by an extension because the delay creates potential additional impoundment costs to the Registrar should the Tribunal find in favour of the appellant.

26The appellant did not address prejudice; however, it is clear that the appellant would experience significant prejudice if she were not permitted to have her appeal heard on the merits.

27I am not persuaded by the Registrar's position. The right of appeal and the Tribunal's authority to extend a timeline exist in order to afford vehicle owners an opportunity to be heard on the merits of an appeal. I find that the prospect of the Registrar losing the case and attendant consequences are not, in and of themselves, prejudice. That the Registrar might lose and might have to pay the costs of the impoundment is part of the statutory framework and is unaffected by the appellant's delay in filing. Further, the fact that the Registrar may be at risk for the costs of the 90-day impoundment period is outweighed by the potential prejudice to the appellant of not having the merits heard.

28I find that both parties may be prejudiced by an extension; however, I find that the appellant would bear the heavier burden which weighs in favour of granting an extension.

Merits of the appeal

29To consider the justice of the case for an extension of the time limit based on the merits of the appeal, I must only be satisfied that there is some merit to the appeal based on the submissions before me. This is not an exercise in prejudging the hearing outcome.

30The merits of the appeal hinge on the reasons for the appeal and on what grounds the appellant believes her vehicle should be ordered released

31The appellant is appealing on the grounds that her vehicle was stolen at the time ii was detained in order to be impounded. She states that she was sleeping at the time the vehicle was taken and therefore could not have given permission to the driver to use her vehicle. On the ground of due diligence, she states, again, that because she was asleep, she could not have granted permission to the driver.

32With respect to the ground of exceptional hardship, the appellant states that she depends on limited pension income and has suffered financial loss because she requires her car for occasional supplementary employment.

33The Registrar submits that the appeal has no merit. They submit that, based on the NOA, the appellant cannot establish that the vehicle was stolen, or that she took steps that would show she exercised due diligence. They also submit that the ground of exceptional hardship is not available to the appellant pursuant to s. 50.2(4) of the Act because the subject impoundment is the second impoundment of a vehicle owned by the appellant

34I find the appeal has sufficient merit to satisfy the related criterion for extension of time. The appellant's submissions on the grounds that the vehicle was stolen, that she exercised due diligence are worthy of a hearing.

35In balancing the four factors, I find that the justice of the case supports granting an extension. I find that the appellant had a genuine intention to appeal within the time period; that the delay in filing was reasonable; that the prejudice to the appellant outweighs the prejudice to the Registrar, and I find there is some merit to the appeal

36As a result, the appellant's motion for the extension of time for filing is granted.

ANALYSIS

The appellant's vehicle was not stolen at the time of the impoundment

37I find that the appellant has not met her onus to establish that the vehicle was stolen at the time that it was detained in order to be impounded.

38The word "stolen" is not defined in the Act. The Divisional Court in Marshall v. Ontario (Registrar of Motor Vehicles) [2002] O.J. No.745 (Div. Ct.), ("Marshall") has provided the following definition of "stolen" in the impoundment context. In that case, the Court stated that vehicle is "stolen" within the meaning of the Act:

... when it is taken without the owner's consent and when the perpetrator intends to deprive the owner of it, whether permanently or temporarily.

39In impoundment cases, the burden is on the appellant to prove that the vehicle was stolen. The proof must be established on a balance of probabilities.

40The appellant testifies that the vehicle was stolen when she was visiting the driver. She testifies that she had been to the food bank and decided to give him food she did not want. She testifies that she drove her vehicle to his place of residence, visited for a period of time and, because she does not drive at night, decided to sleep there. She testifies that she discovered that her car was not there when she awoke in the morning. She testifies that there were other people on the premises, that she had lent her vehicle to other people previously, and thought that someone other than the driver might have needed it.

41The appellant was not able to provide a consistent narrative of events following her discovery that her vehicle was missing. She testifies that stayed at the driver's home for about four days until someone was able to drive her home. She testifies that she reported the vehicle as stolen some days later but variously testifies that it was a couple of days later or four days later. She testifies that she delayed in reporting it because people other people on the premises advised her to "wait and see." She did not submit documents supporting her testimony that she had reported it as stolen. She testifies that at some point she spoke to a police officer who informed her that her vehicle was impounded.

42Under cross examination, the appellant acknowledged that the driver had previously taken her vehicle in October of 2024 while his licence was under suspension resulting in an impoundment of the same vehicle. She testifies that on that occasion she was asleep in her own home while several other people, including the driver, were visiting her. She testifies that she successfully appealed that impoundment.

43The appellant could not recall whether she instructed the driver not to use her vehicle on the day of the most recent impoundment nor could she confirm that she specifically had instructed him not to take her vehicle on any prior occasion. She states that she 'hoped' she had but could not recall whether she had. She testifies that when the previous impoundment came up in past conversations, it was in the sense of "a lesson learned." She testifies that it did not occur to her that he would take it again and she did not take any steps to ensure that the driver could not access her car keys while she slept. She is unsure as to where her keys were located but guesses that they were in either her coat pocket or her purse.

44The Registrar submits that the appellant has not established that the vehicle was stolen. They rely on the appellant's own testimony that, despite the driver having taken her vehicle previously resulting in a prior impoundment, she did not take any steps to prevent the driver from using the vehicle, such as hiding her keys, nor did she recall having told the driver not to take the vehicle.

45I have considered the testimony and evidence of both parties. I accept that the appellant was asleep at the time that the vehicle was taken and that she may not have given the driver permission to take the vehicle; however, I do not accept that she had no reason to take steps to ensure that the driver could not access her keys or to instruct the driver that he was not to use her vehicle. The driver had previously used her vehicle under similar circumstances leading to the prior impoundment. In addition, the appellant would have been aware of the driver's licence suspension from the previous impoundment notice just sixteen months earlier. As a result, I find that the appellant ought to have instructed the driver not to use her vehicle and to ensure that the keys to the vehicle were not readily accessible. Further, I find that her testimony that she took no steps to locate the driver or her vehicle for two to four days after it was taken weighs against a finding that the vehicle was stolen.

46For the above reasons, I find that the appellant has not met her burden to establish, on a balance of probabilities, that the vehicle was stolen at the time it was detained in order to be impounded.

The appellant did not exercise due diligence

47The appellant has not established that she exercised due diligence in attempting to confirm 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 suspended.

48The Act does not provide a definition of due diligence. However, previous rulings of the Tribunal provide guidance as to what constitutes due diligence for these purposes. For example, in Horst v. Registrar of Motor Vehicles, 2022 CanLII 106454 (ONT LAT), the Tribunal found that due diligence applies to the actions the owner ought to take to meet the legal responsibility of ensuring their vehicle is operated by a licenced driver.

49In considering the extent of those actions, R. v. Sault Ste. Marie 1978 CanLII 11 (SCC), [1978] 2 S.C.R 1299 ("R. v. Sault") describes due diligence as taking all reasonable care and the actions a reasonable person would have taken in the same or similar circumstances.

50The 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.

51To prove due diligence, the appellant must therefore establish that she took reasonable care and undertook actions to determine that the intended 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.

52The appellant testifies that she was asleep at the time the vehicle was taken and therefore, not in a position to give her permission to the driver to use her vehicle. She submits that she was as responsible as she could be under those conditions. The appellant acknowledges that she has never asked to see the driver's licence of the driver and was aware that the previous impoundment of her vehicle occurred because the driver's licence of the driver was suspended. She testifies that she considered the driver to be a trustworthy person and that it never occurred to her that he would take the vehicle a second time.

53The Registrar submits that the appellant did not exercise due diligence because she did not take any steps to confirm that the driver had a valid driver's licence such as asking to see the driver's licence of the driver and/or checking with the Ministry website or asking the driver to confirm his licence status with Service Ontario. Further, she did not take any steps to prevent the driver from taking the vehicle.

54The due diligence ground assumes that the owner was aware that the driver was going to drive the vehicle and took some actions to ensure that the driver's licence of the driver was under suspension. I understand the appellant's perspective that she could not have taken any actions because she was asleep and, therefore, did what she could under the circumstances; however, I find that her testimony that she was asleep and unaware that the driver was taking her vehicle does not satisfy the test that she took actions a reasonable person might take under the circumstances. In this case, the circumstances include the appellant's knowledge that the appellant had taken her car as she slept without her permission previously. I find that due diligence would have required the appellant to take some action, for example, by ensuring that her car keys were not accessible.

55I find that the appellant has not met her burden of proving, on a balance of probabilities, that she exercised due diligence in attempting to determine if the driver's licence of the driver was not then under suspension.

Is the appellant entitled to appeal on the ground of exceptional hardship?

56The appellant alleges that the impoundment will cause exceptional hardship and argues that her vehicle should be released pursuant to s. 50.2(3)(d) of the Act. Section 50.2(4) of the Act provides that the exceptional hardship ground of appeal is not available if there has been a previous impoundment under s. 55.1 of the Act with respect to any motor vehicle then owned by the appellant. There is no provision for the Tribunal to exercise discretion in the application of s.50.2(4).

57The appellant acknowledges the fact of the previous impoundment in her testimony and, under cross examination, agrees that she had successfully appealed the previous impoundment with the result that she did not have to pay the impoundment fees. I note that while the parties submit that the Tribunal ordered the release of the vehicle, it is not clear that this was the case. The Tribunal's files show that the matter did not proceed to a hearing. It seems the appeal was withdrawn following release of the vehicle by the Registrar on information received from the OPP. Regardless of how the release came about, it does not impact the fact of the previous impoundment and nothing turns on that as far as my decision is concerned.

58The Registrar submits that s.50.2(3)(d) of the Act is not available to the appellant as a ground for appeal because there was a prior impoundment of the same vehicle.

59Based on the evidence submitted by the Registrar and the appellant's acknowledgement in her testimony that the vehicle that is currently impounded was previously impounded on October 5, 2024 under s. 55.1 of the Act for a period of 45 days, I find that I am unable to consider the exceptional hardship ground of appeal.

CONCLUSIONS

60I find that the ground of exceptional hardship is not available to the appellant pursuant to s. 50.2(4) of the Act.

61As a result of the findings above, I find the appellant has not proven that the vehicle was stolen or that she exercised due diligence and, therefore, the appeal under s. 50.2(3)(a) and 50.2(3)(c) of the Act must fail.

ORDER

62On the basis of the evidence presented at the hearing and the reasons set out above, the impoundment of the appellant's vehicle is confirmed.

Jan Dymond

Vice-Chair