Licence Appeal Tribunal File Number: 18406/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:

Elzbieta Gembal

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

VICE-CHAIR: Jeffery Campbell

APPEARANCES:

For the Appellant: Elzbieta Gemba, Self-represented

For the Respondent: Leila Pereira, Representative

Heard by teleconference: April 22, 2026

OVERVIEW

1Elzbieta Gembal (the “appellant”) appeals the impoundment of her 2015 Ford Flex (the “vehicle”) under section 50.2 of the Highway Traffic Act, R.S.O. 1990, C. H.8 (the “Act”). The vehicle was impounded on Saturday, February 22, 2026. At the time of the impoundment, the vehicle was being driven by a driver while his or her driver’s licence was under suspension due to a criminal conviction.

2The appellant appeals on the grounds that she exercised due diligence and that the impoundment will cause exceptional hardship.

ISSUES

3The issues to be determined are:

i. 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/or subject to an ignition interlock conditions pursuant to s. 50.2(3)(c) of the Act.

ii. Whether the impoundment will result in exceptional hardship, under s. 50.2(3)(d) of the Act.

ANALYSIS

4For 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.

i. The appellant did not exercise due diligence pursuant to s 50.2(3)(c) of the Act.

5I am 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.

6In 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.

7Although due diligence does not require perfection, it does require that an 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 licensed is not sufficient to establish that due diligence was taken.

8The Registrar presented a Notice to Registrar (“NTR”) completed by Hamilton Police Investigating Officer Badge No. 1835, which lists the driver of the vehicle at the time of the impoundment as Adrian Gembal. The date and time of the impoundment was listed as February 22, 2026 at 12:19 p.m. The Incident Location is listed as 1470 Highway 6, Hamilton, Ontario.

9Conversely, the appellant submits that the driver at the time of the impoundment was not Adrian Gembal (the appellant’s son), but rather Brittany Woodcock (Adrian Gembal’s partner). The appellant presented a Summons to Defendant to Brittany Woodcock (“Summons”), completed by Officer No. 1835, advising Ms. Woodcock that she was charged with the offence of Driving While Under Suspension on February 22, 2026 at 12:37 p.m. The location of the offence is listed as 1470 Highway No. 6, Flamborough, Ontario. Flamborough is a community in the city of Hamilton, Ontario.

10The Appellant testified that, on the date of the impoundment, she gave the keys of the vehicle to Ms. Woodcock because she knew that her son, Adrian, was suspended from driving. She testified that she saw Ms. Woodcock’s driver’s licence a few days before and noted that the expiry date ‘was good’. The Appellant further testified that she was unaware that Ms. Woodcock’s driver’s licence was also suspended until the impoundment of the vehicle.

11In addressing the issue of due diligence, I must consider the question of who was the driver at the time of the impoundment of the vehicle.

12First, I note that the issuance date of the Summons to Defendant is February 22, 2026, the date of the impoundment. Conversely, while the NTR is undated, the Registrar advised that it would have been produced on the the same date as the Notice of Impoundment and Release (‘NOIR”), which was also presented into evidence by the Registrar. The NOIS is dated April 17, 2026. The Registrar submits that the time on the NTR and the time on the Summons would be taken from the records (or notes) recorded concurrent with the events. This infers that both the NTR and the Summons are correct. I do note, however, that I do not have those concurrent notes before me to verify in order to cross-reference them with the NTR and the Summons.

13Secondly, I note that the time of the impoundment on the NTR is noted as 12:19, 19 minutes before the time of the offence time of the Summons. The Registrar submits that we do not know what transpired in the 19 minutes between the time that the police pulled the vehicle over (the time which would appear on the NTR) and the time that Ms. Woodcock was noted to have been driving while under suspension (the time which would appear on the Summons). One possibility that the Registrar presents is that, after being pulled over, Ms. Woodcock switched seats with the driver. The Registrar submits, without evidence, that this occurs quite often. While this may have been the case, I find this to be speculation.

14Third, the appellant submitted that she periodically checked Ms. Woodcock’s driver’s licence due to her “trust issues,” arising from occasions when she lent her vehicle to Ms. Woodcock, who in turn permitted Adrian Gembal to drive. On its face, this explanation is illogical, as verifying Ms. Woodcock’s licence does not ensure that she would refrain from allowing Mr. Gembal to operate the vehicle. Nonetheless, the appellant’s evidence constitutes an admission that this practice had occurred in the past. While this does not account for Ms. Woodcock’s subsequent charge of driving while under suspension, I find it likely that a similar sequence of events occurred in this instance.

15Furthermore, and without resort to speculation, the onus rests with the appellant to persuade the Tribunal, on a balance of probabilities, that Ms. Woodcock, not Adrian Gembal, was driving the vehicle at the time of the impoundment. The only documentary evidence before the Tribunal consists of the NTR and the Summons. There is no additional evidence or testimony capable of tipping the balance in favour of either version of events. In the absence of such evidence, and given the appellant’s onus, I am compelled to accept the accuracy of the NTR as the best evidence of the driver at the time of the impoundment. Accordingly, I am satisfied that, based on the NTR, Adrian Gembal, and not Ms. Woodcock, was operating the vehicle at the relevant time.

16Having accepted that Adrian Gembal was operating the vehicle, I note that the appellant presented no evidence or testimony demonstrating that she exercised due diligence to ascertain whether Mr. Gembal’s driver’s licence was valid and not under suspension at the time of the impoundment. On the contrary, the appellant testified that a prior vehicle she owned was impounded in December 2025 for a period of 45 days after her son drove the vehicle while prohibited from driving.

17Accordingly, I conclude that the appellant failed to exercise due diligence to determine whether the driver of the motor vehicle, at the time it was detained for the purpose of impoundment, held a valid driver’s licence that was not under suspension and was not subject to ignition interlock conditions, as required by s. 50.2(3)(c) of the Act.

ii. The appellant is precluded from relying upon the ground of exceptional hardship

18As noted, the appellant admitted to a previous 45-day impoundment in December, 2025 of a vehicle owned by her.

19Section 50.2(3)(d) of the Act states:

(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may order the Registrar to release the motor vehicle are,

(d) that the impoundment will result in exceptional hardship.

20Section 50.2(4) of the Act states:

Clause (3)(d) does not apply if there was a previous impoundment under section 55.1 with respect to any motor vehicle then owned by the same owner. 2009, c. 5, s. 22.

21I am satisfied that, as there was a previous impoundment under s. 55.1 of a vehicle owned by the appellant, the appellant is precluded from relying upon exceptional hardship as a ground for an appeal of the present impoundment.

CONCLUSION

22Having found that the appellant did not exercise due diligence to determine whether the driver of the motor vehicle, at the time it was detained for the purpose of impoundment, held a valid driver’s licence that was not under suspension, and having further found that the appellant is precluded from relying on the ground of exceptional hardship, I hereby confirm the impoundment of the vehicle.

ORDER

23The Tribunal orders that the impoundment of the vehicle is confirmed.

Jeffery Campbell

Vice-Chair