COURT FILE NO.: 226/02

DATE: 20020930

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

FARLEY, THEN AND LINHARES DE SOUSA JJ.

B E T W E E N:

FRANCO FONTANA

Applicant

• and -

THE REGISTRAR OF MOTOR VEHICLES

Respondent

Peter A. Simm, for the Applicant, Franco Fontana

Elaine Atkinson and Susan Freeborn, for the Respondent, The Registrar of Motor Vehicles

HEARD: June 25, 2002

BY THE COURT:

INTRODUCTION

1In the matter before the Court, the Applicant, Mr. Franco Fontana, seeks an order in the nature of mandamus compelling the Respondent, The Registrar of Motor Vehicles, to forthwith reinstate the driver’s licence of the Applicant, upon his paying the reinstatement fee of $100. Mr. Fontana’s application for judicial review was refused by the Court with written reasons to follow. These are the reasons.

THE FACTS

2The facts relevant to these reasons are the following. On November 7, 2000, Mr. Fontana was convicted of operating a motor vehicle while impaired under the Criminal Code of Canada. As a consequence of that conviction, Mr. Fontana’s driver’s licence was automatically suspended for one-year under the Highway Traffic Act (H.T.A.). In fact, at the time of his offence and conviction in November 2000, Mr. Fontana’s driver’s licence had been continually suspended for various infractions under the H.T.A. since July 31, 1995. The various infractions included such things as speeding, passing through red lights, driving while suspended and non-payment of fines. In January, 1999, his licence had expired.

3Upon his conviction for impaired driving, the Ontario Ministry of Transportation sent to Mr. Fontana a Notice of Suspension of Driver’s Licence, informing him that following the suspension, in order to have his licence reinstated, he was required by regulation under the H.T.A. to complete the Remedial Measures Program. The details of the legislative enactment and history of Ontario’s Remedial Measures Program was provided in the facta of both parties and did not appear to be disputed. The Remedial Measures Program, as presented and administered to suspended drivers in Ontario, consists of three parts:

1. an assessment;

2. an education or treatment program for impaired driving and;

3. a follow-up interview six-months after passing the education or treatment program.

4Given the timing provision of the third part of the program, namely, the six-month follow-up interview, it is evident that if the suspended driver were to commence the Remedial Measures Program relatively promptly after suspension, he or she may complete the whole program well within the one-year suspension period. There is no question that Mr. Fontana was fully informed of the three parts of the program and that he fully understood what was required of him in order to reinstate his licence following its suspension for his impaired driving conviction.

5Mr. Fontana did not complete the Remedial Measures Program within a one-year period. He completed the assessment component on February 21, 2002. He completed a recommended group treatment program on March 7, 2002. Upon completion of his group treatment program, he was informed that the earliest date for his six-month follow up interview was September 7, 2002 (approximately eleven months after his one-year suspension for impaired driving would have normally ended). Mr. Fontana takes issue with the requirements of the Remedial Measures Program resulting in the suspension of his driver’s licence for greater than a period of one year.

POSITION AND ARGUMENT OF THE APPLICANT

6The Applicant argues that the third component of the Remedial Measures Program, namely, the six-months follow-up interview, is not authorized by any law or regulation. It is, therefore, being applied unlawfully against him to prevent the immediate re-instatement of his licence.

7In support of his position, the Applicant relies on the following:

1. The Ontario government has always characterized in its public information documents and in its electronic information vehicles, the six-months follow-up interview as a separate, distinct and discrete component of the Remedial Measures Program (called by the Ontario government the Back on Track Program).

2. Given that separate treatment, the mandatory requirement of the follow-up interview six-months after the successful completion of the education or treatment program is not “prescribed by law”. This is the inevitable conclusion that one must come to after a careful examination of the relevant sections of the applicable legislation and regulations. The relevant legislation and regulations are the following:

Sections 41.1(1)(10) of the H.T.A.

Sections 32.3, 32.4(1)(b), 32.4(3), 32.4(7) and 32.7(1) of the Regulations under the H.T.A.

THE POSITION AND ARGUMENT OF THE RESPONDENT

8The Respondent argues that, from the very beginning of the legislative conception of the Remedial Measures Program, it was intended that the whole of the Program include three components, the assessment, the education or treatment program and the follow-up interview six- months after the completion of the education or treatment program. The public has always been advised of the three components of the Program. The Program has always been administered and applied as having the three components that must be finished in order to successfully complete the Program.

9The Respondent further argues that a correct reading of the legislation and regulations, specifically ss. 32.3, 32.4(1) and (3) and 32.9 of the Regulations of the H.T.A., indicates that all three components of the Program, including the six-month follow-up interview, are authorized by law.

ANALYSIS

10Counsel for the Applicant has presented the Court with a detailed analysis of the Ontario government’s public documentary and electronic communications about its Remedial Measures Program (Back on Track Program) in support of his position that the six-month follow-up interview is not an integral part of the Remedial Measures Program. However, after examining all of those communications and considering the Applicant’s very detailed analysis, we were not convinced that in those communications the six-month interview was treated as a distinct and separate part of the Remedial Measures Program. The interview is clearly presented to the public as an integral part of the Remedial Measures Program, the third and last step to be undertaken if the whole program was to be completed successfully. In our view, the public was clearly informed and more importantly, Mr. Fontana was fully aware of what he was required to do in order to complete the Remedial Measures Program in order to have his licence reinstated.

11The legislative authority for the Ontario government’s Remedial Measures Program is found in the following:

Section 41.1(10) of the H.T.A:

Regulations

(10) The Lieutenant Governor in Council may make regulations,

(a) governing the assessments and remedial programs required under this section and prescribing what constitutes their completion;

(e) prescribing the requirements to be met by a person in order to have his or her suspension reduced or his or her driver's licence reinstated under this section;

(h) requiring a person whose licence is suspended under subsection 41 (1) or whose licence is reinstated under this section to attend an interview with an official of the Ministry and prescribing the circumstances where the interview will be required and the purposes of the interview;

and Ontario Regulation 340/94 under the Highway Traffic Act:

Highway Traffic Act

ONTARIO REGULATION 340/94

Amended to O. Reg. 191/02

32.3 A person whose driver's licence has been suspended under section 41 of the Act shall be required to complete the assessment and remedial program set out in section 32.4 or 32.5 before his or her driver's licence may be reinstated if,

(a) the suspension is the result of a conviction of an offence under section 253, 254 or 255 of the Criminal Code (Canada);

(b) the suspension is the result of a conviction of an offence under a provision that is enacted by a state of the United States of America and that is designated by Ontario Regulation 37/93; or

(c) the suspension is the result of a conviction of an offence under section 220, 221, 236, 249 or 252 of the Criminal Code (Canada) and the person has been previously convicted of an offence under section 253, 254 or 255 of the Criminal Code (Canada) during the period within which previous convictions shall be taken into account under subsections 41 (3), (3.0.1) and (3.0.2) of the Act.

32.4 (1) A person described in section 32.3 shall,

(a) undergo an assessment carried out by an assessor authorized by the Ministry for the purpose of this section; and

(b) complete the remedial program recommended by the assessor upon the completion of the assessment as the program that is most appropriate for the person.

(3) The assessor may only recommend a remedial education or remedial treatment program approved by the Ministry and provided by a person authorized by the Ministry for the purpose of this Regulation.

32.7 (1) A person who conducts an assessment or remedial program for the purpose of this Regulation shall report to the Registrar on the outcome of the assessment or remedial program.

(2) The report shall be made in the form and submitted at the time required by the Registrar.

(3) A person who is required by this Regulation to undergo an assessment or to take a remedial program shall be considered to have completed the assessment or program for the purposes of this Regulation if the report says that the person underwent the full assessment or successfully completed the remedial program.

32.9 A remedial program required by section 32.2, 32.4 or 32.5 may vary in its content, duration, and method of delivery in different parts of Ontario.

12It was not disputed by either party that the purpose of the above legislation is public road safety and to ensure that the privilege of driving on a highway is granted and retained by those persons who demonstrate that they are likely to drive safely (s.31 H.T.A.). Mr. Fontana himself stated that he had no reason to believe that this would be bad public policy. The legislation in question must therefore be read with that purpose in mind. The principle of the purposive interpretive approach to the interpretation of legislation was endorsed in the recent decision of Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] S.C.J. No. 43.

13By applying a broad purposive interpretation to the legislation in question we are satisfied that the term “remedial program” as used in Regulation 32.4(b) and (c) can and does include the three components of the Ontario Remedial Measures Program; namely, the assessment component, the education or treatment course component and the six-month follow-up interview. There is no question that the legislators’ use of the word “program” in the regulations is, at times, loose. This may lend itself to a strict and narrow interpretation when viewed in isolation from the rest of the related legislation as maintained by the Applicant. However, we come to our conclusion keeping in mind the wording found in s. 41.1 of the H.T.A., the general purpose of the legislation, and Regulation 32.9.

Regulation 32.7(1) reads:

32.7 (1) A person who conducts an assessment or remedial program for the purpose of this Regulation shall report to the Registrar on the outcome of the assessment or remedial program.

14Mr. Fontana successfully completed his assessment and his Group Treatment Course and received a notice of this. This information was reported to the Registrar as provided by Regulation 32.7(1). However, this notice and reporting to the Registrar does not alone terminate the Remedial Program requirements if there is a third component of the program yet to be completed, namely, the six-month follow-up interview. Without that third and last part of the Remedial Measures Program having been completed by Mr. Fontana, he cannot be considered as having “completed” the assessment or program for the purposes of this Regulation as provided for in Regulation 32.7(3). Pursuant to s. 41.1(2) of the H.T.A., the Registrar is specifically authorized to continue a suspension of a driver’s licence where remedial requirements have not been met. The notice and the report to the Registrar was only as to an interim milestone in the Program.

15Finally, even if the Applicant had been successful in his arguments, the question of providing relief in the nature of mandamus compelling the Registrar to forthwith reinstate Mr. Fontana’s driver’s licence is a moot point. This is so because Mr. Fontana has no valid driver’s licence to be reinstated. Mr. Fontana’s licence had been continually suspended since July 31, 1995, although we are now told that all unpaid fines have been paid as of June 24, 2002. Mr. Fontana’s licence had expired on January 25, 1999. The application for mandamus is refused.

J.M. Farley

E.F. Then

M. Linhares de Sousa