COURT FILE NO.: 455/03

DATE: 20041013

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

then, matlow and jennings jj.

B E T W E E N:

KENNETH MORTILLARO

Applicant

• and -

HER MAJESTY THE QUEEN in right of Ontario (MINISTRY OF TRANSPORTATION) LICENCE APPEAL TRIBUNAL

Respondents

Paul Burstein, for the Applicant

David Milner, for the Respondents

HEARD: October 13, 2004

THEN J.: (Orally)

1On November 28, 1999, the Deputy Registrar Gabriel S’Kaly informed the applicant that his driver’s licence was suspended under s.32(12) of the Highway Traffic Act, effective November 28, for the reason that he failed to submit a satisfactory medical report.

2The applicant sought to appeal the suspension to the Licence Appeal Tribunal and on July 4, 2003, received notice that the Tribunal declined jurisdiction to hear an appeal for reinstatement of a driver’s licence which was suspended by the Registrar of Motor Vehicles under s.32(12)(b)(ii) of the Highway Traffic Act.

3Section 50 of the Highway Traffic Act provides:

“Every person aggrieved by a decision of the Minister under sub-clause 32(12)(b)(i) or a decision of the Registrar under section 17 or 47 may appeal the decision to the Tribunal.”

4Under this section, if the Registrar has suspended the licence under s.32(12)(b)(ii), no appeal lies to the Licence Appeal Tribunal. However, in order for the Registrar to suspend the applicant under s.32(12)(b)(ii), he may only do so pursuant to s. 3(3) of the Highway Traffic Act which provides for a delegation of power from the Ministry to the Registrar.

5Therefore, in order to decline jurisdiction, the Tribunal was required to be satisfied that the order had been made by the Minister under s.32(12)(b)(ii) or, that there had been a valid delegation of power to the Registrar by the Minister.

6There is no satisfactory evidence of the requisite delegation to the Registrar in the record before us, nor is there any indication on the part of the Tribunal that prior to the declining of jurisdiction it was satisfied that the requisite delegation had been made.

7In our view, given the record before us, it does not follow that the Registrar replaced the s.34(12)(b)(ii) suspension of the Minister with a suspension under s.47 of the Act so as to vest the Tribunal with jurisdiction to hear the appeal.

8Accordingly, if the delegation had been made, the Tribunal in our view, was correct to decline jurisdiction.

9In the circumstances, as we cannot determine if the delegation had been made, the matter is remitted to the Tribunal to assess its jurisdiction under s.50, having regard to the observations at this Court.

10No order as to costs.

THEN J.

MATLOW J.

JENNINGS J.

Date of Reasons for Judgment: October 13, 2004

Date of Release: October 20, 2004

COURT FILE NO.: 455/03

DATE: 20041013

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

then, matlow and jennings jj.