A.G. v. Her Majesty the Queen in Right of Ontario (Minister of Transportation)
[Indexed as: G. (A.) v. Ontario (Minister of Transportation)]
Ontario Reports
Ontario Superior Court of Justice,
Divisional Court,
Then R.S.J., Himel and Sachs JJ.
December 18, 2013
118 O.R. (3d) 449 | 2013 ONSC 7461
Case Summary
Motor vehicles — Licences — Applicant having youth court conviction and two adult convictions for impaired driving — Applicant receiving automatically generated notice of three-year licence suspension after second adult conviction due to failure to flag youth court conviction — Applicant receiving corrected notice of indefinite suspension for "second subsequent conviction" under s. 41(1)(h) of Highway Traffic Act after youth court conviction was discovered — Provisions of Youth Criminal Justice Act not conflicting with Highway Traffic Act — Registrar of Motor Vehicles not prohibited from using applicant's youth court conviction as one of three convictions that led to indefinite suspension — Indefinite suspension not violating doctrines of public estoppel or legitimate expectations as registrar was acting pursuant to statutory duty — Highway Traffic Act, R.S.O. 1990, c. H.8, s. 41(1)(h) — Youth Criminal Justice Act, S.C. 2002, c. 1.
The applicant had a youth court conviction and two adult convictions for impaired driving. Under s. 41(1)(g) of the Highway Traffic Act, the Registrar of Motor Vehicles is required to suspend a driver's licence for three years after a "first subsequent conviction" for impaired driving, and under s. 41(1)(h), an indefinite suspension is required for a "second subsequent conviction". After the applicant's second adult conviction, he received an automatically generated notice of a three-year suspension due to a failure to flag his youth court conviction. Nearly three years later, he received an automatically generated notice that his licence was eligible for reinstatement. However, his youth court conviction was discovered and he was then sent a corrected notice of indefinite suspension. The applicant brought an application for judicial review of the indefinite suspension.
Held, the application was dismissed.
The provisions of the Youth Criminal Justice Act were not in conflict with the Highway Traffic Act. The registrar was not prohibited from using the applicant's youth court conviction as one of the three convictions that led to the indefinite suspension. The indefinite suspension of the applicant's licence did not violate the doctrines of public estoppel or legitimate expectations. Neither of those doctrines was available in this case as their application would conflict with the registrar's statutory duty in s. 41(1) of the Act. There can be no estoppel in the [page450] face of an express provision of a statute, nor can a legitimate expectation conflict with the decision-maker's statutory duty. The registrar was not functus after the notice of reinstatement was sent out. The action of the registrar in correcting the administrative error by issuing the applicant with the indefinite suspension mandated by statute was fair and reasonable.
Cases referred to
Baker v. Canada (Ministry of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 243 N.R. 22, J.E. 99-1412, REJB 1999-13279, 14 Admin. L.R. (3d) 173, 1 Imm. L.R. (3d) 1, 89 A.C.W.S. (3d) 777; Breen v. Ontario (Registrar of Motor Vehicles), [1992] O.J. No. 2591, 42 M.V.R. (2d) 172, 18 W.C.B. (2d) 121 (C.A.); C.-W. (C.) (Litigation guardian of) v. Ontario (Health Insurance Plan, General Manager) (2009), 2009 712 (ON SCDC), 95 O.R. (3d) 48, [2009] O.J. No. 140, 246 O.A.C. 115, 305 D.L.R. (4th) 538, 174 A.C.W.S. (3d) 247 (Div. Ct.); Canada (Attorney General) v. Law Society of British Columbia, 1982 29 (SCC), [1982] 2 S.C.R. 307, [1982] S.C.J. No. 70, 137 D.L.R. (3d) 1, 43 N.R. 451, [1982] 5 W.W.R. 289, 37 B.C.L.R. 145, 19 B.L.R. 234, 66 C.P.R. (2d) 1, 15 A.C.W.S. (2d) 304; Canada (Attorney General) v. Mavi (2011), 108 O.R. (3d) 240, [2011] 2 S.C.R. 504, [2011] S.C.J. No. 30, 2011 SCC 30, 417 N.R. 126, 279 O.A.C. 63, 332 D.L.R. (4th) 577, 19 Admin. L.R. (5th) 1, 2011EXP-1819, J.E. 2011-1008, EYB 2011-191692, 97 Imm. L.R. (3d) 173, 2 M.P.L.R. (5th) 297, 221 A.C.W.S. (3d) 742; Chatterjee v. Ontario (Attorney General), [2009] 1 S.C.R. 624, [2009] S.C.J. No. 19, 2009 SCC 19, 249 O.A.C. 355, 387 N.R. 206, 242 C.C.C. (3d) 129, 304 D.L.R. (4th) 513, EYB 2009-157414, J.E. 2009-760, 65 C.R. (6th) 1; Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), 1997 399 (SCC), [1997] 1 S.C.R. 12, [1997] S.C.J. No. 5, 142 D.L.R. (4th) 193, 206 N.R. 363, J.E. 97-292, 43 Admin. L.R. (2d) 1, 31 C.C.L.T. (2d) 236, 68 A.C.W.S. (3d) 642; Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, 329 N.B.R. (2d) 1, 64 C.C.E.L. (3d) 1, EYB 2008-130674, J.E. 2008-547, [2008] CLLC Â220-020, 170 L.A.C. (4th) 1, 372 N.R. 1, 69 Imm. L.R. (3d) 1, 291 D.L.R. (4th) 577, 69 Admin. L.R. (4th) 1, 95 L.C.R. 65, D.T.E. 2008T-223, 164 A.C.W.S. (3d) 727; Fingland v. Ontario (Ministry of Transportation) (2008), 93 O.R. (3d) 268, [2008] O.J. No. 4861, 2008 ONCA 812, 70 M.V.R. (5th) 15, 243 O.A.C. 37, affg [2007] O.J. No. 3880, 230 O.A.C. 78, 56 M.V.R. (5th) 143, 161 A.C.W.S. (3d) 903, 75 W.C.B. (2d) 40 (Div. Ct.); Gutteridge v. British Columbia (Superintendent of Motor Vehicles), [2001] B.C.J. No. 861, 2001 BCSC 620, 16 M.V.R. (4th) 98, 50 W.C.B. (2d) 120 ; Keil v. British Columbia (Superintendent of Motor Vehicles), [2000] B.C.J. No. 2525, 2000 BCSC 1818, 7 M.V.R. (4th) 257, 48 W.C.B. (2d) 301; L. (G.) v. Children's Aid Society of Algoma, [2005] O.J. No. 1786, 2005 14940, 65 W.C.B. (2d) 91 (C.A.); Lévis (City) v. 2629-4470 Quebec Inc., [2006] 1 S.C.R. 420, [2006] S.C.J. No. 12, 2006 SCC 12, 266 D.L.R. (4th) 165, 346 N.R. 331, J.E. 2006-818, 207 C.C.C. (3d) 1, 36 C.R. (6th) 215, 31 M.V.R. (5th) 1, 68 W.C.B. (2d) 832; Mount Sinai Center v. Quebec (Ministry of Health and Social Services), [2001] 2 S.C.R. 281, [2001] S.C.J. No. 43, 2001 SCC 41, 200 D.L.R. (4th) 193, 271 N.R. 104, J.E. 2001-1280, 36 Admin. L.R. (3d) 71, REJB 2001-24843, 106 A.C.W.S. (3d) 182; Murray v. Wheatland (County Subdivision and Development Board), [2007] A.J. No. 1444, 2007 ABCA 424, 41 M.P.L.R. (4th) 14, 422 A.R. 123, 162 A.C.W.S. (3d) 869; Peters v. Canada (Registrar of Firearms), [2009] A.J. No. 328, 2009 ABPC 82 (Prov. Ct.); Prince Edward Island (Secretary) v. Egan, 1941 1 (SCC), [1941] S.C.R. 396, [1941] S.C.J. No. 20, [1941] 3 D.L.R. 305, 76 C.C.C. 227; Ross v. Ontario (Registrar of Motor Vehicles), 1973 176 (SCC), [1975] 1 S.C.R. 5, [1973] S.C.J. No. 130, 42 D.L.R. (3d) 68, 1 N.R. 9, 14 C.C.C. (2d) 322, 23 C.R.N.S. 319
Statutes referred to
Canadian Charter of Rights and Freedoms [page451]
Criminal Code, R.S.C. 1985, c. C-46 [as am.]
Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 1 [as am.], (1) [as am.], 41 [as am.], (1) [as am.], (f), (g), (h), 41.1 [as am.], 43(1) [as am.]
Young Offenders Act, R.S.C. 1985, c. Y-1 [Rep. by S.C. 2002, c. 1, s. 199], ss. 44.1(1)(h), 45(4)
Youth Criminal Justice Act, S.C. 2002, c. 1, ss. 3 [as am.], 82 [as am.], (1) [as am.], (2), (3), (4) [as am.], 114, 119 [as am.], (1), 122, 128 [as am.], (2) [as am.], 129
Authorities referred to
Jones, David Phillip, and Anne S. de Villars, Principles of Administrative Law, 5th ed. (Toronto: Carswell, 2009)
APPLICATION for judicial review of an indefinite driver's licence suspension.
Leo Adler, for applicant.
Hart Schwartz and David Milner, for respondent.
[1] BY THE COURT: -- A.G. (the "applicant") applies for judicial review of the indefinite suspension of his driver's licence by the Registrar of Motor Vehicles (the "Registrar") based on three previous convictions for impaired driving. The application is in the nature of mandamus to compel the Minister of Transportation (the "Minister" or the "Ministry") to treat his February 11, 2009 conviction as a "first subsequent conviction" under s. 41(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA" or the "Act"), and to direct the Minister to issue a valid driver's licence to him forthwith, as the suspension period for a first subsequent conviction (three years) has already been served. While the applicant also made reference to alleged breaches of provisions of the Canadian Charter of Rights and Freedoms in the notice of application, the applicant did not actually advance any Charter arguments in his factum or during the hearing. The Minister opposes the relief sought and asks that the application be dismissed.
Factual Background
[2] When he was 17 years old, the applicant was charged in Strathroy, Ontario with the offence of impaired driving under the Criminal Code, R.S.C. 1985, c. C-46 (the "Code") and tried under the Young Offenders Act, R.S.C. 1985, c. Y-1 (the "YOA"). He pleaded guilty in the Youth Court in London, Ontario on July 12, 2001 (findings of guilt under the YOA are known as "dispositions"), and received a penalty that included a $600 fine and a 12-month Canada-wide driving prohibition. [page452]
[3] Following the guilty plea, information regarding the disposition was entered into Integrated Court Offences Network ("ICON"), a government computer system, by the clerk of the court. From there, the information was accessed by the Registrar of Motor Vehicles and kept in a separate file cabinet, in order to ensure its non-disclosure as it related to the disposition of a young offender. On the basis of the disposition, the Registrar issued a one-year administrative suspension of the applicant's licence under s. 41(1)(f) of the HTA which expired on July 12, 2002.
[4] In 2005, the Auditor General conducted an audit of practices at the Ministry and found that separating the driving records of young offenders into a cabinet where they had to be manually retrieved contributed to processing errors. The Auditor General recommended the Registrar use an automated database to process and store the driving records of young offenders. In response, the Ministry developed the content manager system in 2007, an electronic database that stores data received from the ICON system relating to drivers' youth convictions. This system is kept separate from the Ministry's main database of driver records, the Licensing and Control System ("LCS"), which is accessible to other government employees and the public.
[5] This bifurcation of records has the potential to cause administrative problems when a person with a youth conviction for impaired driving is convicted again as an adult. Normally, when a person is convicted of impaired driving the Ministry's LCS program takes the information from ICON and uses it to generate a suspension notice that is then automatically mailed to the driver. If the driver has a prior conviction for impaired driving, the LCS will take note of this and send a notice that reflects the proper length of suspension, given the cumulative number of convictions. Under s. 41(1)(f) of the HTA, the Registrar is obligated to suspend a driver's licence for one year after a first conviction for impaired driving, three years after a "first subsequent conviction" (s. 41(1)(g)), and indefinitely after a "second subsequent conviction" (s. 41(1)(h)). Where a convicted driver has a prior youth conviction, however, the LCS will not recognize the prior conviction because information regarding it is stored separately on content manager to ensure confidentiality. In such situations, the LCS will send the driver an incorrect notice of suspension that does not account for all relevant past convictions. The solution to this problem is a special coded flag on that driver's LCS file that alerts an analyst in the Ministry's Driver Improvement Office that the suspension notice may have to be corrected. The analyst will check the driver's file via the [page453] secure content manager program, note the prior youth conviction and send out a corrected notice of suspension.
[6] On August 24, 2007, the applicant was charged with impaired driving in Milton, Ontario (the "Milton charge"). While he was awaiting trial on the Milton charge, the applicant was charged again with impaired driving, this time on August 8, 2008, in Cambridge, Ontario (the "Cambridge charge"). The latter incident also resulted in a stunt driving charge under the HTA for driving 165 km/hour in a 100 km/hour zone.
[7] On December 5, 2008, the applicant pleaded guilty to the Cambridge charge. He received a $1,000 fine and a 15-month Canada-wide driving prohibition under the Code for having driven impaired, and a $2,000 fine for the stunt driving charge.
[8] The information concerning the conviction was entered by the court clerk into the ICON system and then automatically forwarded to the LCS, which sent the applicant an automatically generated suspension notice on December 11, 2008. The notice stated, in error, that he was suspended under the HTA for 15 months (the mandatory one-year suspension for a first impaired driving conviction, plus three months to match the suspension to the length of driving prohibition ordered by the court). On December 17, 2008, after the conviction was properly determined to be a "first subsequent conviction" according to the manual process in the Driver Improvement Office described above, the Ministry sent a corrected notice indicating the applicant's licence was suspended for three years.
[9] On February 11, 2009, the applicant pleaded guilty to the Milton charge and was sentenced to a fine of $1,000, a 12-month Canada-wide driving prohibition under the Code, and two years' probation with terms that he abstain from the purchase, possession and consumption of alcohol, and attend and participate in rehabilitative and alcohol abuse programs and counselling as recommended by his probation officer. Once again, information regarding the conviction was forwarded to the LCS via the ICON system for licence suspension purposes.
[10] On February 18, 2009, the LCS sent the applicant an automatically generated notice of suspension stating that his licence was suspended under the HTA for three years. The Ministry takes the position that this was not correct, as this was the applicant's third conviction, which mandated an indefinite suspension under the HTA. Unlike after his second conviction, however, the manual correction process based on the coded flag did not work as intended and no manual notice of suspension was sent out to correct the errant notice. The Ministry is not aware at what stage of the process this error occurred. [page454]
[11] Nearly three years later, on February 3, 2012, the LCS sent an automatically generated notice to the applicant advising that his licence was eligible for reinstatement as of February 11, 2012. No temporary driver's licence was sent with this notice because the applicant was required to reapply for a Class G1 licence and complete the relevant test. The applicant contacted the Driver Improvement Office and spoke with an analyst on February 8, 2012. The analyst noticed the coded flag on the applicant's file and determined that the three-year suspension was an error. The analyst spoke to a supervisor and, as a result, the Ministry prepared a corrected notice of suspension that was mailed to the applicant on February 10, 2012. The Ministry also updated his driving record to show that his suspension was indefinite.
[12] The applicant attended at a Ministry office on February 17, 2012 to take the G1 test, but was told to contact the Ministry as he had an indefinite suspension on his record. He received the corrected notice of suspension in the mail the next day.
The Legislative Context
The application of the HTA
[13] Under s. 1(1) of the HTA, a "conviction" is defined to include a "disposition" made under the YOA or a "sentence" imposed under the Youth Criminal Justice Act, S.C. 2002, c. 1 (the "YCJA"). The YCJA came into force when the YOA was repealed on April 1, 2003.
[14] As noted above, under s. 41(1)(f) of the HTA, the Registrar is obligated to suspend a driver's licence for one year after a first conviction for impaired driving, three years after a "first subsequent conviction" (s. 41(1)(g)), and indefinitely after a "second subsequent conviction" (s. 41(1)(h)). An indefinite suspension is also referred to by the Ministry as a "lifetime suspension" and a driver subject to an indefinite suspension can apply for reinstatement after ten years.
[15] The suspensions are administrative penalties that occur by operation of law independently of the criminal penalty imposed by the trial judge under the Criminal Code. The penalty under the Code often includes a Canada-wide driving prohibition and s. 43(1) of the HTA provides that the administrative suspension will be harmonized with the length of the criminal prohibition if the prohibition is for a period longer than the automatic suspension under s. 41(1)(f) to (h) of the HTA. [page455]
Issues Raised on this Application
[16] The following are the issues before us:
(1) Do the provisions of the YCJA conflict with the HTA? Does federal paramountcy apply?
(2) Did the Registrar's indefinite suspension of the applicant's driver's licence violate the doctrines of public estoppel or legitimate expectations?
(3) Does the case of Fingland v. Ontario (Ministry of Transportation) support the applicant's position that the indefinite suspension is unreasonable and unfair? Was the Registrar functus once the notice of reinstatement was sent?
Standard of Review
[17] The standard of review concerning the division of powers between Parliament and the provinces in the Constitution Act, 1867 is correctness: see Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, 2008 SCC 9, at para. 58. The doctrines of public estoppel and legitimate expectations are issues of procedural fairness and there is no need to assess the appropriate standard of review when dealing with such issues. On the issue of the Registrar's action to correct the administrative error by indefinitely suspending the applicant's driver's licence, the standard of review is reasonableness: see Fingland v. Ontario (Ministry of Transportation), [2007] O.J. No. 3880, 230 O.A.C. 78 (Div. Ct.), at para. 13, affd (2008), 93 O.R. (3d) 268, [2008] O.J. No. 4861, 2008 ONCA 812.
1. Do the provisions of the [YCJA](https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html) conflict with the [HTA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html)? Does federal paramountcy apply?
[18] The applicant's first argument centres around the fact that the applicant's first impaired driving conviction occurred while he was a youth. According to the applicant, the provisions of the YOA and the YCJA required three things:
(i) that three years after his conviction as a young offender the records relating to his conviction would be destroyed;
(ii) that the Registrar would be prohibited from maintaining or using any information relating to this conviction three years after it occurred;
(iii) that three years after this conviction the applicant would be deemed not to have committed any offence. [page456]
[19] When the applicant pleaded guilty to impaired driving as a youth, he did so under the YOA. However, before three years had expired the YCJA had come into force and replaced the YOA. The applicant concedes that, by virtue of the transitional provision in the YCJA, the relevant legislation to consider for the purposes of his argument is the YCJA.
[20] With respect to the destruction of youth court records, the applicable provision is s. 128(2) of the YCJA. That section provides that the "person or body keeping the record" may in his or her discretion destroy the record. The wording of the section is discretionary, not mandatory. Thus, there is no merit to the applicant's submission that the provisions of the YCJA required that the records relating to his youth conviction be destroyed.
[21] Furthermore, under the scheme of the YCJA the Registrar is not prohibited from accessing, within the three-year access period, information contained in youth court records. Nor, once the Registrar has lawfully obtained that information, is he or she precluded from continuing to use that information for highway safety purposes after the expiry of the access period.
[22] Section 114 of the YCJA provides that records relating to a youth court proceeding may be kept by the youth justice court, the review board or any other court dealing with matters arising out of proceedings under the Act. Section 119(1) of the YCJA sets out who can be given access to youth court records. Included in the list is:
119(1)(r) a person or a member of a class of persons designated by order of the Governor in Council, or the lieutenant governor in council of the appropriate province, for a purpose and to the extent specified in the order[.]
[23] On November 6, 1986, an Order-in-Council was approved under s. 44.1(1)(h) of the YOA providing the Registrar with access to youth court records:
[A]nd in particular to receive records of dispositions, convictions or discharges arising from vehicle related offences under the Criminal Code (Canada) or the Young Offenders Act (Canada) and to use the information from such records for the proper administration of the Highway Traffic Act.
[24] The Registrar accessed the information about the applicant contained in the applicable records in 2001, pursuant to this Order-in-Council. Under s. 122 of the YCJA, a person who is authorized to be given access to a record under s. 119 "may be given any information contained in the record". The Registrar did not get the record itself; that was kept by the youth court. Rather, the Registrar received certain relevant information from those records in the manner described above. [page457]
[25] Once the Registrar has lawfully gained access to the information contained in the youth court record, he or she can continue to use it for the purpose for which it was obtained -- highway safety. No provision of the HTA requires the Registrar to cease using that information. Furthermore, no provision of the YCJA bars the Registrar from using the information to calculate the proper mandatory suspension under the HTA.
[26] Section 128 of the YCJA does provide that no record that is kept under the relevant provisions of the legislation "may be used for any purpose that would identify the young person to whom the record relates as a young person dealt with under this Act . . .". Section 128 is directed at the keeper of the actual records. It does not apply to the Registrar's own information drawn from the record and kept for the purposes of the HTA, even if some of the information in the Registrar's database is also found in the youth court records kept by the relevant bodies under the YCJA. In L. (G.) v. Children's Aid Society of Algoma, [2005] O.J. No. 1786, 2005 14940 (C.A.), the Ontario Court of Appeal found that it was appropriate for the trial judge to use the fact of a prior youth sexual assault conviction in a child welfare proceeding because the information concerning the sexual assault did not emanate from any "record" within the meaning of s. 45(4) of the YOA, but came from the Children's Aid Society's own records concerning the complaint giving rise to the conviction.
[27] Section 129 [of the YCJA] is the section that applies to people like the Registrar who were given access to youth court records. It provides that:
- No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any other person unless disclosure is authorized under this Act.
[28] The Registrar never discloses information that he or she has received from the youth court to any other person. That information is only used internally. The fact of a youth court conviction is not identified on a person's publicly available driving record.
[29] Thus, there is no merit to the applicant's submission that the Registrar was prohibited from using the information he or she had accessed in relation to the applicant's youth court conviction. Furthermore, that information, once collected within the three-year access period after conviction, could be used by the Registrar for highway safety purposes indefinitely.
[30] Section 82(1) of the YCJA does provide that, where a young person is found guilty of an offence and their disposition or sentence has ceased to have effect (as the applicant's had [page458] after three years), the "young person is deemed not to have been found guilty or convicted of the offence". Further, s. 82(4) states that "[a] finding of guilt under this Act is not a previous conviction for the purposes of any offence under any Act of Parliament for which a greater punishment is prescribed by reason of previous convictions".
[31] According to the applicant, these sections prohibited the Registrar from counting the applicant's youth court conviction as one of the three impaired driving convictions that led to his indefinite suspension. To reinforce this argument, the applicant points to the section of the HTA that specifically provides that the HTA applies equally to someone who has received a pardon as it does to someone who has not. The applicant submits that if the provincial legislature had wished to undermine the effect of the provision in s. 82 of the YCJA, it would have done so explicitly, as it did in relation to pardons.
[32] Section 1 of the HTA contains a definition of "conviction" that specifically "includes a disposition made under the Young Offenders Act (Canada) or a sentence imposed under the Youth Criminal Justice Act (Canada)". In our view, by including this definition in the legislation, the legislature intended to make it clear that all convictions under the YOA or YCJA were to be considered under the HTA. No exception is made for convictions that have ceased to have effect under the federal legislation.
[33] Such an interpretation is consistent with one of the fundamental purposes of the HTA, which is to ensure the public's safety on highways. Young drivers who drink pose a real threat to public safety. Therefore, permitting youth convictions to be considered for licence suspension purposes helps dissuade young persons from drinking and driving.
[34] To the extent that the applicant is submitting that there is a conflict between the provincial legislation (the HTA) and the federal legislation (the YCJA), and that the latter must prevail, this submission ignores two fundamental legal principles:
(i) When provincial and federal legislation address the same issue a court is to not to start with the doctrine of paramountcy, but rather with the "presumption of compliance", also known as the "presumption of constitutionality". This requires presuming that Parliament is legislating to address objects within its own sphere of competence. (See Chatterjee v. Ontario (Attorney General), [2009] 1 S.C.R. 624, [2009] S.C.J. No. 19, 2009 SCC 19, at p. 648; Canada (Attorney General) v. Law Society of British Columbia, 1982 29 (SCC), [1982] 2 S.C.R. 307, [1982] S.C.J. No. 70.) [page459]
(ii) Courts should attempt to interpret federal and provincial legislation so as to avoid a conflict. As put by Estey J. in Canada (Attorney General) v. Law Society of British Columbia, supra, at p. 356 S.C.R.:
When a federal statute can be properly interpreted so as not to interfere with a provincial statute, such an interpretation is to be applied in preference to another applicable construction which would bring about a conflict between the two statutes.
[35] In both Prince Edward Island (Secretary) v. Egan, 1941 1 (SCC), [1941] S.C.R. 396, [1941] S.C.J. No. 20 and Ross v. Ontario (Registrar of Motor Vehicles), 1973 176 (SCC), [1975] 1 S.C.R. 5, [1973] S.C.J. No. 130, the Supreme Court of Canada interpreted federal legislation dealing with penalties for driving offences so as not to interfere with provincial legislation that also contained penalties for driving offences. In doing so, the court highlighted the different objects of both sets of legislation and presumed that the federal legislature did not enact its legislation with the intention of interfering with the valid provincial object of regulating highway traffic.
[36] Impaired driving is high-risk behaviour that threatens public safety. Section 41 of the HTA, which counts the number of times that a person has been convicted of impaired driving and imposes ever-longer licence suspensions, is quintessential highway safety legislation. While it is true that s. 82 of the YCJA is legislation aimed at giving young persons a fresh start by mitigating the effects of a conviction after a certain period of time, there is nothing in the wording of the section that would rebut the presumption that Parliament did not intend to interfere with the province's ability to regulate highway traffic.
[37] To the extent that the scope of s. 82 is made explicit in the wording of the provision, the only references are to areas under the jurisdiction of the federal government: for example, the exceptions listed in s. 82(1); the reference to Acts of Parliament in s. 82(2); the prohibition against requiring information about youth offences in federally regulated spheres of employment in s. 82(3); and the reference to Acts of Parliament in s. 82(4).
[38] The wording in s. 82 is to be contrasted with the wording in s. 119 under which the Registrar accesses information about youth convictions. The latter section specifically provides that it extends to people and entities who operate within the provincial sphere.
[39] Furthermore, both the preamble to the YCJA and the statement of principle in s. 3 recognize the need for public safety and the need to "foster responsibility and ensure accountability through meaningful consequences". Thus, counting a young offender's impaired driving conviction for the [page460] purposes of administrative licence suspensions under the HTA is not inconsistent with the purpose of the YCJA.
[40] For these reasons, we reject the submission that the provisions of the YCJA prohibited the Registrar from taking into account the applicant's impaired driving conviction sustained as a young offender when he was fulfilling his mandate under s. 41 of the HTA.
2. Did the Registrar's indefinite suspension of the applicant's driver's licence violate the doctrines of public estoppel or legitimate expectations?
[41] At the hearing of the application, the applicant, quite properly, abandoned his argument that the doctrine of officially induced error applied to bar the Registrar's action. This doctrine is based on the principle that punishing an accused person for a state official's mistake of law would result in a fundamental unfairness in the criminal process: see Lévis (City) v. 2629-4470 Quebec Inc., 2006 SCC 12, [2006] 1 S.C.R. 420, [2006] S.C.J. No. 12. The doctrine has no application to a judicial review of an administrative action and may only be used "as a defence to an alleged violation of a regulatory statute": see Murray v. Wheatland (County Subdivision and Development Board), [2007] A.J. No. 1444, 2007 ABCA 424, at para. 19. We agree with the words expressed in Peters v. Canada (Registrar of Firearms), [2009] A.J. No. 328, 2009 ABPC 82, at para. 7, where the court noted the defence "has only been considered in relation to criminal or quasi-criminal charges and has not been extended to compelling officials to take certain actions they've refused to take".
[42] The applicant does rely on the doctrines of public estoppel and legitimate expectation. He argues that because he believed his conviction as a young offender would have no effect after three years, he pleaded guilty to the Milton and Cambridge charges and gave up his right to a trial thinking he would receive a three-year suspension. The erroneous notice of suspension he received on February 18, 2009 only confirmed this belief. This notice went uncorrected for nearly three years and, in fact, was only corrected as a result of his phone call to the Ministry in February 2012. In the meantime, the applicant had paid the reinstatement fee and received a notice of reinstatement from the Ministry stating that his licence was eligible for reinstatement as of February 11, 2012.
[43] The applicant says that he and his family made certain plans about buying a car and fixing up his home in reliance on the notice of reinstatement. He maintains that the indefinite [page461] suspension of his licence has caused him and his family emotional and financial hardship. He argues that the Registrar is estopped from revoking the eligibility of his licence for reinstatement and that his legitimate expectation of reinstatement and an opportunity to take the test for a Class G1 licence was violated.
[44] The Ministry relies on the wording of the HTA, which imposes an automatic indefinite suspension for a driver with three impaired driving convictions and leaves the Registrar with no discretion. It says that once the applicant was convicted of his third offence, his licence had to be suspended indefinitely. The Ministry concedes that it erred in notifying the applicant that his suspension was for three years (which is the period applicable to a person with two convictions), and that the applicant apparently complied with all of the conditions of his probation. However, the Registrar discovered the error on the applicant's file before the applicant's licence was open for reinstatement. The Registrar had no discretion at that moment and the respondent argues that, for this reason, the doctrines of public estoppel or legitimate expectation do not apply in the circumstances of this case.
Estoppel and legitimate expectation
[45] The doctrine of "public law estoppel" was discussed by Justice Binnie in concurring reasons in Mount Sinai Center v. Quebec (Ministry of Health and Social Services), [2001] 2 S.C.R. 281, [2001] S.C.J. No. 43, 2001 SCC 41. He noted that the doctrine may be available against a public authority "in narrow circumstances" and distinguished it from legitimate expectations on the basis of greater evidentiary requirements: see Mount Sinai, at paras. 40, 42. Justice Binnie went on, at paras. 45-47, to use the elements of private law estoppel to describe the test for public law estoppel, but also noted how the application of the doctrine would differ in a public law context:
In this case Robert J.A. adopted the private law definition of promissory estoppel provided by Sopinka J. in Maracle v. Travellers Indemnity Co. of Canada, 1991 58 (SCC), [1991] 2 S.C.R. 50, at p. 57:
The principles of promissory estoppel are well settled. The party relying on the doctrine must establish that the other party has, [1] by words or conduct, made a promise or assurance [2] which was intended to affect their legal relationship and to be acted on. Furthermore, the representee must establish that, [3] in reliance on the representation, [4] he acted on it or in some way changed his position[.]
[T]he promise must be unambiguous but could be inferred from circumstances. [page462]
If this were a private law case I would agree that the elements of promissory estoppel are present[.]
However this is not a private law case. Public law estoppel clearly requires an appreciation of the legislative intent embodied in the power whose exercise is sought to be estopped. The legislation is paramount. Circumstances that might otherwise create an estoppel may have to yield to an overriding public interest expressed in the legislative text.
If the legislation imposes a statutory duty on an administrative actor, public estoppel will not lie because there can be "no estoppel in the face of an express provision of a statute": see Mount Sinai, at para. 47.
[46] The doctrine of legitimate expectations similarly revolves around the commitments of administrative actors. In David P. Jones and Anne S. de Villars, Principles of Administrative Law, 5th ed. (Toronto: Carswell, 2009), at 256-57, the authors explain that the doctrine of legitimate expectations is a part of the doctrine of procedural fairness. They write as follows:
The doctrine does not create substantive rights outside the procedural domain. The "circumstances" affecting procedural fairness take into account the promises or regular practices of administrative decision-makers. It will be generally unfair of the decision-makers to act contrary to their representations as to procedure or to go back on substantive promises without giving the person affected significant procedural rights.
[47] The doctrine was referenced in Baker v. Canada (Ministry of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, where Madam Justice L'Heureux-Dubé listed the factors concerning the duty of fairness. In general, where a claimant has a legitimate expectation that a certain procedure will be followed, the duty of fairness requires that this procedure be followed. It was recently defined by Justice Binnie in Canada (Attorney General) v. Mavi (2011), 108 O.R. (3d) 240, [2011] 2 S.C.R. 504, [2011] S.C.J. No. 30, 2011 SCC 30, at para. 68:
Where a government official makes representations within the scope of his or her authority to an individual about an administrative process that the government will follow, and the representations said to give rise to legitimate expectations are clear, unambiguous and unqualified, the government may be held to its word, provided the representations are procedural in nature and do not conflict with the decision maker's statutory duty.
[48] A breach of a party's legitimate expectations only applies to representations which are procedural in nature. It does not limit the range of substantive decisions that an administrative decision-maker may make within their statutory authority. [page463]
Application of public estoppel or legitimate expectation to the case at bar
[49] In our view, neither the doctrines of public estoppel or legitimate expectations are available in the case at bar because their application would conflict with the Registrar's statutory duty in s. 41(1) of the Act. The jurisprudence is clear that there can be "no estoppel in the face of an express provision of a statute", nor can a legitimate expectation "conflict with the decision maker's statutory duty": see Mount Sinai, at para. 47; Mavi, at para. 68.
[50] The Registrar has no discretion concerning suspension of a driver's licence. The suspension occurs by operation of law; it is not a decision of the registrar, but rather an automatic and mandatory consequence of a conviction: see Breen v. Ontario (Registrar of Motor Vehicles), [1992] O.J. No. 2591, 42 M.V.R. (2d) 172 (C.A.); Keil v. British Columbia (Superintendent of Motor Vehicles), [2000] B.C.J. No. 2525, 2000 BCSC 1818, at para. 16; Gutteridge v. British Columbia (Superintendent of Motor Vehicles), [2001] B.C.J. No. 861, 2001 BCSC 620, at para. 14; Fingland (C.A.), at para. 26.
[51] The case before us is similar to the case of C.-W. (C.) (Litigation guardian of) v. Ontario (Health Insurance Plan, General Manager) (2009), 2009 712 (ON SCDC), 95 O.R. (3d) 48, [2009] O.J. No. 140 (Div. Ct.). There, the Divisional Court reviewed the decisions of the Health Services Appeal and Review Board concerning payments made for medical treatment outside Canada where prior written approval by the general manager of the Ontario Health Insurance Plan had not been obtained before services were rendered. The board affirmed the decision to deny payment. The appellants argued that they were entitled to reimbursement because of the doctrine of legitimate expectations. The court held that neither legitimate expectations nor public estoppel will lie where conformity with the doctrines would require an administrative actor to violate a clear statutory requirement: C.-W. (C.), at paras. 82, 86.
[52] Applying either doctrine would require the Registrar to ignore a clear statutory duty and for that reason the applicant's arguments on public estoppel and the doctrine of legitimate expectations must fail.
3. Does the case of Fingland support the applicant's position? Was the Registrar functus once the notice of reinstatement was sent?
[53] The applicant relies on the decisions of the Divisional Court and the Ontario Court of Appeal in Fingland to support [page464] his argument that the action by the Registrar was not fair or reasonable and should be set aside. The applicant further submits that the Registrar was functus when he corrected the erroneous notice after having notified the applicant that his licence would be eligible for reinstatement on February 11, 2012. The respondent counters by stating that the action by the Registrar to correct the administrative error by issuing a notice of indefinite suspension was reasonable and fair. The Registrar was not functus after the notice of reinstatement was sent out because the Registrar had not yet reinstated the licence.
[54] In Fingland, the applicant had three convictions for impaired driving and the first conviction was imposed while the applicant was a young offender. During the trial on the third charge, it was undisputed that the Crown represented to Fingland that a guilty plea would be treated as his second conviction "for all purposes". After the third conviction, the Ministry should have sent Fingland a notice of indefinite suspension. Instead, as a result of an administrative error, the Ministry sent him a three-year suspension notice. Fingland said that this notice confirmed his belief, based on the representations made in court, that he would only be subject to a three-year suspension. When the three-year suspension expired, Fingland applied for his licence to be reinstated and the Registrar granted the reinstatement. Fingland then drove for the next 2.5 years until the Ministry noticed the error and suspended his licence indefinitely.
[55] The Divisional Court held that the Ministry's cancellation of the licence 2.5 years after it had been reinstated was unreasonable and unfair. The Court of Appeal upheld the decision on the same basis.
[56] There are several key differences between this case and Fingland. First, in Fingland the Registrar did exercise a statutory discretion under s. 41.1 of the HTA to reinstate Fingland's licence. In the case at bar, the Registrar simply performed his mandatory statutory duty by issuing the applicant an indefinite licence suspension one day before there would have been any discretion to reinstate the licence. Second, while it was not in dispute in Fingland that representations were made to the driver in court that he would be treated as a second offender for all purposes, in the case at bar, the respondent vigorously disputes that government officials ever represented to the applicant during his youth or adult court appearances that any of his convictions would not "count" for the purposes of HTA suspensions. Third, the reliance interest in Fingland of the applicant having [page465] driven for more than two years with a reinstated licence is not a factor in the case before us.
[57] For these reasons, we find that the case of Fingland can be distinguished from the case before us. We conclude that the action of the Registrar to correct the administrative error by issuing the applicant with the indefinite licence suspension mandated by statute was fair and reasonable.
[58] Finally, we do not agree that the Registrar was functus after the notice of reinstatement was sent out. The sending of the notice indicating that the licence was eligible for reinstatement as of a certain date was not the end of the matter. As stated above, the Registrar had no discretion to reinstate the licence once the error was discovered. Even if there was discretion to issue the licence as of that date, however, the notice did not bind the Registrar to actually reinstate the licence on the date stated in the notice: see Comeau's Sea Foods Ltd. v. Canada (Minister of Fisheries and Oceans), 1997 399 (SCC), [1997] 1 S.C.R. 12, [1997] S.C.J. No. 5, at paras. 29, 43. We agree with Justice Binnie's plain statement of the operative principle -- "In government, nothing is done until it is done": see Mount Sinai, at para. 1.
Conclusion
[59] For these reasons, the application for judicial review is dismissed. As the parties have agreed, there will be no order as to costs.
Application dismissed.
End of Document