Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 7631/MED
CASE NAME: 7631 v. Registrar of Motor Vehicles
Appeal under Section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a Decision of the Minister of Transportation Pursuant to Section 32(5)(b)(ii) of that Act
Applicant
Applicant
-and-
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR:
Dr. David Borenstein, Member
Patricia McQuaid, Vice Chair
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Russell McKnight, Agent
Heard by teleconference:
November 14, 2012
DECISION AND ORDER
This is a hearing to determine the jurisdiction of the Tribunal to hear an appeal from a decision of the Registrar to suspend the Applicant’s licence pursuant to section 32(5)(b)(ii) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
FACTS
On or about July 7, 2004, the Ministry sent a notice to the Applicant that his licence was suspended pursuant to section 32 (5)(b)(ii) of the Act because “his visual field did not meet the minimum requirements”. The letter went on to state that the decision could be reconsidered upon receipt of further specific information from an eye specialist. The Applicant appeals that decision to the Tribunal. Upon receipt of that notice of appeal, the Tribunal wrote to the Applicant stating that it appeared that it did not have jurisdiction to set aside a driver’s licence suspension made under section 32(5)(b)(ii)and requested submissions from the Applicant explaining why the Tribunal should hear his appeal.
The Registrar then filed a Notice of Motion seeking costs in the amount of $800 should this matter proceed to hearing in Thunder Bay, the city in which the Applicant resides. These matters, both the jurisdictional issue and the Registrar’s motion for costs, were heard by teleconference on November 14, 2012.
ISSUE
Does the Tribunal have jurisdiction to entertain an appeal from a licence suspension under s. 32(5)(b)(ii)?
ANALYSIS
The panel heard submissions from both the Applicant and the Mr McKnight on behalf of the Registrar. What was clearly understood was that the Applicant is aggrieved by the Registrar’s decision to suspend his licence and feels frustrated in his attempts to have that decision set aside. The panel is sympathetic to his situation, however, the jurisdiction of the Tribunal is clearly set out in section 50 of the Act which states:
Appeal
- (1) Every person aggrieved by a decision of the Minister made under subsection 32 (5) for which there is a right of appeal pursuant to a regulation made under clause 32 (14) (n) or a decision of the Registrar under section 17 or 47 may appeal the decision to the Tribunal. 2002, c. 18, Sched. P, s. 17.
Powers of Tribunal
(2) The Tribunal may confirm, modify or set aside the decision of the Minister or Registrar. R.S.O. 1990, c. H.8, s. 50 (2); 1999, c. 12, Sched. G, s. 24 (6).
As stated in previous decisions of the Tribunal (see 6442/MED, LAT February 22, 2011 and 6928/MED ,LAT October 21, 2011), section 50 is clear in differentiating between a general right of an appeal from decisions under section 17 or 47 and a far more limited right of appeal from decision reached under s. 32 (5). The latter is a right only provided pursuant to regulation. The applicable regulation is s. 25.1 of O.Reg 340/94 which states:
25.1 A decision by the Minister under sub-clause 32(5)(b)(i) of the Act is prescribed as a kind of decision a person may appeal under section 50 of the Act….
The wording is clear: the only appeal available is that arising from a decision based on sub-clause (i). The language is silent regarding sub-clause (ii) which is the Applicant’s concern. As the Tribunal stated at the hearing of this motion, in the absence of express regulatory authority permitting appeals under s. 32(5)(b)(ii), the legislation makes it clear that the Tribunal has no jurisdiction to hear this appeal.
An appeal before the Tribunal is therefore not the avenue by which the Applicant can seek a reversal or reconsideration of the Minister’s decision. The panel understands from Mr McKnight that the Applicant has very recently submitted documentation which has now been provided to the Ministry’s Medical Review Section for their assessment which could, depending on the outcome of that assessment, lead to reinstatement of the licence.
The Registrar did file a motion for costs though at the conclusion of this hearing, Mr McKnight stated that he was seeking only $375 rather than $800 as requested on the notice of motion, in light of the fact that an “in person” hearing was not required. Relying upon Rule 14.1 of the Tribunal’s Rules of Practice, Mr McKnight submits that the Applicant has acted frivolously and vexatiously in pursuing the appeal in spite of the fact that he was told by letter from the Tribunal that it did not have jurisdiction.
Costs are discretionary in nature. Rule 14.2 sets out the circumstances, though not exhaustive, which the Tribunal may consider in determining whether a party acted unreasonably, frivolously or vexatiously. The circumstances here do not seem to fall within those outlined in Rule 14.2. The Applicant indicated that he read the Act and as a member of the general public he may well have understood that an appeal would lie with the Licence Appeal Tribunal. He did not embark on this appeal frivolously and given his frustration with his situation, it is understandable that having thought he found an avenue to redress that situation, he did not want to give up on it. The Tribunal, in dealing with this matter by teleconference sought to reduce the costs for all parties to the process. Given this particular fact situation, there will be no order as to costs.
DECISION
The Tribunal therefore finds it has no jurisdiction to hear the Applicant’s appeal. The appeal is, therefore a nullity and the Tribunal shall close this file The Registrar’s motion for costs is refused.
LICENCE APPEAL TRIBUNAL
David Borenstein, Member
Patricia McQuaid, Vice Chair
RELEASED: November 19, 2012