Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2017-05-03
FILE:
10636/MED
CASE NAME:
10636 v. Minister of Transportation
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)(i) - to Change the Class or Classes of Motor Vehicles in Respect of Which the Licence was issued
Appellant
Appellant
-and-
Minister of Transportation
Respondent
DECISION AND ORDER
ADJUDICATOR:
Luisa Ritacca, Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Matthew Peachey, Counsel
Heard by teleconference:
April 6, 2017
DECISION AND ORDER
OVERVIEW
- This is a motion brought by the Minister of Transportation (the “Minister”) to determine the jurisdiction of the Tribunal to hear an appeal from a decision of the Minister to grant the Appellant a G1 driver’s licence, following the lifting of his medical suspension. The Appellant takes issue with the Minister’s refusal to include in the computation of the time periods imposed by the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “Act”) and its Regulations under the graduated licence system the period of time in which the Appellant was a holder of a valid G2 driver’s licence. As set out below, the Appellant’s licence was medically suspended in 2007 and expired in 2008. The Appellant did not seek reinstatement until late 2016.
FACTS
In or about July 2003, the Appellant applied for and obtained a Class G1 driver’s licence. He then applied for and obtained his Class G2 driver’s licence in or about August 2004. The Appellant was then eligible to take a final road test in or after August 2005. Assuming he was successful on that test, the Appellant would have been entitled to receive a Class G licence. The Appellant was scheduled for his road test sometime in September 2005.
Unfortunately, sometime prior to taking his road test in September 2005, the Appellant sustained serious injuries as a pedestrian involved in a motor vehicle accident. His G2 licence was suspended for medical reasons on or about December 9, 2007. The Appellant’s driver’s licence, while still suspended, expired on July 25, 2008.
In or about late 2016, the Appellant provided the Registrar with updated medical information. As a result, his suspension was lifted. The Appellant reapplied for a driver’s licence. Because he was unlicensed for more than three years, the Registrar took the position that pursuant to section 28 of Ontario Regulation 340/94 (the “Regulation”), he was entitled to apply for and obtain a Class G1 driver’s licence. Had the Appellant been unlicensed for less than three years, he may have been entitled to a Class G2 driver’s licence.
The Appellant takes the position that the Minister ought to include the time the Appellant was the holder of a G2 licence in computing the time periods as set out in the Regulation. Had the Minister done so, the Appellant argues he would be entitled to a Class G2 driver’s licence and the rights that flow from such a licence.
The Minister refused the Appellant’s request. The Appellant has appealed to the Tribunal for review.
It is the position of the Minister that this Tribunal does not have jurisdiction to hear an appeal from the Minister’s refusal in this case. The Appellant argued that the Minister’s refusal should be subject to review by the Tribunal.
ISSUE
- Does the Tribunal have jurisdiction to consider an appeal from the Minister’s refusal in this case?
ANALYSIS
The Tribunal heard submissions from both the Appellant and Counsel for the Minister.
The Appellant ably expressed his opposition to the Minister’s refusal to take into account the time he was the holder of a valid G2 driver’s licence in computing the amount of time he must continue to wait before applying for a Class G driver’s licence. Having only been asked to determine the question of jurisdiction, the Tribunal did not consider the validity of the Appellant’s position or the Minister’s defence of its decision.
There is no doubt that in interpreting its own statute, the Minister has made a decision which is reviewable. The question is whether the decision is reviewable by this Tribunal.
The Tribunal is a creature of statute, which means that its jurisdiction arises exclusively from statute. If there is no explicit right in the statute to review an action or decision by the Minister, the Tribunal cannot do so on its own accord.
There are two types of appeals that may be considered by the Tribunal with respect to an individual’s driver’s licence. Section 50 of the Highway Traffic Act provides in part, as follows:
50.(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
(2) The tribunal may confirm, modify or set aside the decision of the Minister or Registrar.
The legislature has clearly differentiated between a general right of an appeal from decisions rendered under sections 17 or 47 and a more limited right of appeal from decisions rendered under s. 32(5). The latter is a right only provided by regulation. Section 25.1 of the Regulation makes clear that: “A decision made by the Minister under subclause 32(5)(b)(i) of the Act is prescribed as a kind of decision a person may appeal under section 50 of the Act.”
Section 17 of the Act deals with CVOR certificates and not individual licences. Section 47 of the Act addresses situations where the Registrar has suspended or cancelled an individual’s licence. There was no dispute between the parties that neither section 17 nor 47 apply in the present circumstances.
The only remaining issue then is whether the Minister’s decision in this case is a decision made under subsection 32(5)(b)(i), for which there is a right of appeal as prescribed by the Regulation.
Section 32(5)(b)(i) provides as follows:
(5) The Minister may require an applicant for a driver’s licence or an endorsement or a person who holds a driver’s licence to submit to the examinations that are authorized by the regulations at the times and places required by the Minister and to meet other prescribed requirements, and the Minister may,
(b) in the case of a person who holds a driver’s licence,
(i) impose the conditions authorized by the regulations, remove any conditions or endorsements or change the class or classes of driver’s licence held by the person, in accordance with the results of the examinations and other prescribed requirements
Here, having received confirmation of the Appellant’s medical clearance, the Minister issued to the Appellant the licence to which he was entitled to under the Act and the Regulation, given the time that has elapsed. The Tribunal does not accept that in issuing a G1 driver’s licence to the Appellant, the Minister was imposing or removing conditions, as contemplated in section 32(5)(b)(i). The Minister has simply interpreted and applied the Act and the Regulation to the circumstances at hand.
How the Minister chooses to treat the Appellant’s time as a G2 licensee prior to his medical suspension is not an action or decision that is appealable to this Tribunal.
While an appeal before the Tribunal is not available to the Appellant, he is free to pursue other avenues of review should he feel aggrieved by the Minister’s decision.
DECISION
- The Tribunal therefore finds it has no jurisdiction to hear the Appellant’s appeal. The appeal is therefore a nullity. The Tribunal shall close this file.
LICENCE APPEAL TRIBUNAL
Luisa Ritacca, Member
Released: May 3, 2017