Appeal under Section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a decision under Section 48.3 of that Act – to Suspend a Licence
Between:
J.G.W.
Appellant
and
Registrar of Motor Vehicles
Respondent
RECONSIDERATION DECISION
Before: Jonathan Batty, Associate Chair
Written Submissions By:
For the Appellant: J.G.W.
For the Respondent: Kyle M. Biel, Agent
Overview
1On November 11, 2017, J.G.W.’s driver’s licence was suspended for 90 days under s. 48.3 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) after he provided a breath sample to a police officer which showed a concentration of alcohol in his blood of over 80 milligrams in 100 millilitres of blood. J.G.W. appealed the suspension of his driver’s licence to the Licence Appeal Tribunal (the “Tribunal”) under s. 50.1 of the HTA.
2The Registrar of Motor Vehicles (the “Registrar”), who was the respondent to J.G.W.’s appeal, brought a preliminary motion for the Tribunal to dismiss J.G.W.’s appeal on the basis that the Tribunal lacked jurisdiction, or alternatively on the basis that it was frivolous. After hearing oral submissions from both parties on the Registrar’s motion, the Tribunal granted the motion and dismissed the appeal without a hearing on the merits for the sole reason the Tribunal lacked jurisdiction.
3J.G.W. requests reconsideration of the Tribunal’s motion decision on the grounds listed in Rule 18.2 (a) and (d) of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) (the “Rules”):
(a) The Tribunal acted outside its jurisdiction or violated the Rules of natural justice or procedural fairness;
(d) There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
4In addition to those grounds for reconsideration, the parties were provided with an opportunity to make submissions on whether the Tribunal made a significant error of law in determining that the Tribunal lacked jurisdiction, and if so, whether the appeal ought to have been dismissed in any event as frivolous.
5For the reasons that follow, I dismiss J.G.W.’s request for reconsideration.
Background
6Under s. 50.1(2)(a) of the HTA, there are only two grounds on which a person may appeal a suspension of their driver’s licence under s. 48.3. These are:
i. that the person whose licence was suspended is not the same individual to whom a demand was made under section 254 or 256 of the Criminal Code (Canada), or
ii. that the person failed or refused to comply with a demand made under section 254 of the Criminal Code (Canada) because he or she was unable to do so for a medical reason;
7The grounds for appeal are limited to either mistaken identity or refusal to comply based on medical reasons. These are narrow grounds for appeal. As such, it appears the legislative intent is that these appeals should be argued in a short and efficient manner without being delayed or bifurcated by preliminary motions as such matters could be efficiently dealt with at the outset of a hearing on its merits. This, however, is not how this matter proceeded as the Registrar wished to dispense of this matter in a preliminary manner without the matter being dealt with at a hearing on the merits. As a result, the Tribunal received a reconsideration request which has necessitated requesting further submissions from the parties to ensure all relevant issues for a reconsideration were addressed.
8J.G.W. appealed his suspension on the ground in s. 50.1(2)(a)(i). However, it soon became evident that, in fact, this was not a case of mistaken identity but that he thought he could use this provision to argue that he was now of better character than he had been in the past. He based this argument on the assertion that he was only in a database the police was using because of his past misconduct. This was not a novel argument. Instead, it was an argument having no legal merit in this context. J.G.W.’s interpretation of this provision contorts it beyond its clear and plain meaning and should not be further entertained.
9J.G.W. did not argue that he was not the person who provided the breath sample that led to the suspension. He admitted that he did, in fact, provide the breath sample. He said the police stopped him based on outdated information from their database about the person who he was five years ago. These assertions are wholly irrelevant. The simple question that s. 50.1(2)(a)(i) requires to be asked and answered is whether the person who was required to provide a breath sample is the same person whose licence is suspended. One can easily imagine mistakes occurring when people with similar names are confused. The reason for having such a provision is to allow such administrative mix-ups to be corrected to prevent wrongfully identified drivers losing their licences.
10In its motion to dismiss J.G.W.’s appeal without a hearing, the Registrar argued that the Tribunal lacked jurisdiction to hear an appeal under s. 50.1(2)(a)(i) of the HTA when, prior to a hearing on the merits of an appeal, someone states that they were the person to whom a demand was made under s. 254 of the Criminal Code. The Registrar relied on Ontario (Registrar of Motor Vehicles) v. Huntington, Court File No. 276/05, [2006] O.J. No. 4845, in which the Divisional Court found that the Tribunal lacked jurisdiction to dispose of an appeal on a ground other than one of those provided in s. 50.1(2). Alternatively, the Registrar argued that the appeal should be dismissed as frivolous.
11The Tribunal granted the Registrar’s preliminary motion and on the basis of lack of jurisdiction dismissed the appeal without a hearing on its merit. The Tribunal’s reasons provided, in part, as follows:
The Tribunal is a creature of statute and in this case is limited by the Act as to what basis for an appeal it may consider. The only applicable ground for appeal in this case would be if J.G.W. were not the same man who both provided the breath sample and had his licence suspended. That is not the case here, as J.G.W. acknowledges.
12As the Tribunal opted to find it lacked jurisdiction, the Tribunal found it unnecessary to consider the argument that the appeal was frivolous, which would appear obvious in this case.
13As this appeal was dismissed by way of preliminary motion, J.G.W. sought reconsideration. It appears that he believes he was not provided “his day in court.”
14On reconsideration, J.G.W. makes two arguments. The first, under Rule 18.2(a), is that the Tribunal violated the rules of procedural fairness by allowing the Registrar to file his motion to dismiss after 5 p.m. on the day before the case conference. J.G.W.’s second argument, under Rule 18.2(b), is that there is new evidence that could not reasonably have been obtained earlier and would have affected the result. In that regard, J.G.W. submits that he ought to have been provided with an opportunity to obtain the information from the OPP’s in-car database, which he alleges the officers used to mistake his identity and entrap him. J.G.W. notes that he is not sure that this evidence “would” affect the result, but submits that it “could.”
15On February 28, 2018, the Tribunal provided both parties with an opportunity to make submissions on this request for reconsideration. Specifically, J.G.W. was provided an opportunity to make submissions on the following:
how any new evidence from the OPP in-car database would have affected the result;
whether the Tribunal made a significant error of law in determining that the Tribunal lacked jurisdiction to hear the appellant’s appeal; and
if the Tribunal made a significant error of law, whether the appeal ought to have been dismissed in any event as frivolous.
16J.G.W. made his additional submissions a week after the deadline imposed in the Tribunal’s request for submissions. The Registrar objects to the late submissions. I have considered J.G.W.’s submissions, despite the late filing, as I find this to be an appropriate way to “ensure the efficient, proportional, and timely resolution of the merits” of this request for reconsideration: Rule 3.1.
Analysis
Rule 18.2(d): Is there new evidence that could not have reasonably been obtained earlier and would have affected the result?
17J.G.W. submits that he ought to have been given an opportunity to obtain evidence from the OPP’s in-car database. I am not satisfied that this evidence would have – or could have – affected the result.
18J.G.W. points out that he feels it is unfair to dismiss his appeal without allowing him time to obtain the evidence that he describes as fundamental to his case. However, the question for determination at the motion was whether the Tribunal has jurisdiction to hear an appeal under s. 50.1(2)(a)(i) by a person who has admitted to being the individual to whom a breath demand was made, and if so whether such an appeal is frivolous. Whatever information might be contained in the in-car data would not affect the fact that J.G.W. admitted that he was the individual to whom the breath demand was made. Accordingly, the new evidence would not have affected the result and the ground for reconsideration under Rule 18.2(d) is not met.
Rule 18.2(a): Did the Tribunal violate the rules of procedural fairness?
19J.G.W. submits that he was denied procedural fairness because the Registrar filed its motion to dismiss after 5:00 p.m. on the day before the case conference, and J.G.W. was not advised of his right to dispute the late submission. He submits that this is a double standard, as he was advised that he missed the disclosure deadline for the hearing, and therefore required permission of the adjudicator to rely on documents that were disclosed late.
20I am not satisfied that there has been any breach of procedural fairness.
21Rule 15.2 requires a party bringing a motion to serve its motion materials at least 10 days before the motion will be heard. Like all of the Tribunal’s rules, this requirement may be varied by order.
22At the case conference that was held on January 19, 2018, the motion hearing was scheduled for January 25, 2018. The Tribunal’s Case Conference Order states that the “parties agreed that they would disclose any documents or things on which they intend to rely at the motion hearing by January 23, 2018.” If J.G.W. believed he needed more time between the disclosure of the Registrar’s motion materials and the hearing, he had the opportunity to raise that concern at the case conference. I am not satisfied that the timing of disclosure deprived J.G.W. of the ability to respond to the motion.
Did the Tribunal make a significant error of law such that the Tribunal would likely have reached a different decision had the error not been made?
23Although this issue was not raised by J.G.W. in his request for reconsideration, the parties were given an opportunity to make submissions on whether the Tribunal made a significant error of law in determining that the Tribunal lacked jurisdiction to hear the appellant’s appeal. They were also invited to make submissions on whether the appeal should nevertheless be dismissed without a hearing on the basis that it is frivolous.
24J.G.W. states in his additional submissions that he does not know if the Tribunal made a significant error of law, as he is not a lawyer.
25The Registrar submits that the Tribunal made no error in law. The Registrar submits that J.G.W. had no appeal right under s. 50.1(2)(a)(i) of the HTA, having admitted that he is the same person who provided the breath sample.
26I am satisfied that the Tribunal made an error of law in determining that the Tribunal lacked jurisdiction to hear J.G.W.’s appeal; however, a different decision would not have been reached as in any event the grounds of appeal were frivolous. Deciding this matter on jurisdictional grounds needlessly complicated the decision. In cases such as these, the Tribunal needs to provide the parties before it clear interpretations as to how the law applies to a particular situation.
27Under Rule 3.4, the Tribunal may dismiss a proceeding without a hearing for several reasons, including if the “appeal relates to matters that are outside the Tribunal’s jurisdiction” or if the “appeal is frivolous, vexatious, or commenced in bad faith”. The Tribunal is required to provide the parties with an opportunity to make written submissions before dismissing an appeal without a hearing. In this case, that requirement was met by allowing the parties to make both written and oral submissions on the Registrar’s motion.
28The Tribunal has jurisdiction to hear an appeal under s. 50.1 of the HTA of a driver’s licence suspension under s. 48.3 of the HTA relying on one of two grounds. J.G.W. relied on one of those grounds of appeal using a twisted interpretation of the statutory language.
29The Registrar relied on the case of Huntington, in which the Divisional Court set aside the Tribunal’s decision to allow an appeal on a ground other than the ones set out in s. 50.1 of the HTA. It is clear from the wording of s. 50.1 that the “only grounds on which the Tribunal may order that the suspension be set aside” are those set out in that section. The Tribunal cannot set aside a suspension on any other ground. However, the Tribunal is not deprived of jurisdiction simply because the facts do not support the ground of appeal relied on. J.G.W. appealed his suspension on one of the grounds that the Tribunal has jurisdiction to consider. Therefore, despite the lack of merit to his argument, the Tribunal had jurisdiction to hear it.
30In this case, the Registrar argued alternatively before the Tribunal that the appeal should be dismissed without a hearing because it is frivolous. In my view, the appeal should have been dismissed on this basis. As J.G.W. admitted that he was the individual to whom the breath demand was made, he could not possibly have succeeded to establish his ground of appeal. As stated above, the ground of appeal under s. 50.1(2)(a)(i) is that “that the person whose licence was suspended is not the same individual to whom a demand was made under section 254 or 256 of the Criminal Code (Canada).” In light of J.G.W.’s admission, this ground of appeal must fail. The appeal should therefore have been dismissed without a hearing on the ground that it was frivolous, not on the grounds of lack of jurisdiction.
ORDER
31Upon consideration of the submissions of the parties, I dismiss J.G.W.’s request for reconsideration.
Date of Issue: December 6, 2018
Jonathan Batty, Associate Chair