B.W. v. Minister of Transportation, 2018 CanLII 128756

B.W. v. Minister of Transportation

Date: 2018-09-24

Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8, from a decision of the Minister of Transportation to change the class of a driver’s licence under subparagraph 32(5)(b)(ii) of the Act.

Between:

B.W. Appellant

-and-

Minister of Transportation Respondent

DECISION and ORDER

Adjudicator: Stephen Scharbach, Member

Appearances:

For the Appellant: Paul Mennie, Paralegal For the Respondent: Kyle Biel, Agent

Heard by: Written Submissions

OVERVIEW

1The appellant seeks to appeal a decision of the Ministry of Transportation (the “Registrar”) to downgrade his commercial Class “BZ” driver’s licence to a Class “GM” driver’s licence,

2The Registrar’s decision was made under the authority of s.32(5)(b)(ii) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“Act”) and was based on a report that indicated that the appellant no longer met the National Medical Standards for a commercial licence due to a right visual field deficit.

3Rule 3.4(b) of the Tribunal’s Rules of Practice and Procedure, Version 1 (April 1, 2016) provides that the Tribunal may dismiss an appeal without a hearing if the appeal relates to matters that are outside its jurisdiction.

4Rule 3.5 states that before dismissing an appeal under this Rule, the Tribunal shall give the parties notice of its intention to dismiss, provide the reasons for its intended decision to dismiss, and inform the parties of their right to make written submissions to the Tribunal within the time limits set out in the notice.

5In this case on June 28, 2018 the Tribunal issued a Notice of Intention to Dismiss on the basis that the Tribunal appeared to lack jurisdiction to consider the appellant’s intended appeal.

6The parties were invited to provide written submissions and the Tribunal received written submissions from the appellant on July 19, 2018 and from the Registrar on August 3, 2018.

7After reviewing those submissions, the Tribunal concludes that it lacks jurisdiction to consider this appeal.

DECISION UNDER APPEAL

8The appellant seeks to appeal the Registrar’s decision to downgrade his commercial Class “BZ” driver’s licence to a Class “GM” driver’s licence. That decision was based on medical information that indicated that the appellant no longer met the mandatory vision standards set out in s. 18(3) of Ontario Regulation 340/94 due to a right visual field deficit.

9The Registrar’s decision was made under the authority of s.32(5)(b)(ii) of the Highway Traffic Act which states that the Minister of Transportation may require the holder of a driver’s licence to submit to examinations and to meet other prescribed requirements and may suspend, cancel or change the class of licence where the licence holder no longer meets the prescribed requirements.

10The right to appeal a Registrar’s decision made under s. 32(5) of the Act is set out in s. 50(1) of the Act which states:

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 s.32(14)(n) … may appeal the decision to the Tribunal (emphasis added).

11Section 50(1) makes it clear that the Tribunal may entertain appeals from decisions made under s.32(5) only where a right to appeal is set out in regulations made pursuant to s.32(14)(n) of the Act.

12Section 32(14)(n) of the Act provides that regulations may be made which prescribe the kinds of decisions under subsection 32(5) which a person who holds a driver’s licence may appeal under section 50.

13Section 25.1 of Ontario Regulation 340/94 has been made under s. 32(14)(n). Section 25.1 of that regulation states.

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.

14There is no regulatory provision that creates a similar right to appeal decisions

15In summary, the Act makes it clear that a right to appeal a decision under s. 32(5) only exists if a regulation has been made that expressly permits such an appeal.

16A regulation has been made that permits appeals to this Tribunal from decisions made under s. 32(5)(b)(i), but there is no regulatory provision permitting appeals from decisions made under s. 32(5)(b)(ii). The Tribunal may only hold hearings and perform duties that are expressly assigned to it under an Act or regulation¹.

17Since there is no regulatory provision permitting appeals from decisions made under s. 32(5)(b)(ii) of the Act, the Tribunal lacks jurisdiction to consider the appellant’s appeal in this case.

DECISION

18The appeal is dismissed.

Footnotes

1. 1Licence Appeal Tribunal Act, S.O. 1999, Chapter 12, Schedule G, s. 3(1).