Licence Appeal Tribunal
Appeal under Section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a decision under to Section 48.3 of that Act - to Suspend a Licence
Between:
J.G.W.
Appellant
-and-
Registrar of Motor Vehicles
Respondent
MOTION DECISION AND ORDER
ADJUDICATOR: Laurie Sanford, Vice Chair
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Patrick Moore, Counsel Kyle Biel, Agent
Heard in Toronto: January 25, 2018
DECISION AND ORDER
Overview
1The Registrar of Motor Vehicles (the “Registrar”) brings this motion to dismiss the appeal of J.G.W. from the suspension of his driver’s licence. The Registrar asserts that the Tribunal lacks the jurisdiction to hear the appeal. Section 50.1 of the Highway Traffic Act (the “Act”) sets out the possible grounds for appeal. In the Registrar’s submission, the only basis for an appeal in this case would be if J.G.W. is not the same person whose licence was suspended and the person who provided a breath sample. The Registrar submits that because J.G.W. has acknowledged that he is the person who both provided the breath sample and whose licence was suspended, the only applicable ground of appeal does not apply in his case. Alternatively, the Registrar moves to dismiss this appeal on the grounds that it is frivolous.
2On November 11, 2017, J.G.W. surrendered his licence for a period of 90 days pursuant to a demand made under section 48.3 of the Act. In a Notice to the Registrar, an Ontario Provincial Police Officer alleged that J.G.W. provided a breath sample showing a concentration of alcohol in his blood of over 80 milligrams in 100 millilitres of blood, meaning that J.G.W. was driving while impaired. J.G.W. appealed that decision under section 50.1 of the Act.
3For the reasons set out below, I find that the Tribunal does not have the jurisdiction to hear this appeal. J.G.W. is asserting a basis for his appeal that does not exist in the Act. The Tribunal does not have jurisdiction to hear this appeal on any ground other than the ones expressly set out in the Act. Accordingly, I direct that the appeal be dismissed. It is not necessary to consider the argument that the appeal is frivolous.
Agreed Facts
4The Registrar proposes, only for the purposes of this motion, to accept J.G.W.’s various written statements as fact. J.G.W. agrees with this approach. The written statements may be summarised as follows.
5On the night of November 10, 2017, J.G.W. visited two licenced establishments. On driving away from the second establishment, an officer or officers of the Ontario Provincial Police (“OPP”) began to follow J.G.W.’s car, unbeknownst to him. J.G.W. asserts that the OPP followed him not because of anything he was doing but because they brought up his record from five years ago on their in-car computers. The OPP officers became prejudiced against him on the basis of that record, he believes.
6The OPP pulled J.G.W. over, despite J.G.W.’s contention that he was not driving in an unacceptable fashion, and proceeded to treat him aggressively, wounding him on the hand and damaging his car in the process of the stop.
7In the early morning of November 11, 2017, J.G.W. was taken to a police station. He believes that he was in a state of shock and suffering from blood loss from the wound to his hand, which may have affected his memory of that night’s events and which may have altered his usual behaviour. He refused to provide a breath sample until he believed he had reached an agreement about its use, some two hours after he was stopped. When J.G.W. provided the breath sample his blood alcohol level was 0.12 milligrams of alcohol in per 100 millilitres of blood, in excess of the legal limit for driving of 0.08 milligrams of alcohol per 100 millilitres of blood. His driver’s licence was suspended for a period of 90 days.
8J.G.W. appeals his driver’s licence suspension on the grounds of mistaken identity. In his Notice of Appeal, he asserted that he is not the same man he was five years ago and therefore the OPP’s original decision to follow him was based on a false premise. In a subsequent written submission, J.G.W. acknowledged that he was the same man who both provided a breath sample and whose licence was suspended.
9Beyond the specifics of this appeal, J.G.W. is concerned about a range of issues concerning the OPP conduct towards him, the mechanism of suspending drivers’ licences under the Act and the narrow grounds of appeal.
Law
10Section 50.1 of the Act provides that a person may appeal a suspension of a driver’s licence where the suspension is as a result of having a blood alcohol level above the legal limit. However, the appeal may be brought only on limited grounds and the remedy of setting aside the suspension may only be ordered on those same grounds. Having reviewed the legislation, I find that the only ground that applies in this case is if the person whose licence was suspended was not the same person who provided the breath sample.
11It is important to note that section 50.1 of the Act not only limits a person’s right to a remedy but limits the right to appeal to the same narrow criteria. Thus, if the person whose licence was suspended is the same person who provided the breath sample, not only does that person not have a right to the remedy of having the suspension set aside, the person has no right of appeal.
12The Registrar submits that because J.G.W. acknowledges that he is the same person who both gave the breath sample and whose licence was suspended, he has no right of appeal and the Tribunal has no jurisdiction to hear the matter.
Decision
13I agree that in this case, the Tribunal lacks the jurisdiction to hear J.G.W.’s appeal. J.G.W. makes a novel argument in basing his case for mistaken identity on the idea that he is not the same man he was five years ago. However, that ground for appeal is not available under the Act. J.G.W. also acknowledges that he was the same man who both provided the breath sample and whose licence was suspended. Each of these statements, taken alone, is inconsistent with the grounds of appeal set out in the Act. Taken together, the statements lead me to conclude that J.G.W. is asserting a basis for his appeal that lies outside the Act. 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. The wider concerns raised by J.G.W. extend beyond the provisions of sections 48.3 and 50.1 of the Act and therefore cannot be addressed by the Tribunal. In light of this conclusion, it is not necessary to consider the alternative argument that the appeal is frivolous.
Order
14I direct that this appeal be dismissed without a hearing. The date scheduled for the hearing is vacated and this concludes the matter.
LICENCE APPEAL TRIBUNAL
_______________________
Laurie Sanford, Vice-Chair
Released: February 14, 2018