J.V. v. Minister of Transportation, 2019 CanLII 110099

Date: 2019-11-14

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 downgrade a driver’s licence under subsection 32(5)(b)(ii) of the Act

Between:

J.V.

Appellant

-and-

Minister of Transportation

Respondent

DECISION and ORDER

Adjudicator: Jeanie Theoharis, Vice-Chair

Appearances

For the Appellant: Ray Daniels, Representative

For the Respondent: Kyle M. Biel, Agent

Heard by: Written Submissions

OVERVIEW

1The appellant appeals a decision of the Minister of Transportation (the “Minister” or “respondent”) made under s. 32 (5)(b)(ii) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) to downgrade his driver’s licence from a Class DZ licence to a Class GZ licence.

2The respondent brought a motion requesting the Tribunal dismiss the appeal without a hearing under Rule 3.4 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017; amended February 7, 2019) submitting that the appeal relates to a matter outside the Tribunal’s jurisdiction.

3A case conference was conducted April 16, 2019 and the parties were instructed to provide written submissions regarding the respondent’s Motion. The appellant raised a constitutional issue in its reply submissions. In particular the appellant indicates that if the Tribunal dismisses the appeal without a hearing based on a determination that the Tribunal lacks jurisdiction to hear appeals made under s. 32(5)(b)(ii) of the Act, then the Tribunal is in effect violating the appellant’s rights under s. 15(1) of Canadian Charter of Rights and Freedoms (the “Charter”).

4This decision relates both to the Tribunal’s jurisdiction to hear the appellant’s appeal and the constitutional issue raised in the appellant’s written submissions.

5After reviewing the submissions, I conclude that the Tribunal lacks jurisdiction to consider this appeal and the constitutional issue is without merit.

ISSUE AND RESULT:

6The issues are:

(i) whether the Tribunal has jurisdiction to hear an appeal of the Minister’s decision under s. 32(5)(b)(ii) of the Act to downgrade the appellant’s licence on the basis that the appellant does not meet the mandatory vision standards set out in Ontario Regulation 340/94 subsection 18(3) for a commercial driver’s licence; and

(ii) if the Tribunal does not have jurisdiction to hear the appellant’s appeal, whether the appellant’s s. 15(1) Charter rights have been infringed.

7I find the Tribunal does not have jurisdiction to hear an appeal related to the Minister’s decision that the appellant does not meet the eligibility of the Class G and Class D vision waiver program due to his suspended driver’s licence under subsection 32(5)(b)(ii) of the Act. The decision to downgrade the appellant’s driver’s licence under section 32(5)(b)(ii) of the Act is not a decision that is appealable to the Tribunal.

8The appellant’s s. 15(1) Charter rights have not been violated by the Tribunal’s lack of jurisdiction to hear these types of appeals and the Tribunal lacks jurisdiction to order the requested remedy.

LAW AND ANALYSIS:

(i) Tribunal’s Jurisdiction

9The Tribunal has jurisdiction to hear appeals under section 50(1) of the Act of decisions made by the Minister of Transportation under section 32(5) of the Act for which there is a right of appeal pursuant to Ontario Regulation 340/94.

10Under section 32(5) of the Act:

The Minister may require … 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, or

(ii) where the person fails to submit to or to successfully complete the examinations or fails to meet the other prescribed requirements, impose the conditions authorized by the regulations, remove any endorsements, suspend or cancel the driver’s licence held by the person or change the class or classes of driver’s licence held by the person.

11The right to appeal a Minister’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).

12Section 50(1) of the Act indicates that the Tribunal may hear appeals from decisions made under s. 32(5) only where a right to appeal is set out in the regulations made pursuant to s. 32(14)(n) of the Act.

13Ontario Regulation 340/94 prescribes the kinds of decisions which may be appealed to the Tribunal. Ontario Regulation 340/94 section 25.1 states 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 my appeal under section 50 of the Act.” (emphasis added)

14There is no regulatory provision that creates a similar right to appeal decisions made by the Minister of Transportation under subclause 32(5)(b)(ii). A decision made the Minister of Transportation under subclause 32(5)(b)(ii) is therefore not a decision that a person may appeal to the Tribunal.

15The Tribunal may only hold hearings and perform duties that are expressly assigned to it under an Act or regulation.¹ Absent express regulatory authority permitting appeals under sub-clause 32(5)(b)(ii), the legislation is clear that the Tribunal does not have jurisdiction to hear appeals under this subclause.

16The appellant’s Class D driver’s licence was initially suspended for failing to meet the vision requirements. Subsequently, the appellant applied for a waiver of the vision standards for a Class G licence under section 21.2 of the Ontario Regulation 340/94. By letter dated January 23, 2019 the applicant’s application for a waiver of the vision standards for a Class G licence was approved and he was granted a waiver of the vision standards. However, the appellant’s driver’s licence remained downgraded to Class G under sub-clause 32(5)(b)(ii) of the Act for not meeting the vision requirements for Class D.

17The Minister of Transportation’s decision that the applicant did not meet the prescribed requirements are within sub-clause 32(5)(b)(ii) of the Act and is not appealable to the Tribunal.

(ii) Constitutional Issue

18The appellant submits that by finding that a Minister’s decision under s. 32(5)(b)(ii) is not appealable to the Tribunal, and therefore the Tribunal lacks jurisdiction to hear the appellant’s appeal, that the Tribunal is in effect violating s. 15(1) of the appellant’s Charter rights. The appellant submits that the inability for the appellant to appeal this matter to the Tribunal creates a Constitutional issue.

19Section 15(1) of the Charter states:

15 (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.

20Section 24(1) of the Charter states:

24 (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

21The respondent argues that the appellant’s constitutional challenge has no merit because the Charter does not constitute an independent source of jurisdiction for the Tribunal, and as the appellant has not established that s. 50 of the Act itself infringes his Charter rights, the Tribunal has no jurisdiction to hear his appeal.

22I found that the Tribunal does not have jurisdiction to address appeals under s. 32(5)(b)(ii).

23The case of R. v. Conway, 2010 SCC 22 established that an administrative tribunal is a “court of competent jurisdiction” under s. 24(1) of the Charter if it has jurisdiction to decide questions of law, and that the tribunal must also have the jurisdiction grant the particular remedy sought given its statutory scheme. Given that the Tribunal does not have jurisdiction to hear appeals of decisions made under s. 32(5)(b)(ii) of the Act, it does not have jurisdiction to grant the remedy sought, namely a hearing on appeal of a decision under s. 32(5)(b)(ii) of the Act.

24As such, the Tribunal does not have jurisdiction to address the appellant’s Charter challenge. I would also note that the appellant has not identified the basis on which he feels that s. 50 of the Act is discriminatory.

CONCLUSION:

25The Tribunal does not have jurisdiction to hear the appellant’s appeal nor the appellant’s Charter challenge.

26The appeal is dismissed.

Footnotes

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