Date: 2019-02-25

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:

N.F.

Appellant

and

Registrar of Motor Vehicles

Respondent

ORDER

Panel: Erica Weinberg, M.D., Member Avril A. Farlam, Vice-Chair

Apparences:

For the Appellant: N.F., Self-represented For the Respondent: Kyle Biel, Agent

Heard by teleconference: February 20, 2019

REASONS FOR DECISION AND ORDER

Overview

1A teleconference hearing was held on February 20, 2019 to consider the appellant’s appeal under section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) from the January 4, 2019 suspension of her driver’s licence for 90 days under section 48.3 of the HTA for refusing to provide a breath sample demanded under s. 254 and/or s. 256 of the Criminal Code (Canada).

2The appellant appealed on the basis that she failed or refused to give the breath sample because she was unable to do so for medical reasons.

ISSUE

3The issue in this appeal is whether the appellant failed or refused to comply with a demand for a breath sample because she was unable to do so for a medical reason as set out in subsection 50.1 (2) (b) of the HTA.

PRELIMINARY ISSUE

4The Tribunal made both parties aware at the commencement of the hearing that it appears that s. 254 and s. 256 of the Criminal Code (Canada) were repealed in December, 2018 and therefore s. 254 and s. 256 of the Criminal Code (Canada) were no longer in effect on January 4, 2019 when the appellant refused to provide a breath sample as demanded. It appears that s. 48.3 of the HTA was not amended to provide any other legislative basis for the breath sample demand. The Tribunal requested that both parties provide submissions as to the legal effect of this legislative change on this appeal.

5The appellant requested an adjournment of the hearing to obtain legal advice and to prepare oral submissions. She stated that it would be difficult for her to do written submissions. The respondent’s agent indicated that he would prefer to do written submissions. Given that the appellant is self-represented and may find it difficult to make written submissions, the Tribunal accepted the appellant’s suggestion that oral submissions would be more appropriate in this particular case.

6Respondent’s agent suggested that following the oral submissions on this legal issue but on the same date, the hearing continue and the evidence of the witnesses be heard so as not to put the parties and the witnesses to the inconvenience of attending the hearing on a third date. The appellant did not oppose this request. Tribunal accepted this suggestion from the respondent’s agent.

7Therefore the hearing is adjourned to March 5, 2019 at 2:00 p.m. to be heard by teleconference.

8At the above noted date and time, parties are instructed to call the following number:

Toll-free dial-in number: 1 866-500-5845

Local dial-in number: 416-212-8014

Conference ID: 5968744

9If the appellant decides to retain a legal representative to represent her at the continuation of the hearing on March 5, 2019 at 2:00 p.m. then her legal representative will file a Declaration of Representative with the Tribunal prior to the hearing on March 5, 2019.

10When the hearing continues on March 5, 2019 at 2:00 p.m., the Tribunal will give an opportunity to the appellant, or any legal representative she retains, and an opportunity to the respondent’s agent to make oral submissions on the legal issue set out in paragraph 4 of this Order. After hearing the oral submissions made, the Tribunal will then hear the evidence of both parties.

11At the conclusion of the hearing, the Tribunal will reserve its decision regarding both the legal issue and the evidence heard and will deliver its decision in writing to the parties at a later date.