Date: 2019-05-30

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 refuse issuance of a commercial driver’s licence

Between:

T.P.

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

Adjudicator: Joanne E. Foot, Member

Appearances:

For the Appellant: Anthony Debly, Counsel

For the Respondent: Kyle Biel, Agent

Heard by Written Submissions: May 24, 2019

DISMISSAL ORDER AND DECISION

BACKGROUND

1The appellant is a 26-year-old man whose left eye was damaged at birth; he is only able to see shadows through this eye. The appellant has held a class G driver’s licence since approximately 2008. He applied for, and was refused, a Commercial driver’s licence on two occasions, most recently in February 2018. On this occasion his request for a Commercial driver’s licence met with refusal on the basis that his vision did not meet the minimum vision standards for a Commercial driver’s licence, specifically, that the vision in his weaker eye be no poorer than 20/100. There was no indication in the refusal letter from the Registrar of Motor Vehicles (the “Registrar”) or in any of the appeal documentation as to the section of the Highway Traffic Act, R.S.O. 1990 (the “Act”) under which this refusal was issued.

2The appellant appealed the refusal to issue a Commercial driver’s licence to this Tribunal. Upon preliminary review of the Notice of Appeal, it appeared that the Tribunal may not have jurisdiction to hear this appeal. By letter dated May 3, 2018, the Tribunal indicated its possible lack of jurisdiction to hear the matter and requested that the appellant inform the Tribunal of whether it wished to proceed. The appellant confirmed that it wished to continue with the appeal.

3On June 18, 2018, the Tribunal sent an Order and Notice of Intent to Dismiss (the “Notice”) to the parties stating that the Tribunal intended to dismiss the appeal without a hearing pursuant to section 4.6 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the "SPPA") and Rules 3.4 and 3.5 of the Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission Common Rules of Practice and Procedure, Version I (October 2, 2017) as the proceeding relates to matters outside of the Tribunal's jurisdiction. The Notice set out the reasons for the Notice and gave the parties the opportunity to make written submissions to the Tribunal as to why the appeal should not be dismissed. The parties made submissions in accordance with the Notice.

ISSUE

4The appellant submits that the Tribunal has jurisdiction to hear the appeal under Section 50(1) of the Act. Specifically, the appellant submits that this appeal is within the Tribunal’s jurisdiction on the basis that:

a. this is an appeal permitted under s. 32(5) of the Act; or

b. this is an appeal permitted under s. 32(5)(b)(i) of the Act; or

c. this is an appeal of “a kind of decision that a person may appeal under section 50 of the Act”, as contemplated by Section 25.1 of O. Reg. 340/94 (the “Regulation”) under the Act.

RESULT

5This appeal relates to the Registrar’s decision to refuse issuance of a Commercial driver’s licence to the appellant owing to his failure to meet minimum vision standards for commercial drivers. For the reasons set out below, I find that the Tribunal does not have jurisdiction under Section 50(1) of the Act to hear this appeal.

ANALYSIS

Appeal Permitted Under Section 32(5) of the Act

6The analysis necessarily begins with a consideration of Section 50(1) of the Act set out below:

50(1) 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 clause 32(14)(n) or a decision or order of the Registrar under section 17 or 47 may appeal the decision to the Tribunal.

7The appellant has not argued that his appeal falls within either Section 17 or 47 of the Act. Therefore, the focus of this analysis is on the words “a decision of the Minister made under subsection 32(5) for which there is a right of appeal pursuant to a regulation made under clause 32(14)(n)” (emphasis added). The appellant appears to submit that this wording permits an appeal from all decisions of the Minister under Section 32(5) of the Act.

8The appellant’s suggested interpretation requires that no meaning be given to the words “for which there is a right of appeal pursuant to a regulation made under clause 32(14)(n)” emphasized above. This is not in accordance with the well‑understood principle of statutory interpretation that all words in a provision under consideration be given meaning. Accordingly, I do not find merit in this approach.

9As well, the wording emphasized in paragraph [7] above differs significantly from the latter portion of Section 50(1) which confers a general right of appeal from decisions under Section 17 or 47 of the Act. It is clear that the legislators intended the right of appeal under Section 32(5) of the Act to be more limited, that is, limited to situations where a right of appeal has been established by regulation under the Act.

10Section 32(14) of the Act gives the Lieutenant Governor in Council power to make regulations relating to Section 32 of the Act about various matters including, in clause (n) “prescribing the kinds of decisions under subsection (5) which an applicant or person who holds a driver’s licence may appeal under section 50;”.

11Section 25.1 of the Regulation refers to Section 32(5) of the Act and reads as follows:

25.1 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.

The appellant did not argue that any other provision of the Regulation was relevant in this connection.

12In conclusion, I find that wording of Section 50(1) does not confer a right of appeal for all decisions made under Section 32(5) of the Act but applies only to those decisions for which a right of appeal is specified by regulation.

Appeal Permitted Under Section 32(5)(b)(i) of the Act

13The appellant submits that his appeal is an appeal of a decision made under Section 32(5)(b)(i) of the Act which, as described above, may be appealed to this Tribunal, having been specified in Section 25.1 of the Regulation. The substance of his argument is that he is a “person who holds a driver’s licence” as contemplated in Section 32(5)(b). The fact of the appellant holding a Class G driver’s licence is not in dispute.

14The appellant then refers to the power of the Minister, under Section 32(5)(b)(i), to “change the class … of the driver’s licence held by the person … ” The appellant’s conclusion is that the Minister’s refusal to grant him a Commercial driver’s licence – or change his Class G driver’s licence to a commercial class of driver’s licence – falls under Section 32(5)(b)(i) of the Act and is therefore within the jurisdiction of the Tribunal.

15The respondent counters that Registrar did not change the appellant’s class of driver’s licence in that the appellant held a Class G driver’s licence prior to his application for a Commercial driver’s licence and he continued to hold a Class G driver’s licence after he was refused issuance of a Commercial driver’s licence.

16The analysis of these conflicting positions necessitates a review of both Sections 32(5)(a) and 32(5)(b) of the Act, set out below (emphasis added):

32(5) The Minister may require an applicant for a driver’s licence or an endorsement or 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,

(a) in the case of an applicant for a driver’s licence,

(i) issue the driver’s licence of the class and subject to the conditions authorized by the regulations that, in the opinion of the Minister, are justified by the results of the examinations and other prescribed requirements, or

(ii) where the applicant fails to submit to or to successfully complete the examinations or fails to meet the other prescribed requirements, refuse to issue a driver’s licence to the applicant;

(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;

17I accept that, in a sense, an application for a Commercial driver’s licence can be thought of as a request to change the class of driver’s licence from Class G to Commercial. I have considered whether, within the scheme of the Act, this is the proper characterization of the appellant’s interaction with the Ministry of Transportation. It is agreed that the appellant applied to the Minister of Transportation to receive a Commercial driver’s licence. Had the appellant not applied for a Commercial driver’s licence, he would have had no interaction with the Ministry of Transportation or the Registrar. From a common sense perspective, it makes sense that the appellant is properly viewed as an applicant – rather than a holder of a driver’s licence - in this circumstance.

18This view is supported by Section 12(1) of the Regulation which states “An applicant for a Class A, B, C, D, E or F driver’s licence must hold … a driver’s licence issued by a province … of Canada.” (emphasis added). Clearly, one must apply for a Commercial driver’s licence; one does not request a change of class of driver’s licence. And, in fact, one must be a holder of a driver’s licence in order to be an applicant.

19As well, the wording in Section 32(5)(a)(ii) of the Act gives power to “refuse to issue a driver’s licence to the applicant”. The equivalent provision in Section 32(5)(b)(ii) of the Act does not speak of a decision to “refuse to change the class of licence” which is, in fact, the decision made in the appellant’s case.

20An examination of Section 2.1(1) of the Regulation is also instructive. It reads as follows:

2.1(1) Where the Minister changes the class of a Class A, B, C or E driver’s licence, the driver’s licence may only be changed to,

(a) a Class G driver’s licence; or

(b) a Class C, D, E or F driver’s licence, if the Minister is satisfied that the holder of the driver’s licence meets the qualifications for that class of driver’s licence.

Based on this provision, the Minister could not, for instance, “change the class” of a licence from Class C to Class A. From this I infer that it is necessary to “apply” for a Class A licence.

21Based on the plain meaning of the wording of Sections 32(5)(a) and (b) of the Act and the foregoing review of related provisions of the Act and the Regulation, each of which sheds light on the intent of the legislators, I am of the view that the appellant is properly characterized as an “applicant” within Section 32(5)(a) of the Act and not as a “holder of a driver’s licence” within Section 32(5)(b) of the Act. In consequence, I find that this appeal cannot be properly considered an appeal of a decision under Section 32(5)(b)(i) of the Act.

Appeal is “a kind of decision that a person may appeal under section 50 of the Act”, as contemplated by Section 25.1 of the Regulation

22The appellant submits that the words “a kind of decision that a person may appeal under s. 50(1) of the Act” in Section 25.1 of the Regulation (see paragraph [11] above) is not intended to be exclusionary. Said another way, the appellant is of the view that the reference to “a decision made by the Minister under subclause 32(5)(b)(i)” is an example only and not a complete list of the decisions which can be appealed under this provision.

23Again, these arguments are not persuasive. Section 25.1 of the Regulation is clearly worded to specify that decisions under Section 32(5)(b)(i) of the Act can be appealed under Section 50. It does not specify a right to appeal any other clause under Section 32(5). If the drafters of Section 25.1 of the Regulation had intended to provide a right of appeal of Section 32(5) in its entirety, they would have stated that expressly. Further, as described above in paragraphs [6] to [12], the legislation is very clear that there must be a right of appeal made under a regulation, which does not exist in this case.

24The appellant also argues that there is no specific denial of a right of appeal under Section 32(5)(a)(i) of the Act. It is not necessary for the legislature to specifically deny a right of appeal under Section 32(5)(a)(i), as the legislature did not grant a right of appeal under Section 32(5) generally, but rather only where such a right of appeal is prescribed by regulation. As the regulation only provides for an appeal of decisions under Section 32(5)(b)(i), Section 50 of the Act does not provide for an appeal of any other clause under Section 32(5). Accordingly, there is no need for the legislature to carve out an exception.

25The Tribunal is sympathetic to the circumstances of the appellant and it is with regret that we are unable to offer him assistance. However, I find that the Tribunal does not have jurisdiction to hear this appeal.

DECISION

26For the reasons set out above, the Tribunal has no jurisdiction to hear the appellant’s appeal. The appeal is dismissed and the Tribunal will close its file.