S.H. v. Minister of Transportation, 2019 CanLII 63335

Date: 2019-06-21

Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8

Between:

S.H.

Appellant

and

Minister of Transportation

Respondent

REASONS FOR DECISION

Panel: Erica Weinberg, M.D. Member

Appearances:

For the Appellant: Douglas Morton, Paralegal

For the Respondent: Patrick Moore, Counsel

Kyle Biel, Agent

Heard by Teleconference: April 25, 2019

A.

OVERVIEW

1The appellant’s driver’s licence was suspended indefinitely in 2008 due to having three impaired driving convictions and a fail or refuse to provide a breath or blood sample. The appellant applied to the Registrar of Motor Vehicles (the “Registrar”) for a reduction of his lifetime driver’s licence suspension. On June 25, 2018, his driver’s licence was reinstated, but subject to a permanent ignition interlock condition.

2On March 22, 2019, the appellant filed an appeal to the Licence Appeal Tribunal (the “Tribunal”), requesting that the permanent ignition interlock condition be removed.

3A case conference was held on April 25, 2019. The Tribunal sent the parties a Notice of Intent to Dismiss dated April 29, 2019, informing the parties that the Tribunal intends to dismiss the appeal without a hearing pursuant to s. 4.6 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 and Rule 3.4 of the Tribunal’s 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 the Tribunal’s jurisdiction.

4The parties were invited to make written submissions to the Tribunal on whether the Tribunal has jurisdiction to hear the appeal.

5Submissions were received by both parties by the dates specified in the Tribunal’s Notice of Intent to Dismiss.

JURISDICTION OF THE TRIBUNAL

6The Tribunal’s jurisdiction comes primarily from s. 50 of the Highway Traffic Act, R.S.O. 1990 c. H.8 (the “HTA”):

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.

7Section 25.1 of O. Reg 340/94 states 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.

8Section 32(5) of the HTA authorizes the Minister of Transportation to take various action in relation to a person who holds or applies for a driver’s licence:

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.

9The appellant submits that upon reading ss. 50 and 32(5) of HTA, the first impression is that the applicant may bring an appeal of any condition imposed upon him by the Minister, Act or Regulations.

10Furthermore, the appellant submits that s. 19.2(1)(b) of Regulation 287/08 makes reference to the authority of the Ministry under s. 32(5) of the HTA.

11The appellant also submits that as a principle of statutory interpretation, provisions grouped together under a heading are presumed to be related to each other in some particular way.

12In making this submission the appellant makes an argument of statutory interpretation citing the Supreme Court of Canada’s decision in British Columbia Human Rights Tribunal v. Schrenk, 2017 SCC 62. The appellant also argues that in R. v. Wookey, 2016 ONCA 611, the Ontario Court of Appeal held that ordinary meaning “refers to the reader’s first impression meaning, the understanding that spontaneously comes to mind when words are read in their immediate context”.

13Read in its entirety, the appellant argues that the legislation permits him to bring an appeal of any condition imposed upon him by the Minister, the Act or its Regulations.

14The respondent submits that the Tribunal does not have jurisdiction to hear the appeal.

ISSUE AND RESULT

15The issue is whether an appeal of the imposition of a permanent ignition interlock condition is within the Tribunal’s jurisdiction.

16I find that the Tribunal does not have the jurisdiction to consider this appeal. The decision in June 2018 to reinstate the appellant’s driver’s licence was made by the Registrar under s. 41.1(2) of the HTA, and the permanent ignition interlock condition was imposed by operation of law pursuant to s. 41.2(9) of the HTA, and continued by s. 19.4 of O. Reg 287/08.

ANALYSIS

17The appellant was convicted of three impaired driving convictions (driving while ability impaired March 13, 2002; driving while ability impaired May 1, 2008; driving with more than 80 mg of alcohol in blood May 1, 2008), as well as a fail or refuse to provide breath or blood sample (May 1, 2008). Pursuant to s. 41(1)(h) of the HTA, his driver’s licence was suspended indefinitely in June 2008. Neither party contests these facts.

18In early 2018, the appellant applied to reduce his indefinite driver’s licence suspension to 10 years. At the time, s. 41.1(2) of the HTA authorized the Registrar to reduce an indefinite suspension to 10 years (to be discussed further below) provided that certain prerequisites were met.

19These prerequisites included that the appellant had successfully completed any examinations that he is required to complete.

20Furthermore, in June 2018, a driver’s licence that had been suspended under s. 41 and then reinstated was subject to s. 41.2(9) of the HTA, which states as follows:

If, in accordance with subsection 41.1(2), the Registrar reduces an indefinite licence suspension…and reinstates a person’s driver’s licence, it is a permanent condition of the person’s driver’s licence that he or she is prohibited from driving any motor vehicle that is not equipped with an approved ignition interlock device. [Emphasis added]

21When the appellant’s licence was reinstated in June 2018, imposing the permanent condition that the appellant could only drive a vehicle that has an approved ignition interlock device was not a discretionary decision made by the Registrar, but rather a condition imposed automatically by operation of s. 41.2(9). This permanent condition applies to all drivers who, as in the case of the appellant, have had multiple convictions related to impaired driving and had their indefinite licence suspension reduced by the Registrar.

22On July 1, 2018, s. 41.2 of the Act was repealed when certain provisions of the Transportation Statute Law Amendment Act (Making Ontario’s Roads Safer), 2015, S.O. 2015, c. 14 were proclaimed into force. However, s. 19.4 of O. Reg. 287/08 addresses ignition interlock conditions imposed under s. 41.2 prior to its repeal. According to s. 19.4(1), any interlock condition that was imposed under the former s. 41.2 is replaced with ignition interlock conditions under s. 11 of O. Reg 287/08.

23The appellant appears to argue that the permanent interlock condition was imposed under s. 32(5)(b)(i) of the HTA. The appellant also argues that the Tribunal has jurisdiction to hear an appeal of any condition imposed upon him by the Minister, Act or Regulations.

24I disagree with the appellant that the Tribunal has jurisdiction to hear an appeal of any condition imposed by the Minister, Act or Regulations. Sections 50(1) of the HTA and 25.1 of O. Reg 340/94 are clear that only decisions made by the Registrar under ss. 17 or 47 of the HTA or decisions made by the Minister under s. 32(5)(b)(i) can be appealed to the Tribunal.

25The respondent submits that the Tribunal should follow the reasoning that it applied in BT v. Registrar of Motor Vehicles, 2017 CanLII 50045. That case dealt with the same legal question as this case. Vice Chair Theoharis found that an ignition interlock condition was imposed by operation of law, not by a discretionary decision made by the Registrar:

The permanent condition that the appellant can only drive a vehicle that has an approved ignition interlock device was not the Registrar's decision, but a condition imposed by operation of s. 41.2(9).

26In her decision the Vice Chair ruled that the Tribunal did not have jurisdiction, since it did not have "authority to remove the condition imposed by s. 41.2."

27I do not see why these same principles should not apply in this instance. The only difference between the two matters is the legislative and regulatory amendments from 2018.

28I disagree with the appellant that the permanent interlock condition was imposed by the Minister under s. 32(5)(b)(i). It was imposed automatically by operation of law, having originally been imposed by s. 41.2(9) of the HTA, and now continued by 19.4 of s. 19.4 of O. Reg. 287/08.

29I find the Tribunal does not have jurisdiction to remove the interlock condition imposed by s. 41.2 (in effect on June 25, 2018) and continued by s. 19.4 of O. Reg 287/08.

CONCLUSION

30The Tribunal is without jurisdiction to hear this appeal.