Licence Appeal Tribunal
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 the Act – to Suspend a Licence
Between:
Shawn Jean-Louis Appellant
and
Registrar of Motor Vehicles Respondent
RECONSIDERATION DECISION
ADJUDICATOR: D. Stephen Jovanovic, Associate Chair
APPEARANCES: For the Appellant: Shawn Jean-Louis, Appellant
Date of Order: March 22, 2021
1In a decision dated February 6, 2021, the Tribunal confirmed the decision of the Registrar to suspend the appellant’s driver’s licence on November 10, 2020. The appellant’s licence was suspended for 90 days under s. 48.3 of the HTA for failing to provide a breath sample demanded under s. 254 of the Criminal Code (Canada).
2On February 26, 2021, the appellant filed a Request for a Reconsideration of the decision under Rule 18 of the Tribunal’s Common Rules of Practice & Procedure. Under that Rule a Request for Reconsideration may be allowed if one or more of the following criteria are met:
- The Tribunal acted outside its jurisdiction or violated the rules of procedural fairness;
- The Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made;
- The Tribunal heard false evidence from a party or witness, which was discovered only after the hearing and likely affected the result; or
- There is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.
3The appellant submits that the Tribunal made an error of fact in not accepting the evidence of a physician who treated him after the breath demand was made.
4For the reasons that follow, the appellant’s Request for reconsideration is dismissed.
5The appellant chose not to testify at the hearing but instead relied on three documents. The first was a note dated November 11, 2020 from an emergency room physician at the Cornwall Community Hospital. The second was a letter dated December 8, 2020 from a physiotherapist regarding the injuries the appellant sustained in the motor vehicle accident on November 10, 2020. The third was a prescription for physiotherapy for post-concussion syndrome suffered in that accident.
6The note from the hospital indicated that the appellant “failed’ a breathalyzer due to his sinus fracture.
7The Tribunal heard evidence from Constable Bergeron of the Cornwall Police Department, a qualified breathalyzer technician. Constable Bergeron had attended the scene of the accident then attempted to administer the breathalyzer to the appellant. The appellant made six or seven attempts to provide a breath sample but none produced a satisfactory reading. Constable Bergeron testified as to his observations of the appellant throughout the process and formed the opinion that the appellant was only pretending to blow. He did not notice any injuries to the appellant’s nose and stated that the appellant did not complain about pain and did not say that he was unable to provide a breath sample.
8The Tribunal analyzed all of the evidence presented and noted that the appellant visited the hospital, the day following the accident, about 18 hours later. The Tribunal noted that a maxillary sinus fracture should not have impaired the appellant’s ability to inhale and exhale through his mouth. The physiotherapist’s letter and the prescription were dated about one month after the accident and were not of any assistance in determining the appellant’s ability to provide a breath sample to Constable Bergeron.
9The Tribunal ultimately concluded that the appellant had the onus to prove that his medical condition prevented him from providing a breath sample and that his medical documents were insufficient to discharge that onus. The Tribunal explained the basis for this finding.
ORDER
10The appellant has failed to establish that any of the criteria in Rule 18 have been met and accordingly the Request for a Reconsideration is dismissed.
LICENCE APPEAL TRIBUNAL
D. Stephen Jovanovic Associate Chair
Released: March 22, 2021