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 that Act – to Suspend a Licence
Between:
Owen Drover
Appellant
-and-
Registrar of Motor Vehicles
Respondent
MOTION DECISION
ADJUDICATOR: Laura Hodgson, Member
APPEARANCES:
For Appellant: Self-Represented
For Respondent: Adriana Nigro, Counsel Stephen Grootenboer, Representative Sanjay Kapur, Representative
Heard by Teleconference: April 1, 2021
Overview
1This is a decision on two preliminary motions brought in an appeal from an Administrative Driver License Suspension (ADLS). The registrar asks that the motion be dismissed on the basis that the Tribunal lacks jurisdiction. The appellant seeks an extension of time to file a notice of appeal.
2For the reasons set out below, the motion to dismiss is granted and the extension of time to file a notice of appeal is denied.
Background
3On February 24, 2019, the appellant was issued a 90-day licence suspension under section 48.3 of the Highway Traffic Act (HTA) for failing or refusing to provide a breath sample demanded under section 320.27 of the Criminal Code. The appellant submits that he failed or refused to give the breath sample for a medical reason, more specifically, acute mental health issues and a related condition impacting his body movements. At this same time the appellant was charged with impaired driving. According to the appellant, this charge was withdrawn in February of 2021.
4The appellant now seeks to appeal the February 2019 ADLS. In his view, his license remains suspended and will not be reinstated until he completes remedial programs associated with the suspension. While the appellant has other outstanding fines, he indicated that he was on a payment plan prior to his 2019 licence suspension. After being advised by the Tribunal office that a motion to extend time to appeal was necessary, the appellant filed this motion on March 24, 2021.
5It is the respondent’s position that the appellant’s licence suspension expired 90 days after it was issued - on May 25, 2019. As a result, this Tribunal now lacks jurisdiction to hear an appeal of the suspension. The respondent asks that the motion to extend time be dismissed.
Analysis
6Under s. 48.3 of the HTA a police officer shall request a person to surrender their licence if the person failed or refused to provide a breath sample in response to a demand made under sections 320.27 or 320.28 of the Criminal Code. The HTA further provides that the individual’s driver’s licence shall be suspended for 90 days.
7No time period for an appeal of an ADLS is set out in the Act. The respondent submits that, as no appeal period is stipulated the appeal must be filed during the 90-day suspension. In the respondent’s view, the appellant’s licence suspension expired on May 25, 2019, leaving the Tribunal without jurisdiction to hear an appeal.
8The respondent also highlights the present tense wording of the ADLS suspension provision, section 50.1 of the HTA, which simply states: “A person whose driver’s licence is suspended under section 48.3 or 48.3.1 may appeal the suspension to the Tribunal”.
9The respondent points to the case Walker v. Registrar of Motor Vehicles, 2019 HTA MVIA 12140 to support its position. In that case, the Tribunal held that, based on similar language in section 50.2 (1) of the HTA, it lacked jurisdiction to hear an appeal from the impoundment of a vehicle after the expiry of the period of impoundment. The respondent acknowledges that this is not settled law. Two other Tribunal cases (Bobiwash v. Registrar of Motor Vehicles 12065 v Registrar of Motor Vehicles, 2019 CanLII 83594 and Arjun & Annreet Transport Inc. v. Registrar of Motor Vehicles, 2019 CanLII 110082), in contrast to Walker, confirm that the Tribunal can retain jurisdiction after the expiry of the appeal period and period of impoundment.
10In the Bobiwash and Arjun cases, the Tribunal rejected the argument that it did not have jurisdiction over an impound appeal once the impound period expired and the vehicle had been released. It held that the use of the present tense “is impounded”, and the fact that the remedy was to order the release of the vehicle, did not mean that it lost jurisdiction once the impound period expired. In those decisions, the Tribunal found that it had jurisdiction by virtue of s. 7 of the Licence Appeal Tribunal Act (“LAT Act”), which provides as follows:
Extension of time
7 Despite any limitation of time fixed by or under any Act for the giving of any notice requiring a hearing by the Tribunal or an appeal from a decision or order of the Tribunal under section 11 or any other Act, if the Tribunal is satisfied that there are reasonable grounds for applying for the extension and for granting relief, it may,
(a) extend the time for giving the notice either before or after the expiration of the limitation of time so limited; and
(b) give the directions that it considers proper as a result of extending the time.
11It should be noted that, unlike the suspension appeal provision currently at issue, the HTA’s impound appeal provisions contain an express time limit for bringing appeals. Section 9 of the Ontario Regulation 631/98 specifically states that an appeal under section 50.2 (vehicle impoundment) must be commenced within 15 days. This is clearly a limitation of time for filing a hearing request with the Tribunal. As a result, section 7 of the LAT Act clearly allows the Tribunal to extend the time for filing the notice requesting a hearing.
12There is no similar time limit for a person whose licence has been suspended pursuant to s. 48.3. As a result, it is not clear that s. 7 of the LAT Act applies in the circumstances of this case.
13The respondent submits that the Tribunal’s powers with respect to a suspension under s. 48.3 are also limited by section 50.1 (4) of the HTA, which states that “the Tribunal may confirm the suspension or may order that the suspension be set aside.” It submits that because the 90-day suspension period has expired, the Tribunal’s powers are exhausted and any remedial consequences are beyond its scope.
14The appellant’s Extended Driver Record Search gives some weight to this argument. It shows that on February 24, 2019, the appellant’s licence was “suspended until May 25, 2019” under suspension number 9798492. Ninety days later, on May 25, 2019 this suspension (number 9798492) is marked as “expired or rescinded”. On June 24, 2019, the appellant’s licence is again suspended for ‘fail to complete remedial program’. A different suspension number appears to have been issued for that suspension.
15Section 2 of O. Reg. 287/08: CONDUCT REVIEW PROGRAMS allows the Ministry to require a person whose licence has been suspended pursuant to s. 48.3 to participate in a remedial program. Under s. 5(2) of that Regulation, if a person is required to but fails to complete a conduct review program, their licence will be suspended 120 days after the initial suspension. Section 5(2) states that the suspension for failing to complete the remedial program is imposed under s. 57 of the HTA.
16Neither s. 5 of the Conduct Review Regulation nor s. 57 of the HTA contain an appeal clause permitting a person whose licence is suspended for failure to complete a remedial program to appeal to the Tribunal. In fact, s. 57(15) suggests a possible legislative intent that persons wishing to challenge action taken under s. 57 are to do so via an application for judicial review:
Parties to judicial review
The parties to any judicial review brought in respect of this section are the Registrar and the person whose licence, permit or certificate is affected.
17When asked about the practical impact of the Tribunal setting aside the suspension, the respondent indicated that the remedial program requirement and $500.00 penalty would be removed (the appellant would still be required to pay a licence reinstatement fee and any unrelated fines). In making this response, however, it was not clear whether the respondent was referring to the suspension under s. 48.3 or the subsequent suspension imposed under s. 57.
18The appellant explained that he suffered complex PTSD, was experiencing a mental health crisis and had a related condition impacting his body movement at the time of the ADLS. He believed that he could address his licence suspension after the disposition of his criminal charge. The appellant’s health issues and treatment is confirmed in part by a letter from the appellant’s family physician.
19The appellant’s criminal charge was ultimately withdrawn in early 2021. In his Notice of Motion, the appellant notes that he was unaware that there were “two justice systems” with respect to the impaired driving charge and the related suspension. The appellant acknowledged that he was represented by counsel throughout his criminal proceedings.
20The appellant argued that “someone needs to have jurisdiction” and that he is unable to drive until he completes a remedial course and pays associated fines. The appellant contacted the Ministry of Transportation, Driver Improvement Office and according to an email dated March 1, 2021, was advised to contact the police officer that issued the suspension. As directed, the appellant contacted the Ontario Provincial Police, Norfolk County Detachment. While sympathetic, in an email dated March 9, 2021, an OPP Sergeant indicated that there was nothing that the OPP could do.
21The appellant was wrong in his belief that his ADLS was tied to his criminal charge in the sense that it would resolve on its own should his criminal charges be withdrawn. Driving offences and prohibitions under the Criminal Code and provincially imposed driving suspensions are different in character and purpose (see R. v. Fernandes, 2013 ONCA 436). Driving is a highly regulated activity and is a privilege. Provincial suspensions are meant to further the objective of highway safety. They are not necessarily dependant upon a criminal conviction. Although sometimes, like here, both a suspension and a criminal charge can result from the same incident, what happens to each is often independent of the other.
22While ignorance of the law is no excuse, the Tribunal acknowledges that the appellant has been attempting to navigate a complex regulatory scheme involving multiple state actors. The Tribunal is sympathetic to the appellant’s frustration with the ADLS process and his desire to appeal the 2019 suspension.
23Although sympathetic, the Tribunal clearly can not proceed without jurisdiction. As set out below, a close reading of the legislation does not support the Tribunal now having jurisdiction over a s. 48.3 suspension that expired in June 2019.
24If the legislature had intended the Tribunal to have jurisdiction, it could have easily prescribed an express time limit for appealing the suspension, similar to that prescribed for vehicle impounds under s. 50.2 of the HTA. As noted above, had the legislature done that, the Tribunal would likely have jurisdiction to extend the time limit pursuant to s. 7 of the LAT Act. It is not clear what effect, if any, that the Tribunal’s order to set aside an expired suspension would have but that issue need not be answered today. There is no such limit, and thus the Tribunal is left with the words used in s. 50.1 and elsewhere in the HTA to ascertain the legislature’s intent.
25Sections 50.1(4)-(5) establish the following remedial powers following a hearing:
Appeal of ninety-day suspension
50.1 (1) A person whose driver’s licence is suspended under section 48.3 or 48.3.1 may appeal the suspension to the Tribunal. 1996, c. 20, s. 10; 1999, c. 12, Sched. G, s. 24 (8); 2015, c. 14, s. 16 (1).
Grounds for appeal
(2) The only grounds on which a person may appeal a suspension under section 48.3 or 48.3.1 and the only grounds on which the Tribunal may order that the suspension be set aside are,
(a) in the case of a suspension under section 48.3,
(i) that the person whose licence was suspended is not the same individual to whom a demand was made under section 320.27 or 320.28 of the Criminal Code (Canada), or
(ii) that the person failed or refused to comply with a demand made under section 320.27 or 320.28 of the Criminal Code (Canada) because he or she was unable to do so for a medical reason;
Powers of Board
(4) The Tribunal may confirm the suspension or may order that the suspension be set aside.
Licence reinstated
(5) If the Tribunal orders that the suspension be set aside, it shall give written notice of the order to the appellant and the Registrar and, upon receipt of such notice, the Registrar shall reinstate the appellant’s driver’s licence, subject to any other suspension under this Act.
26The use of the present tense “is suspended” in s.50.1(1) suggests an intent that, in order to appeal, the person’s licence must still be suspended. As noted above, the driver record suggests that the appellant’s suspension expired exactly 90 days after it was imposed—this appears to have occurred by operation of law.
27Further, the fact that the appellant’s licence is no longer suspended under s. 48.3, and instead is suspended under s. 57 means that s. 50.1(4) which empowers the Tribunal to confirm or set aside a s. 48.3 suspension does not apply. There can be little doubt that the reference to “the suspension” in (4) refers to the original ADLS under s. 48.3, and not the suspension that was imposed under s. 57 for failing to complete the remedial program. This is in part because all the references to a suspension under s. 50.1 refer to a suspension imposed under s. 48.3.
28Given that the s. 48.3 suspension expired by operation of law after 90 days and the appellant had not completed the required program, the Tribunal does not have jurisdiction to consider the appeal. The appellant is not a person whose licence is suspended under s. 48.3. There is no suspension under s. 48.3 left for the Tribunal to set aside. The suspension that remains in force is the suspension that was imposed under s. 57. Section 50.1(5) suggests that even if the Tribunal were to purport to set aside the s. 48.3 suspension, the suspension imposed under s. 57 would continue.
29There is no appeal of a suspension under s. 57 to the Tribunal, and as noted it appears that the legislature intended persons to challenge s. 57 suspensions via judicial review. If failing to complete a remedial program had the effect of extending a s. 48.3 suspension, the Tribunal would most likely have jurisdiction because there would still be a s. 48.3 suspension to set aside. The appellant would be a person whose licence is suspended under s.48.3. Because there remains only a s. 57 suspension, the Tribunal does not have jurisdiction.
30The respondent’s motion dismissing the appeal for lack of jurisdiction is therefore granted. As the Tribunal has no statutory authority to hear this appeal, the motion for an extension of time to file a notice of appeal is denied. Had the Tribunal had jurisdiction, an extension of time would have been granted given the appellant’s extraordinary personal circumstances.
Further to the above, the Tribunal orders:
The respondent’s motion to dismiss is granted.
The appellant’s motion for an extension of time to file an appeal is denied.
LICENCE APPEAL TRIBUNAL
_______________________
Laura Hodgson, Member
Released: April 28, 2021