Paul Wilson v. Registrar of Motor Vehicles, 2022 CanLII 11170

Date: 2022-02-14

Appeal under section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), from a suspension under section 48.3.1 of the Act

Between:

Paul Wilson

Appellant

and

Registrar of Motor Vehicles

Respondent

MOTION DECISION AND ORDER

Adjudicator: Colin Osterberg, Member

Appearances:

For the Appellant: Adam Little, Counsel

For the Respondent: David Milner, Counsel

Heard by Videoconference: January 13, 2022

REASONS FOR DECISION AND ORDER

OVERVIEW

1On November 26, 2020, Paul Wilson (the “appellant”) was arrested by the police and was required to perform Standard Field Sobriety Tests and a Drug Recognition Evaluation under ss. 320.27(1)(a) and 320.28(2)(a) of the Criminal Code. Following these tests, the appellant was required to provide a urine sample pursuant to s. 320.28(4)(a) of the Criminal Code. As a result of the investigation, the appellant was issued an Administrative Driver’s Licence Suspension (“ADLS”) pursuant to s. 48.3.1(1) of the Act.

2On August 10, 2021, the appellant filed a Notice of Appeal under s. 50.1 of the Act. The Registrar (the “respondent”) brings this motion to dismiss the appeal on the basis that the Tribunal does not have jurisdiction since the Notice of Appeal was issued after the ADLS was no longer in effect.

3For the reasons given below, I find that the Tribunal does have jurisdiction to adjudicate the appeal under s. 50.1 of the Act. The respondent’s motion is therefore denied.

LAW AND ANALYSIS

Law

4Under Section 48.3.1 of the Act, a person’s driver’s licence may be suspended for 90 days where that person has been evaluated according to subsection 48.3.1(2) and, taking into account all of the circumstances, a police officer is satisfied that the person was impaired by a drug or by a combination of a drug and alcohol.

5Section 50.1 of the Act provides that:

(1) A person whose driver’s licence is suspended under section 48.3 or 48.3.1 may appeal the suspension to the Tribunal.

6Section 50.1(2) sets out the grounds upon which an appeal may be based. The grounds are limited to cases where the person whose licence is suspended is not the same person who was evaluated under s. 48.3.1(2) or where the person had a medical condition which impaired their performance of the evaluation that was conducted under subsection 320.28(2) of the Criminal Code.

7Under s. 50.1(4), the Tribunal may confirm the suspension or may order that the suspension be set aside. Section 50.1(5) states that if LAT orders that the suspension be set aside, the “Registrar shall reinstate the appellant’s driver’s licence”.

8The Registrar argues that the Act should be interpreted to mean that a person whose licence has been suspended may commence an appeal while the suspension is in effect, and that the Tribunal does not have jurisdiction to consider an appeal commenced after the suspension has expired. The Registrar cites the Tribunal’s decision in Drover v. Registrar of Motor Vehicles, 2021 CanLII 35563 (“Drover”) in support of its position.

9The Registrar argues that the words “is suspended” in s. 50.1(1) should be interpreted to mean “is currently suspended”. It argues that s. 50.1(1) was intended to provide the appellant the opportunity to deal with the immediate consequences of a licence suspension in limited circumstances while the suspension is in effect. The Registrar argues that s. 50.1(1) does not create a time limit for appeal but rather creates jurisdiction in the Tribunal over the matter for a specified time period. The Registrar says that after the expiry of the suspension, the Tribunal no longer has jurisdiction.

10The appellant argues that the Act should be interpreted to mean that there is no limitation period for bringing the appeal and that, if there is a limitation period prescribed, the Tribunal has the discretion to extend the time for appeal under s. 7 of the Licence Appeal Tribunal Act (“LAT Act”). The appellant relies on the Tribunal decisions in Bobiwash v. Registrar of Motor Vehicles, 2019 CanLII 83594 (“Bobiwash”) and Arjun & Annreet Transport Inc. v. Registrar of Motor Vehicles, 2019 CanLII 110082 (“Arjun”).

11The appellant argues that the words “is suspended” in s. 50.1(1) should be interpreted to include “has been suspended”. He argues that this section speaks to who may appeal rather than when the appeal must be commenced.

Analysis

12The words of a statute are to be read in their entire context, in their grammatical and ordinary sense harmoniously with the scheme of the Act, and the intention of Parliament.¹

13Section 50.1(1) of the Act may be grammatically interpreted in two ways. It could mean that only a person whose licence is currently under suspension may appeal to the Tribunal. Alternatively, it could mean that a person whose licence has been suspended may appeal. For example, s. 55.1(27) of the Act provides that “the owner of a motor vehicle that is impounded…may bring an action against the driver…” and clearly does not require such action to be commenced while the vehicle is still impounded.

14The Registrar, relying on the decision in Drover, argues that only a person whose licence is currently under suspension may commence an appeal. In that case, the Tribunal considered the phrase “is suspended” to indicate the present tense suggesting that, in order to appeal the person’s licence, it must still be suspended. In making that finding, the Tribunal also noted that there was no suspension left for the Tribunal to set aside. The Registrar distinguished the Arjun and Bobiwash decisions on the basis that those decisions involved impound appeals under s. 50.2(1) of the Act which, unlike ADLS appeals, contain an express time limit for bringing appeals under s. 9 of Ontario Regulation 631/98.

15The Tribunal in the Arjun and Bobiwash decisions found that the phrase “is impounded” in s. 50.2(1) should be interpreted to include “has been impounded”. The Tribunal found that the purpose of the statute would be confounded if the words “is impounded” were interpreted to mean “is currently impounded” by reference to s. 55.1(27) which allows the owner of a motor vehicle that is impounded to bring an action against the person who was driving the vehicle at the time of impoundment.

16The Registrar argues that the cases decided under s. 50.2 of the Act have no application to appeals under s. 50.1 since the Act is dealing with two completely different issues – administrative suspensions vs. vehicle impoundments.

17The provisions with respect to ADLS appeals and impoundment appeals are side-by-side in the Act and the wording of the two sections are substantially the same. They state as follows:

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.

50.2(1) The owner of a motor vehicle that is impounded under section 55.1 may… appeal the impoundment to the Tribunal.

18I do not accept that the Legislature intended there to be two different interpretations of nearly identical wording in provisions dealing with appeals placed one after the other in the Act. The similarity in wording and the proximity of the two sections within the Act are factors which indicate that the Legislature intended consistent interpretations. If the Legislature intended that two such similar provisions, appearing next to one another in the same statute were to be given different interpretations, it likely would have indicated that intention explicitly rather than requiring such a conclusion to be drawn by inference.

19The Registrar argues that, since the only relief that can be granted by the Tribunal is to confirm or set aside the suspension, and since such an order would have no meaning where the licence is not then under suspension, the Legislature must have intended that the appeal must be commenced while the suspension is still in effect. The Registrar argues that, unless the appeal is commenced while the suspension is in effect, any order by the Tribunal will have no practical effect and therefore s. 50.1(1) should be interpreted as precluding the commencement of an appeal after the suspension has expired.

20In my view, the Registrar’s conclusion does not follow. What follows from the Registrar’s argument is not that the appeal must be commenced during the appeal period, but that the appeal must be decided during the appeal period. If the appeal is not decided before the suspension expires, according to the Registrar’s reasoning the Tribunal’s order confirming or setting aside the suspension would have no different effect whether the appeal is commenced before or after the suspension expires.

21There may be many reasons that the decision of an appeal is not completed within 90 days of an ADLS: The Tribunal may not have time available for the hearing to take place; the parties may have difficulty coordinating a time to attend; the parties may require documentary evidence or the attendance of witnesses who may not be available within the 90 days; the decision may take time to write and be delivered after the period of suspension; and so on. In fact, if the Registrar’s reasoning is adopted, it is possible that decisions on appeals filed early in the suspension period could be decided after the suspension has expired and so find the Tribunal without jurisdiction whereas appeals filed later in the suspension period could be decided while the Tribunal continues to have jurisdiction. I find that this would not be reasonable and that this was not the intention of the Legislature.

22The Registrar acknowledges that an appeal commenced before the expiry of the suspension is within the jurisdiction of the Tribunal even if the decision is rendered after the suspension period has expired. The Registrar says this is so because the commencement of an appeal “crystalizes” the appellant’s rights so that an appeal commenced during the period of suspension and decided after that period is within the Tribunal’s jurisdiction despite its contention that the Tribunal’s order would be absent any practical effect. I do not accept this argument. First, this suggestion contradicts the Registrar’s argument that s. 50.1(1) is not a provision that establishes a time limit for commencing an appeal, but rather establishes the jurisdiction of the Tribunal. Second, if the Tribunal loses jurisdiction once the suspension is no longer in force on the basis that the order of the Tribunal is of no effect, then I do not see how that would be different just because the appeal has been commenced during the suspension period.

23In any event, I do not accept the Registrar’s position that the order of the Tribunal has no practical effect after the suspension period has ended. “Setting aside” an ADLS, as the Tribunal is authorized to do, has different consequences than the “expiration of” an ADLS after the 90-day period has elapsed. Under s. 50.1(5) if the Tribunal orders that the suspension be set aside, the Registrar is required to reinstate the appellant’s driver’s licence. That is not the case when the suspension expires after the 90-day period has elapsed. Further, if the Tribunal orders that the suspension be set aside, the suspension no longer appears on the appellant’s driving record and will no longer be taken into account in the event of a subsequent ADLS. The setting aside of a suspension and removal from the appellant’s driving record may also result in different collateral effects such as lower insurance premiums.

24I find that the relief provisions do not support the Registrar’s position that the Tribunal is without jurisdiction. In fact, the Registrar’s position that the Tribunal does have jurisdiction to make an order under s. 50.1(4) after the ADLS has expired, supports the appellant’s position that the Tribunal has jurisdiction where the appeal was commenced after the expiry.

25The Registrar argues that the absence of an explicit limitation period for appealing the suspension within the section implies that appeals are limited to those commenced within the 90-day suspension period. The Registrar argues that it is unreasonable to conclude that the Legislature intended that there be no limit on when an appeal can be commenced. I disagree.

26Neither s. 50.1(1) nor s. 50.2(1) explicitly provide for a time within which an appeal must be commenced. Section 9 of Ontario Regulation 631/98 provides that an appeal under s. 50.2(1) must be commenced within 15 days of a vehicle impoundment. Moreover, whereas s. 55.1(38)(k) provides that regulations may be made prescribing the time within which an appeal may be brought under s. 50.2 with respect to impoundments, the Legislature did not enact a similar provision with respect to an ADLS. The fact that the Legislature contemplated that time limits for commencing an appeal could be imposed by regulation and explicitly provided for a time period within which an appeal must be commenced under s. 50.2(1), and did not do so with respect to s. 50.1(1), implies that it intended that there be no time period for s. 50.1(1).

27I do not accept that the absence of an explicit limitation period in s. 50.1(1) implies that there must be an implicit limitation period. As the appellant points out, there are other licence suspension provisions in the Act for which there is no time limit to appeal. Section 47 provides for the suspension of a person’s licence where a medical condition makes it unsafe for that person to drive a motor vehicle. There are good reasons that a s. 47 appeal may be brought at any time, and in particular, because the medical condition making it unsafe for the person to drive may change at some point such that there are no more related safety concerns.

28I agree with the appellant that there are good reasons for the Legislature to have determined that there should be no time limit to appeal an ADLS. The person whose licence is suspended may not know about the suspension until after the ADLS has expired if he was not the person who submitted to the evaluation under s. 320.28(2) of the Criminal Code. This may result in an innocent person being unjustly prohibited from appealing a suspension under s. 50.1(2)(b)(i). Also, a person may be prevented from appealing within the suspension period by the same medical condition which would have formed the basis for an appeal under s. 50.1(2)(b)(ii).

29I find additional support for this conclusion in the fact that the Legislature explicitly provided for a time limit for the commencement of an appeal under s. 50.2 of the Act. That section uses substantially the same wording as is contained in s. 50.1. That the Legislature failed to specify a time limit under s. 50.1 implies that the omission was intentional and that it intended there to be no limitation period for appeals under s. 50.1.

30I find that s. 50.1(1) of the Act speaks to who may appeal and not to when the appeal must be commenced. I find that appeals under s. 50.1(1) may be commenced by a person whose licence has been suspended and are not limited to appeals commenced while the vehicle is under suspension.

ORDER

31For the reasons set out above, I find that the Tribunal has jurisdiction and the respondent’s motion to dismiss the appeal is denied.

32The Tribunal shall schedule a case conference and notify the parties accordingly.

Footnotes

1. 1Rizzo & Rizzo Shoes Ltd., 1998 CanLii 837 (SCC); Driedger, E.A. The Construction of Statutes, 2nd ed., Toronto, Butterworths, 1983, at 87.