Licence Appeal Tribunal File Number: 15406/MED

In the matter of an appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 from a decision of the Registrar of Motor Vehicles to suspend a licence pursuant to Section 47(1) of the Act

Between:

Heather Lynne Fry

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

PANEL:

Isla McPherson, M.D., Adjudicator

Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant:

Sergey Bogdanov, Paralegal

For the Respondent:

David Milner, Counsel

Ian Sookram, Representative

HEARD: April 15, 2024

OVERVIEW

1On November 17, 2023, Heather Lynne Fry (the “appellant”) filed a Notice of Appeal – Downgrade of a Driver’s Licence for Medical Reasons under s. 32 (5)(b)(i) and s. 50 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) seeking to appeal a request from the Deputy Registrar of Motor Vehicles (“Registrar”) in a letter dated October 13, 2003 for a medical report in respect of the appellant’s vision waiver renewal (“Letter”). The Letter indicates that if the Registrar does not receive the medical report by December 22, 2023, the appellant’s driver’s licence will be suspended.

2The appellant’s grounds for appeal as set out in her Notice of Appeal are that the appellant has undergone all assessments and passed all standard tests that the Registrar requested her to do in the last 12 years, her vision tests have always exceeded the requirements of s. 18 of Ontario Regulation 340/94 (“Regulation”), and her medical records do not support the Registrar’s conclusion that the appellant does not meet the standards in s. 18 of the Regulation.

3In her Notice of Appeal, the appellant asks the Tribunal to:

a. Order that the appellant meets the vision standards under s. 18 of the Regulation.

b. Set aside the Registrar’s decision that the appellant should hold a vision waiver.

PRELIMINARY ISSUE:

4The Tribunal’s January 9, 2024 Case Conference Report and Order (“CCRO”) indicates that the Registrar is of the view the Tribunal does not have jurisdiction to hear the appellant’s appeal.

5As a result, the Tribunal’s January 9, 2024 CCRO set out the issues for the hearing as follows:

The preliminary issue to be decided first is:

a. Does the Tribunal have jurisdiction to hear this dispute?

If the Tribunal has jurisdiction, then the substantive issues to be decided are:

b. Does the appellant have a medical condition (alleged to be a visual deficiency secondary to brain tumour)?

c. If so, does such condition warrant the need to submit to annual visual testing?

RESULT OF THE PRELIMINARY ISSUE HEARING

6We conclude that the Tribunal does not have jurisdiction to hear this appeal and dismiss this appeal. Given that we have found that the Tribunal does not have jurisdiction to hear this appeal, we decline to determine the substantive issues outlined above.

ANALYSIS

7Both parties confirmed they would be making oral submissions on the preliminary issue to supplement their written submissions. Neither party sought to adduce evidence.

Positions of the Parties

8In her written submissions, the appellant submits that s. 50(1) of the HTA provides an appeal to the Tribunal for any person who feels aggrieved by a decision of the Minister under s. 32(5)(b)(i) of the HTA or of the Registrar under s. 17 or s. 47 of the HTA. The appellant submits that the Letter requiring the appellant to submit to vision testing and provide medical reports imposes a “condition” on her driver’s licence within the meaning of s. 32(5)(b)(i) of the HTA and therefore the Tribunal has jurisdiction to consider her appeal. In oral submissions, the appellant confirmed that it is her position that s. 50 and s. 32(5)(b)(i) provide the Tribunal with jurisdiction to hear this appeal.

9The appellant also confirmed in oral submissions that the basis of this appeal is the Letter. The appellant’s driver’s licence was not suspended by the Registrar at the time she filed her appeal.

10The Registrar submitted that the Letter, and other correspondence sent by the Registrar to the appellant about the vision waiver granted to her under s. 21.2 of the Regulation, is routine, formulaic, useful and informative and does not create a driver’s licence condition within the meaning of s. 32(5)(b)(i) of the HTA.

11The Ministry of Transportation is authorized by the HTA and clause 15(1)(e) of the Regulation to ask a driver at any time to provide medical information. The appellant’s objections to the Letter and to being required to update the Ministry annually fall outside the scope of the jurisdiction of the Tribunal. There is no source of jurisdiction that allows the Tribunal to set aside this requirement or to exempt a driver from a requirement to submit medical information under clause 15(1)(e) of the Regulation.

12It is not the wording of the Ministry’s periodic letters but rather the combined effect of s. 32(5)(b)(ii) of the HTA and clause 15(1)(e) of the Regulation that compel the appellant to submit medical information when asked to do so by the Ministry. The updated information allows the Ministry to periodically confirm the appellant’s continued eligibility for her Class G vision waiver and her objection to providing updated medical information is outside the scope of the Tribunal’s jurisdiction which is described in s. 50 of the HTA. The Registrar requested that the appeal be dismissed on that basis.

The Tribunal Does Not Have Jurisdiction to Hear This Dispute

13At the conclusion of the hearing, we determined that the Tribunal does not have jurisdiction to hear this appeal and advised the parties that the appeal was dismissed for reasons to be delivered in writing. These are our reasons.

14We agree with the Registrar’s submissions on the jurisdiction of the Tribunal. The Tribunal is created by statute and has only the powers given to it by legislation; here, the HTA.

15Section 50(1) of the HTA provides for an appeal of a decision under s. 32(5) of the HTA 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 s. 17 or 47. Section 25.1 of the Regulation provides that a decision made by the Minister under subclause 32(5)(b)(i) of the HTA is prescribed as a kind of decision a person may appeal under s. 50 of the HTA.

16There is no right of appeal provided for a decision under s. 32(5)(b)(ii) of the HTA.

17Here, the Letter informs the appellant of her obligation to submit medical information in respect of her vision waiver renewal and reminds her that failure to do so by December 22, 2023 will result in suspension of her driver’s licence. It is clear from the plain wording on the face of the Letter that it results from the Registrar’s decision under s. 32 (5)(b)(ii) that the appellant failed to meet the mandatory vision standards found in s. 18(2) of the Regulation and granted her a vision waiver. Periodically, information is requested by the Registrar to renew the vision waiver.

18There is no right of appeal to the Tribunal of a decision made under s. 32(5)(b)(ii) to grant a vision waiver on the appellant’s Class G driver’s licence and no jurisdiction in the Tribunal to hear such an appeal.

19We disagree with the appellant’s submission that the requirement to submit periodic medical information in order to satisfy the Registrar that her vision waiver should be renewed amounts to a “condition” on her appellant’s driver’s licence. To the contrary, it is apparent from the face of the Letter that it requests the type of medical information which the Registrar is allowed to request from the appellant under clause 15(1)(e) of the Regulation. While s. 15(1.1) of the Regulation makes it a condition of a driver’s licence to submit to an examination including that described in clause 15(1)(e), that is a legislated condition and not a condition imposed by the Minister or Registrar. To construe the Registrar’s request for information into a condition within the meaning of s. 32 (5)(b)(i) of the HTA would be an error in the context of the Letter and the information it is requesting for the vision waiver renewal.

20The Regulation provides for specific conditions that may be imposed on a driver’s licence within the meaning of s. 32 of the HTA such as in s. 5 through s. 11 (novice drivers), s. 3, 4, and 12.1(2) (Class A drivers), and s. 23.0.1(3) (Class M drivers). We conclude that the Letter does not impose any condition on the appellant’s driver’s licence. As a result, the Tribunal has no jurisdiction to hear this appeal under s. 32 (5)(b)(i) of the HTA.

21Waiving a requirement under the HTA regarding vision standards and granting a vision waiver to the benefit of the appellant does not create a condition but instead affords the appellant an opportunity to have strict compliance with vision standards waived, provided satisfactory medical information is periodically submitted to the Registrar to ensure ongoing eligibility for a waiver given that her vision, medical tests and requirements are subject to change over time. The request for information contained in the Letter relates to the Registrar’s decision to grant a vision waiver under s. 32(5)(b)(ii), a matter over which the Tribunal has been granted no legislative authority to review by way of appeal.

22Further, the appellant confirmed in oral submissions that her driver’s licence was not suspended at the time she filed her appeal.

SUBSTANTIVE ISSUES NOT DETERMINED

23Given that we have found that the Tribunal does not have jurisdiction to hear this appeal, we decline to proceed to hear the appellant’s appeal on the substantive issues outlined above, specifically, whether the appellant has a medical condition (alleged to be a visual deficiency secondary to brain tumour), and, if so, whether such condition warrants the need to submit to annual visual testing.

Conclusion

24We find that the Tribunal does not have jurisdiction to hear this appeal and dismiss this appeal. Given that we have found that the Tribunal does not have jurisdiction to hear this appeal, we decline to determine the substantive issues outlined above.

ORDER

25For the reasons set out above, we dismiss this appeal.