Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 17170/ADLS

In the matter of an appeal from a suspension under s. 48.3 of the Highway Traffic Act, R.S.O. 1990, c. H.8

Between:

Trevor J. Boyne Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

PANEL: Dr. Isla McPherson, M.D. Avril A. Farlam, Vice-Chair

APPEARANCES: For the Appellant: Trevor J. Boyne, Self-Represented For the Respondent: Leila Pereira, Agent

Heard by videoconference: July 29, 2025 and August 15, 2025

DECISION

Overview

1Trevor J. Boyne, the appellant, appealed under section 50.1 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) the December 28, 2024 suspension of his driver’s licence for 90 days under section 48.3.1 of the HTA as a result of his failure to pass an evaluation conducted by a Drug Recognition Expert under subsection 320.28(2) of the Criminal Code (Canada) on December 27 and December 28, 2024, 2024 (“DRE evaluation”).

2The appellant submits that his ability to operate a motor vehicle or vessel was not impaired by a drug or a combination of drug and alcohol and that he had a medical condition, at that time of the activity for which the suspension was imposed, that impaired his performance of the DRE evaluation.

PRELIMINARY ISSUE – APPELLANT’S MOTION

3By Notice of Motion dated July 11, 2025, the appellant sought the following orders from the Tribunal:

A. All evidence submitted by either party after 5:00 pm on June 30, 2025 be deemed inadmissible, in accordance with the direction made at the Case Conference on June 27, 2025 and Rule 6.5 of the Tribunal’s Rules.

B. That the respondent’s witness be excluded from testifying as their name and summary of their evidence were not disclosed by the required deadline in contravention of Rules 9.1 and 9.5.

C. That the availability of this witness not affect the rescheduling of the hearing, as no party was granted permission to introduce late or undisclosed evidence. “Procedural fairness requires the Rules be applied equally to both sides.”

D. That the DRE summary/evaluation be admitted, as it was submitted by both parties and forms the basis for the ADLS suspension. “Its inclusion reflects mutual reliance and does not prejudice either party.”

4The Tribunal directed that the appellant’s motion be determined at this hearing in accordance with Rule 9.3 of the Licence Appeal Tribunal Rules, 2023 (the “Rules”).

5Submissions were made by both parties at this hearing.

6The appellant submitted in his Notice of Motion and at the hearing that “In the spirit of a fair trial, I ask the Tribunal to apply the same standard to both parties and exclude all late submissions equally.” The appellant also submitted that the respondent’s late submission of evidence could result in procedural unfairness and prejudice to him but, when asked, he could not be specific except to say that he wasn’t prepared for the hearing.

7The respondent opposed the appellant’s motion because it was not possible for all of the documentation to be produced to the appellant by the deadline of June 30, 2025 because there was delay in obtaining documents from the police. As a result, the respondent submitted documents for the hearing on July 3. The appellant objected to this.

8This hearing was originally scheduled to take place on July 11, 2025.

9On July 11, 2025, the Tribunal hearing panel held the matter down to allow the appellant to forward more documents to the Tribunal and the respondent, and the appellant did so. Given the number of medical records put forward on July 11, the Tribunal adjourned the hearing to allow the respondent to review the medical records submitted and set a new deadline of July 23, 2025 for the parties to provide to the Tribunal and each other any further documents they intend to rely on at the hearing. The hearing was rescheduled to July 29, 2025 at which time it came before us. The appellant’s motion was heard as a preliminary matter.

10After considering the submissions of both parties, we orally ruled that all documents submitted for this hearing by the appellant and the respondent on or before July 28, 2025 be admitted into evidence at this hearing, subject to the panel assigning the appropriate weight to the documents of both parties. Both parties were invited to make submissions as to weight of the documents in closing submissions. Our reasons are as follows.

11Although the appellant seeks to exclude the respondent’s documents because they were not produced by the June 30, 2025 deadline ordered by the Tribunal at its case conference, the appellant did not comply with the deadline either. The respondent was a few days late and submitted documents by July 3, 2025. The appellant was still submitting documents on the original July 11, 2025 hearing date for this appeal. The Tribunal panel, then, adjourned the hearing for two weeks to allow the respondent to review the appellant’s documents and to allow both parties to submit all documents they needed for the hearing.

12Rule 9.3 of the Rules presumptively prohibits a party from relying on evidence that they submitted late but provides the Tribunal with discretion to permit the late evidence if it is persuaded to do so based on Rule 9.3’s factors.

13Here, we are satisfied that both parties had their own reasons for non-compliance. The respondent had to rely on obtaining documents from the police. The appellant is self-represented and apparently was unable to comply in time.

14Admissibility of documents and testimony is a low bar to meet. All of the documents put forward by both parties, and the testimony of the respondent’s witness, appear to be relevant to determination of the issue before us at this stage in the hearing.

15There is no prejudice to the appellant who has had several weeks to consider, review, and prepare any response he has to the respondent’s documents. The respondent did not suggest any prejudice to it from the late production of documents by the appellant.

16The appellant’s appeal does not rely on the “mistaken identity” ground in s. 50.1(2)(b)(i). We think it reasonable to conclude that the appellant knows about his interaction with the police at roadside and during the DRE evaluation and knows the results of the DRE evaluation.

17Given all of the above, we are of the view that the most fair and reasonable resolution of the appellant’s motion is to deny the motion and allow both parties to put forward at the hearing all of the documents they have produced and allow the respondent’s witness to testify given that documents have now been produced showing what the police officer will be testifying about.

ISSUE

18The issue in dispute, in accordance with s. 50.1(2) (b)(ii) of the HTA, is whether the appellant’s ability to operate a motor vehicle was not impaired by a drug or by a combination of a drug and alcohol, and the appellant had a medical condition, at the time of the suspension, that impaired his performance of the DRE evaluation that was conducted under subsection 320.28(2) of the Criminal Code (Canada).

RESULT

19We confirm the Registrar’s decision to suspend the appellant’s driver’s licence. For the reasons that follow, we find that the appellant has failed to establish that his ability to operate a motor vehicle was not impaired by a drug or by a combination of a drug and alcohol, and the appellant had a medical condition, at the time of the suspension, that impaired his performance of the DRE evaluation.

LAW:

20A person whose driver’s licence has been suspended under s. 48.3.1 of the HTA may appeal the suspension to the Tribunal under section 50.1 of the HTA.

21Section 50.1(2) (b) of the HTA sets out the only grounds on which on a person may appeal a s. 48.3.1 suspension of their driver’s licence. The ground of appeal raised by the appellant is in s. 50.1(2)(b)(ii), which provides that the Tribunal may set aside the suspension if:

…the person’s ability to operate a motor vehicle or vessel was not impaired by a drug or by a combination of a drug and alcohol, and the person had a medical condition, at the time of the activity for which the suspension was imposed, that impaired his or her performance of the evaluation that was conducted under subsection 320.28 (2) of the Criminal Code (Canada).

22Following a hearing, the Tribunal may, under s. 50.1(4) of the HTA, confirm the suspension or may order that the suspension be set aside.

23The appellant has the burden of proving in this appeal both parts of his ground of appeal, being:

(a) That his ability to operate a motor vehicle was not impaired by a drug or by a combination of a drug and alcohol, and

(b) That he had a medical condition at the time that impaired his performance of the evaluation that was conducted under s. 320.28(2) of the Criminal Code.

ANALYSIS:

(a) The appellant has not established that his ability to operate a motor vehicle was not impaired by a drug

24After considering the totality of the evidence, we find that the appellant has failed to establish that that his ability to operate a motor vehicle was not impaired by a drug on December 27, 2024. Our reasons are as follows.

25The appellant admitted in his testimony that he had used methamphetamine (“meth”) in the morning on December 26, 2024, but suggested that he was no longer under its influence at the time of the evaluation on December 27, 2024. The appellant’s testimony that he was no longer under the influence of meth at the time of the evaluation is not supported by any medical evidence.

26The evidence of the respondent establishes the contrary. The results of the appellant’s blood test on December 28, 2024 clearly establishes the existence of meth in his blood. According to the Toxicology Report authored by Christena Watts, M.Sc. (Forensic Scientist, Toxicology, Centre of Forensic Sciences) regarding the appellant’s blood referred to in the testimony of respondent’s witness Officer Bender, Ontario Provincial Police, there was the presence of both methamphetamine and amphetamine in the blood sample collected from the appellant December 28, 2024. Christina Watts indicates that meth can impair an individual’s ability to operate a motor vehicle, and notes that behaviours include drifting out of the lane of travel or off the roadway, erratic driving, speeding and collisions.

27The testimony of Officer Bender also established that the appellant’s ability to operate a motor vehicle was, more likely than not, impaired by a drug, specifically meth on December 27, 2024. Officer Bender provided detailed and specific testimony about the appellant’s apparent driving ability as follows. Officer Bender testified that on December 27, 2024, the police had received two traffic complaints about the appellant’s vehicle driving erratically. Officer Bender found the appellant’s motor vehicle in the ditch on the wrong side of the road. Officer Bender testified that the appellant had white powder on his pant leg, he was sitting on a pill capsule, there was a used pipe in the vehicle console and other drug paraphernalia in the vehicle, bags of pills, another cell phone, and the appellant had bloodshot eyes. The appellant was taken to the police station where a DRE evaluation was made by a qualified officer within Officer Bender’s earshot.

28The appellant was able to complete the DRE evaluation and blood was taken which showed the appellant had meth and amphetamine in his blood.

29Although the appellant testified that he could not adequately perform portions of the DRE evaluation, for example, the walking part of the test, Officer Bender testified that the appellant’s medical conditions were taken into account and also testified that the DRE evaluation is not just focused on one category. Officer Bender testified that he agrees with the opinion expressed in the DRE report that the appellant was impaired at the time of the suspension.

30We invited the parties to make submissions as to the weight to be given to the respondent’s evidence given that the appellant had brought a motion heard at the beginning of the hearing. In summary, the appellant submitted that the respondent’s evidence should be given little to no weight as these documents were given to him late and he wasn’t prepared for this hearing as a result. The appellant also suggested that Officer Bender’s evidence should not be accepted because he did not conduct the DRE evaluation and is not trained on that.

31We have considered the appellant’s submissions on weight to be given to the respondent’s evidence and disagree with them. The appellant was given ample opportunity to prepare for the hearing after our ruling on the motion, and to submit any other documentation he wished to submit for the hearing but he did not submit any other documentation. The appellant simply continued to maintain that he was not impaired by drug on December 27, 2024 without any medical proof.

32We prefer the evidence of Officer Bender over the self-serving evidence of the appellant as to whether the appellant’s ability to operate a motor vehicle was impaired by a drug. Officer Bender, an experienced police officer, testified with the aid of his notes made contemporaneously with his observations and interaction with the appellant on December 27, 2024. Although Officer Bender did not conduct the DRE evaluation, he testified that it was conducted within earshot, he reviewed and testified about the results of it and had access to the records and to his own notes to support his testimony.

33In our view, there is ample evidence to establish that the appellant’s ability to operate a motor vehicle was, more likely than not, impaired by a drug on December 27, 2024, and no evidence at all put forward to establish the contrary by the appellant except his own self-serving testimony that the meth that he had used the day before no longer affected him.

(b) Whether the appellant has established that he had a medical condition at the time that impaired his performance of the evaluation that was conducted under s. 320.28(2) of the CC.

34The respondent does not dispute that the appellant has (a history of) medical conditions, including a brain injury and other medical conditions, but submits that none of these medical conditions individually or collectively, impaired his performance of the DRE evaluation.

35Given that the appellant has not established the first part of the two-part ground of appeal he has put forward, it is unnecessary for us to determine this issue.

Conclusion

36For the reasons above, we find that the appellant has failed to establish his ground of appeal.

ORDER

37We confirm the suspension of the appellant’s driver’s licence.