Fingland v. Ministry of Transportation [Indexed as: Fingland v. Ontario (Ministry of Transportation)]

93 O.R. (3d) 268

Court of Appeal for Ontario,

Rosenberg, Sharpe and Blair JJ.A.

December 3, 2008

Criminal law -- Motor vehicles -- Section 41(1) of Highway Traffic Act providing for automatic three-year licence suspension for second drinking and driving conviction and for indefinite suspension for subsequent conviction -- Applicant pleading guilty to third drinking and driving offence pursuant to agreement that it would be treated as second conviction for sentencing purposes -- Due to unrelated mistake in Ministry of Transport's records, applicant was informed that his licence was suspended for three years for second conviction -- Applicant meeting prerequisites for licence reinstatement under s. 41.1(1) of Act and Registrar reinstating his licence -- Ministry subsequently discovering mistake and informing applicant that his licence was suspended indefinitely -- Act not giving Registrar power to revoke reinstated licence -- Ministry not permitted to disavow Registrar's earlier exercise of statutory authority in reinstating applicant's licence -- Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 41, 41.1.

The applicant was convicted of impaired driving as a young offender. Two years later, he was again convicted of that offence. When he faced a third drinking and driving charge, he agreed to plead guilty and the Crown agreed that for the purpose of sentencing, he would ask the court to treat the offence as a second, rather than a third, offence. The sentencing judge accepted that submission. Under the Highway Traffic Act, a driver's licence is suspended automatically upon conviction for drinking and driving offences under the Criminal Code, R.S.C. 1985, c. C-46. Section 41(1) provides for a one- year suspension upon the first conviction, a three-year suspension upon the second conviction and an indefinite suspension upon a third or subsequent conviction. Due to an error, the Ministry of Transport's records did not show the applicant's young offender conviction. The applicant was notified that his driver's licence was suspended for three years. He sought and was granted reinstatement of his licence under s. 41.1(1) of the Act after paying the required fees and completing an impaired driving program. The error was subsequently discovered, and the applicant was informed that he was under a lifetime suspension. He brought an application in the Divisional Court for an order of mandamus requiring the Registrar to reinstate his licence. The application was granted. The Ministry appealed.

Held, the appeal should be dismissed.

In the usual course, s. 41(1)(h) of the Act imposes an automatic indefinite suspension upon a third conviction and the Registrar has no discretion in the application of that provision to particular individuals. However, s. 41(1)(h) did not foreclose the applicant's claim in the unusual circumstances of this case. Having treated the third conviction as a second conviction, and the Registrar having been satisfied that the licence should be reinstated pursuant to s. 41.1(1), the Ministry could not now revert to what the Registrar should have done originally. Nothing in the Act specifically gives the Registrar the power to revoke a driver's licence that the Registrar has reinstated. The automatic mandatory suspension periods in s. 41(1) are explicitly made subject to the reinstatement provisions in s. 41.1(1). Where the Registrar acted upon its statutory power to reinstate the applicant's licence, particularly in light of all that had gone on before, the applicant was entitled in law to act on the basis that he had a valid driver's licence. [page269]

APPEAL from order of Justices Lane, McCombs and McLean, [2007] O.J. No. 3880, 230 O.A.C. 78 (Div. Ct.) granting application for order of mandamus requiring Registrar to reinstate applicant's driver's licence.

Cases referred to Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 2000 CanLII 16991 (ON CA), 51 O.R. (3d) 641, [2000] O.J. No. 4804, 195 D.L.R. (4th) 135, 139 O.A.C. 201, [2001] 1 C.N.L.R. 56, 41 R.P.R. (3d) 1, 101 A.C.W.S. (3d) 859 (C.A.) Statutes referred to Criminal Code, R.S.C. 1985, c. C-46 Highway Traffic Act, R.S.O. 1990, c. H.8, ss. 41(1) [as am.], (g) [as am.], (h) [as am.], 41.1(1), (2), (3)

John Petrosoniak and Scott Hattie, for appellant. Leo Adler, for respondent.

The judment of the court was delivered by

[1] Sharpe J.A.: -- This appeal involves the provisions of the Highway Traffic Act, R.S.O. 1990. c. H.8 (the "Act") relating to the automatic suspension of a driver's licence upon conviction for drinking and driving offences under the Criminal Code, R.S.C. 1985, c. C-46. Legislation

[2] Section 41(1) of the Act provides that the driver's licence of a person who is convicted under certain prescribed offences, including drinking and driving offences under the Criminal Code,

. . . is thereupon suspended, (f) upon the first conviction, for one year; (g) upon the first subsequent conviction, for three years; and (h) upon the second subsequent conviction or an additional subsequent conviction, indefinitely.

[3] Section 41(1) is "[s]ubject to subsections 41.1(1), (2) and (3)". Section 41.1(1) provides:

41.1(1) Where the Registrar is satisfied that a person whose driver's licence is suspended under clause 41(1)(f) or (g) has completed the prescribed assessments and remedial programs that are applicable to the person, if any, and meets the prescribed requirements that are applicable to the person, if any, the Registrar shall reinstate the driver's licence upon the expiry of the suspension, subject to any other suspension under this Act. [page270]

[4] Similarly, s. 41.1(2) provides that an indefinite suspension under s. 41(1)(h) may be reduced to a ten-year suspension if the person has completed the applicable assessments, programs and requirements. Section 41.1(3) allows the Registrar to suspend a person's licence beyond the mandatory periods set out in s. 41(1) until he or she is satisfied that the applicable assessments, programs and requirements have been met. Facts

[5] The respondent was first convicted of impaired driving as a young offender in 1994.

[6] Two years later, in 1996, he was again convicted of impaired driving at the age of 19. He was sentenced to seven days in jail and prohibited from driving for two years under the Criminal Code. His driver's licence was suspended under the Act for the period then applicable to a second conviction, namely, two years.

[7] Three years later, in 1999, when he was 22 years old, the respondent faced a third drinking and driving offence: operating a motor vehicle while his blood-alcohol concentration exceeded the legal limit. Following plea discussions, the respondent agreed to plead guilty and the Crown attorney agreed that for the purpose of sentencing, he would ask the court to treat the offence as a second rather than a third offence.

[8] The respondent's entire record was disclosed to the court after the plea was entered, but it was explained to the judge that the Crown [was] "only going to proceed on the prior one of 1996" and that the respondent had entered his plea on the basis that the Crown would treat the offence as a second offence. The trial judge accepted those submissions and imposed a sentence on that basis. He advised the respondent that his licence would be suspended automatically under the Act "for two years I should think" and imposed a driving prohibition under the Criminal Code for that same two-year period.

[9] In advising the respondent that his licence would be suspended for two years under the Act, the trial judge was wrong on two counts. First, the period of automatic suspension for a second offence applicable at the time was three years, not two years, pursuant to s. 41(1)(g). Second, and more importantly, despite the plea agreement for the purposes of sentencing under the Criminal Code, the respondent's conviction should have been recorded as a third conviction leading to an indefinite suspension under s. 41(1)(h).

[10] However, as a result of a totally unrelated error regarding the way the respondent's young offender conviction was recorded, the Ministry of Transport's records revealed only one prior [page271] conviction. The respondent was duly notified by the Registrar in a notice dated November 18, 1999:

YOUR DRIVER'S LICENCE IS SUSPENDED UNDER SECTIONS 41 AND 43 OF THE HIGHWAY TRAFFIC ACT FOR A PERIOD OF 3 YEARS. EFFECTIVE NOV. 16, 1999.

[11] The notice went on to advise the respondent that he would be required to pay a reinstatement fee of $100 to obtain his licence after the three-year suspension period ended and that he would also be required to complete the impaired driving program for a fee of $475.

[12] The respondent paid both fees and completed the impaired driving program. After his three-year suspension had expired, the Registrar, "satisfied" that the requirements of s. 41.1(1) had been met, reinstated his driver's licence in 2003.

[13] Following the reinstatement of his licence, the respondent purchased a home for himself and his family in a rural community practically inaccessible except by private motor vehicle.

[14] On October 17, 2005, over two years after his licence had been reinstated, the Registrar sent the respondent another notice, this time advising him that he was "under a lifetime suspension". This notice was accompanied by a letter from the Deputy Registrar of Motor Vehicles explaining that a recent review of Ministry records had uncovered the fact that the respondent had been convicted of three motor vehicle related Criminal Code offences in the past ten years and that the Act provided for "an indefinite (lifetime) suspension that is reducible to 10 years if certain conditions are met". The letter explained that the method used to store and protect the young offender record was manual and that the fact that he had three convictions had not been observed when his three-year suspension was imposed in November of 1999.

[15] The respondent was informed by the Registrar that his licence was therefore suspended indefinitely from the date of his third conviction in 1999. Application for Judicial Review

[16] The respondent brought an application for judicial review before the Divisional Court requesting an order of mandamus requiring the Registrar to reinstate his licence.

[17] The court found that when he entered his plea of guilty, the respondent had been led to believe that he would be treated for all purposes as a second offender. That belief, said the Divisional Court, was reinforced by the actions of the Ministry when his driver's licence was reinstated following the three- year suspension.

[18] The Divisional Court found that on the basis of his understanding of the consequences of his plea, the respondent had [page272] structured his affairs in the belief that he had paid the price of his misconduct and that he was entitled to move on. Though accepting the Ministry's contention that s. 41(1)(h) of the Act was mandatory, the court held that as a result of the effect of the "extraordinary, if not unique . . . constellation of factors", the respondent had been denied the "right to fair and reasonable treatment".

[19] The Divisional Court concluded that the Ministry had acted "unreasonably" in cancelling his driver's licence and the respondent was therefore entitled to an order setting aside the notice of suspension and reinstating his driver's licence. Issue

[20] The Ministry appeals, with the leave of this court, and submits that there is no authority for the Registrar, the Ministry or the Divisional Court to reinstate the respondent's driver's licence in the face of the statutorily imposed minimum suspension period under s. 41(1)(h) of the Act. Analysis

[21] The Ministry relies on the literal wording of s. 41(1). That provision imposes an automatic indefinite suspension that leaves neither the Ministry nor the Registrar with any discretion. The Ministry submits that the moment the respondent was convicted of his third offence in 1999, his licence was "thereupon suspended". It follows, argues the Ministry, that however unfortunate or unfair to the respondent, nothing that occurred after what was, both in fact and in law, a third conviction is capable of supporting the respondent's claim for the reinstatement of his licence.

[22] I agree with the Ministry that in the usual course, s. 41(1)(h) imposes an automatic indefinite suspension upon a third conviction and that the Registrar has no discretion in the application of this provision to particular individuals. However, I cannot accept the Ministry's submission that s. 41(1)(h) of the Act forecloses the respondent's claim in the unusual circumstances of this case. In my view, the Ministry's argument fails to take into account all of the relevant facts and all of the relevant features of the statutory scheme governing the suspension and reinstatement of drivers' licences.

[23] It is undisputed that when the respondent entered his plea of guilty in 1999, everyone -- the Crown attorney, the respondent, his counsel and the trial judge -- proceeded on the basis that his conviction would be treated as a second conviction for the purpose of sentencing. It may well be that had the Ministry's records revealed at this time (as they should have) that this was in fact the respondent's third conviction, nothing that was said or [page273] done at the time of plea or sentence could have saved him from the automatic application of the indefinite suspension provision under s. 41(1)(h) of the Act.

[24] However, through an unrelated error in its record keeping, the Ministry likewise proceeded on the basis that this was the respondent's second conviction. The Ministry informed the respondent that his licence would be suspended for the period applicable to a second conviction and then reinstated his licence after he had complied with all of the statutory requirements applicable to a second conviction.

[25] Upon discovering its own error some two years later, was it open to the Ministry to revoke the respondent's licence so as to undo all that had been done and revert to the situation that existed four years earlier when the respondent entered his plea? In my view, it was not.

[26] Section 41.1(1) makes it clear that unlike the suspension provisions in s. 41(1), there is nothing automatic about reinstatement. Before reinstating the licence, the Registrar had to be "satisfied" that the respondent had completed all of the "prescribed assessments and remedial programs" and [that] he met the "prescribed requirements" for a driver's licence.

[27] The Registrar acted on the statutory power conferred by s. 41.1(1) and issued the respondent a driver's licence. Having treated the conviction as a second conviction and the Registrar having been satisfied that the licence should be reinstated pursuant s. 41.1(1), it is my view that the Ministry cannot now revert to what the Registrar should have done in 1999. This would allow the Ministry to completely ignore the earlier official acts of the Registrar in suspending the respondent's licence for three years and then reinstating it.

[28] I see nothing in the Act that specifically gives the Registrar the power to revoke a driver's licence that the Registrar has reinstanted. The automatic mandatory suspension periods in s. 41(1) are explicitly made subject to the reinstatement provision in s. 41.1(1).

[29] When the Registrar acted upon its statutory power to reinstate the respondent's licence, particularly in the light of all that had gone on before, the respondent was entitled in law to act on the basis that he had a valid driver's licence. As the old Latin maxim has it, omnia praesumuntur rite et solemniter esse acta: all acts are presumed to have been done rightly and regularly.

[30] While it is admittedly not on all fours with the facts of the present case, the remarks of this court in Chippewas of Sarnia Band v. Canada (Attorney General) (2000), 2000 CanLII 16991 (ON CA), 51 O.R. (3d) 641, [2000] O.J. No. 4804 (C.A.), at para. 258, relating to administrative errors and the need for finality and certainty are apposite: [page274]

Apparently valid acts of public officials are relied upon by the members of the public at large in planning their affairs. Official documents are taken at face value. The purported exercise of a statutory or prerogative power creates legitimate expectations that the law will protect. The administration of government is a human act and errors are inevitable. The rights of a party aggrieved by the error must be reconciled with the interests of third parties and the interests of orderly administration.

[31] As the Divisional Court observed, on the unusual facts of this case, it would be entirely unfair and unjust to allow the Ministry to interpret the Act as the Ministry suggests. The respondent certainly cannot be faulted for operating under the universally shared assumption, induced by a variety of errors including the Ministry's own error in record keeping, that his conviction was being treated for all purposes as a second, rather than a third, conviction. He structured his affairs on the basis that his licence, which appeared to have been properly reinstated pursuant to the Act, was valid. The Ministry should not be permitted to ignore the steps taken by the Registrar and disavow the Registrar's earlier exercise of statutory authority of reinstating the respondent's licence. Conclusion

[32] For the foregoing reasons, I would dismiss the appeal. If the parties are unable to agree as to costs, we will receive brief written submissions from the respondent within ten days of the release of these reasons and from the appellant within five days thereafter.

Appeal dismissed.