COURT FILE AND PARTIES

COURT FILE NO.: 1483-13

DATE: 2013/10/17

SUPERIOR COURT OF JUSTICE – ONTARIO

RE: Joshua Lonnie May Borton (Applicant)

• and-

Her Majesty the Queen in Right of Ontario (Respondent)

BEFORE: Justice A. D. Grace

COUNSEL
Joshua Borton, in person

Sarah Valair, for the Respondent

HEARD: October 11, 2013

ENDORSEMENT

[1] Mr. Borton seeks judicial review of the decision of the Deputy Registrar of Motor Vehicles (“Ontario”) to suspend Mr. Borton’s driver’s licence pursuant to s. 32(5) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”) by a single judge of this court pursuant to s. 6(2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”). That section provides:

An application for judicial review may be made to the Superior Court of Justice with leave of a judge thereof, which may be granted at the hearing of the application, where it is made to appear to the judge that the case is one of urgency and that the delay required for an application to the Divisional Court is likely to involve a failure of justice.

[2] By way of procedural background, an earlier version of Mr. Borton’s application was before this court previously. Endorsements of Carey J. and Goodman J. predated mine of September 10, 2013. I directed Mr. Borton to comply with specified rules contained within the Rules of Civil Procedure and adjourned the matter until October 22, 2013.

[3] Mr. Borton responded with a motion returnable September 17, 2013. At that time, Madam Justice Leitch granted leave to Mr. Borton to amend his application for judicial review and adjourned same to October 11, 2013 and thereafter to the sittings of the Divisional Court in London during the week of November 18, 2013 if Mr. Borton “is not successful in obtaining relief on October 11”. I assume the reference to “relief” is leave under s. 6(2) of the JRPA. In other words, if Mr. Borton’s argument with respect to urgency and the consequences of delay do not carry the day, his application is to be transferred to the Divisional Court pursuant to s. 6(3) of that statute.

[4] At the outset, Mr. Borton advised that he had not received Ontario’s responding material because he had been forced out of his residence on or about October 7, 2013. It turned out that he received an electronic copy but said that he did not have access to the material except on his cell phone/electronic device. He said it was exceedingly difficult to read it. I gave him approximately one and three-quarter hours to do so using the printed copy Ms. Valair kindly gave him.

[5] Ontario took the position that Mr. Borton could not satisfy the test articulated in s. 6(2) of the JRPA. Its submissions are set forth in paragraphs 11-25 of its factum.

[6] I disagree with Ontario on this point. There is clear urgency demonstrated by the materials. It is not disputed that:

(a) Mr. Borton is a tow truck driver;

(b) Mr. Borton requires a driver’s licence to pursue that vocation;

(c) Mr. Borton’s licence has been suspended since July 3, 2013;

(d) Mr. Borton cannot obtain his licence – even on a temporary basis – unless he accepts the decision that he is attempting to reverse in these proceedings;

(e) Mr. Borton’s statement in paragraph 22 of his September 11, 2013 affidavit that he has sustained and will sustain financial loss is unchallenged.

[7] A loss of a business (Mr. Borton is self-employed) or extreme personal hardship, amply demonstrate “urgency”.

[8] Section 6(2) of the JRPA contains an additional element: delay if the matter is transversed to the Divisional Court that is likely to involve a failure of justice.

[9] While Leitch J. appears to have contemplated the hearing of this matter during the next sittings of that court during the week of November 18, 2013, this matter is not ready to be heard by a panel. The requisite copies of the materials have not been filed. I have not seen a certificate of perfection: the filing of which is a precondition to the matter being placed on a list for hearing. Only then does the registrar give a notice of listing for hearing (see rules 68.04(7) and 68.05).

[10] Neither the parties – nor I – know whether there is available time during the next sittings even if the logistical problems can be overcome. If not, Mr. Borton’s application will have to wait until the April 2014 sittings of the Divisional Court in London unless this proceeding is moved to another locale.

[11] While Mr. Borton did not file an affidavit saying that he had lost his home, it seems obvious to me that Mr. Borton is suffering economically and that the uncertainty of a hearing date in the Divisional Court creates a real risk of there being a failure of justice. The prejudice to Mr. Borton grows with each passing day; prejudice he can only mitigate by capitulating or by finding an available day for argument.

[12] In the circumstances of this case, I am satisfied that Mr. Borton has met the test articulated in s. 6(2) of the JRPA. The required leave is given: Apotex Inc. v. Ontario Minister of Health and Long Term Care, [2006] O.J. No. 5141 (S.C.J.) at paras. 4 and 5; Griffin v. Ontario (Minister of Transportation), [2004] O.J. No. 54 (S.C.J.).

[13] I turn to the merits of the application.

[14] The chronology of events is not, for the most part, in dispute.

[15] Mr. Borton is a young, 24-year-old man with an unenviable driving history.

[16] According to the evidence, Mr. Borton was involved in eleven motor vehicle accidents between March 4, 2008 and May 29, 2012. Seven of those occurred during the period from February 14, 2012 to May 29, 2012.

[17] Shortly before the final accident, the London Police Service (“LPS”) sent the Registrar of Motor Vehicles a request for Driver’s Licence Review. The LPS’s observations concerning Mr. Borton included the following words:

During interactions with this individual...it is obvious he is fidgety and very hyper. Police have information that he suffers from ADHD. Although most collisions “appear” to be the fault of other drivers poilce (sic) feel that an assessment of this individuals (sic) driving abilities is necessary.

[18] I pause here to refer to some statutory provisions.

[19] Part IV of the HTA, deals with licences. Section 31(a) of the HTA provides in part:

The purpose of this Part is to protect the public by ensuring that:

(a) the privilege of driving on a highway is...retained by, only those persons who demonstrate that they are likely to drive safely...

[20] Section 32(5) of the HTA allows the Minister to require the holder of a driver’s licence to submit to examinations and to meet other requirements prescribed by regulation.

[21] As permitted by statute, the Minister has delegated that authority to the Registrar and any Deputy Registrar of Motor Vehicles.

[22] Ontario Regulation 340/94 (the “Regulation”) also relates to drivers’ licences.

[23] Section 14(1) provides that a holder of a driver’s licence must not suffer from any condition – whether physical, mental, emotional or nervous – which significantly interferes with their ability to safely operate a motor vehicle.

[24] Section 14(2) allows the Minister to require that the holder of a licence provide evidence of their ability. That evidence may take various forms including medical information and a driving assessment (see ss. 14(2)(b) and 15 (1)(b) and (e)).

[25] A Deputy Registrar of Motor Vehicles commenced that process by letter dated June 19, 2012. Mr. Borton was advised that a review of his driving privilege was being undertaken.

[26] Mr. Borton’s physician – Dr. Nelson – provided information both by letter and using the form required by the Deputy Registrar. Dr. Nelson confirmed that Mr. Borton was affected by ADHD and advised that he had suggested to Mr. Borton that he undergo a driving assessment.

[27] The Deputy Registrar of Motor Vehicles required Mr. Borton to undergo a driving evaluation. He did so.

[28] The assessment was completed by occupational therapist (“O.T.”) Kerry Ann Suteu. Various strengths and weaknesses of Mr. Borton were noted. The assessor observed that Mr. Borton “has many errors related to bad driving habits but also has a driving history that appears to be related to poor decision making, impulsivity and inattention to detail.” In her April 12, 2013 report, Ms. Suteu recommended that:

(a) Mr. Borton participate in five driving lessons with a driving instructor, under the supervision of an O.T.; and

(b) Mr. Borton be reassessed at a driving assessment centre.

[29] On April 29, 2013, the Deputy Registrar of Motor Vehicles (Ms. Taggart) notified Mr. Borton that he was required to have “his occupational therapist” send to the Medical Review Section (“MRS”) of the Ministry of Transportation “confirmation of when remedial lessons will start and duration of time required to have completed.”

[30] Mr. Borton was advised that his driver’s licence would be suspended on May 29, 2013 if he did not comply.

[31] On May 21, 2013, Ms. Suteu advised MRS that Mr. Borton had scheduled lessons but that completion might take until September 6, 2013 due to Mr. Borton’s financial situation.

[32] On May 30, 2013, Ms. Taggart advised Mr. Borton that “the time limit for filing the driving evaluation relating to your driving ability” had been extended to September 6, 2013.

[33] The extension was clearly given because of Ms. Suteu’s update.

[34] Things changed. Mr. Borton decided not to pursue lessons with or through Ms. Suteu’s employer CBI Health Group (“CBI”) and the MRS was advised of that fact by facsimile dated June 15, 2013.

[35] There appears to have been no other communication until July 3, 2013. On that date a Notice of Suspension of Driver’s Licence (“NOS”) was sent to Mr. Borton. He was advised that his driver’s licence had been suspended under s. 32(12) of the HTA because of a “failure to submit a satisfactory medical report.” He was also informed that his licence would be reinstated once a satisfactory medical report was in hand.

[36] Ontario filed a note log detailing conversations with Mr. Borton. The note log reflects a July 11, 2013 conversation. Mr. Borton pointed out – as Ontario conceded during argument – that section 32(12) of the HTA had been repealed. The log detailed Mr. Borton’s objections to the suspension after being advised that it was “due to discontinuation of Rehab.”

[37] On July 12, 2013, Mr. Borton sent a letter to the Ministry of Transportation enclosing a medical report from Dr. Nelson. Mr. Borton requested immediate reinstatement of his driver’s licence “due to the fact that my medical condition in no way impairs my ability to drive a motor vehicle safely.”

[38] Mr. Borton did not receive the desired response. Ms. Taggart’s July 26, 2013 letter advised Mr. Borton that Ontario required “a satisfactory driving evaluation from a rehabilitation centre.” A list of locations was provided.

[39] Soon afterward, Mr. Borton commenced this legal proceeding.

[40] As noted, Ontario concedes that the NOS referenced a repealed subsection of the HTA. The intended subsection was s. 32(5)(b)(ii). I have already referenced the introductory words of s. 32(5) in paragraph 20 of this endorsement. Together with the accompanying Regulation, the statutory scheme permitted Ontario to require Mr. Borton to submit to examinations and to undergo a driving assessment so that it could be determined whether he was likely to drive safely.

[41] Section 32(5)(b)(ii) authorizes the Minister – (or the Minister’s designate in light of other statutory provisions) - to suspend the licence of someone who fails “to successfully complete the examinations or fails to meet the other prescribed requirements.”

[42] Mr. Borton first submitted that the statutory scheme did not authorize the Deputy Registrar to require that Mr. Borton complete remedial lessons. I disagree. The referenced sections of the HTA and the Regulations are broadly worded. The Deputy Registrar is not limited to a delineated list of items.

[43] Furthermore even if Mr. Borton is correct insofar as remedial lessons are concerned, the Deputy Registrar can require that drivers undergo a driving assessment.

[44] Deficiencies of sufficient importance were identified which caused the assessor to recommend that Mr. Borton be reassessed. That requirement is clearly part of the Deputy Registrar’s mandate. Mr. Borton’s attack on the Deputy Registrar’s scope of authority fails. Nonetheless, should the Deputy Registrar’s decision be overturned?

[45] The standard of review of the Deputy Registrar’s decision is reasonableness: Dunsmuir v. New Brunswick, 2009 SCC 9 at paras. 51-54; Griffin v. Ontario (Ministry of Transportation), supra at para. 35.

[46] I am of the view that the Deputy Registrar’s decision to suspend Mr. Borton’s licence was reasonable for these reasons:

(a) Mr. Borton’s driving record was remarkable in a dubious way. In fairness to Mr. Borton, involvement in a number of accidents is not, on its own, determinative. However, in Mr. Borton’s case the number was very high, the time frame very short and the observations of the LPS concerning;

(b) Dr. Nelson himself recommended a driving assessment in his first July 25, 2012 communication to the Ministry;

(c) While the formal assessment was not altogether negative (a number of strengths were identified) some serious concerns were expressed. Mr. Borton did not maintain a safe stopping distance between other vehicles, he checked blind spots inconsistently and signalled either too late or not at all;

(d) That those items compromise public safety should be self evident;

(e) The assessor did not recommend immediate suspension. Instead, she recommended five (5) lessons under the supervision of an O.T. and a driving reassessment;

(f) Time was given to Mr. Borton to complete those steps. The suspension occurred at a time when Mr. Borton appeared to be unwilling to take lessons. Mr. Borton suggested that the Deputy Registrar jumped to a conclusion that Mr. Borton was uncooperative simply because he decided not to utilize the services of CBI. That isn’t so. Had Mr. Borton contacted the Deputy Registrar prior to July 3, 2013 and provided the name of another qualified O.T. and confirmation of enrolment in five (5) remedial lessons, his submission might have some force. However, he did not do so. There is no evidence of any communication by or on behalf of Mr. Borton between CBI’s June 15, 2013 communication and the July 3, 2013 suspension.

[47] It was clear from CBI’s assessment that CBI did not recommend immediate suspension of Mr. Borton’s driver’s licence so that he might participate in a program of “rehabilitation.”

[48] Withdrawal from that program followed by silence provided ample justification for the decision to suspend Mr. Borton’s driver’s licence on July 3, 2013. The Deputy Registrar was not required to wait until September 6, 2013 to see if Mr. Borton had a change of heart.

[49] During Ontario’s argument, I expressed concern about the form of the NOS. As mentioned, it referred to an incorrect and repealed subsection of the HTA and advanced a reason that was not set forth in letters sent by the Deputy Registrar to Mr. Borton on April 29 or May 30, 2013.

[50] At first blush, it appeared Mr. Borton’s July 12, 2013 letter and attached medical report of Dr. Nelson might have satisfied the precondition set forth in the NOS for the reinstatement of Mr. Borton’s licence.

[51] However, the factual picture is incomplete. Written communication pre and post dated the NOS. I am satisfied that Mr. Borton knew of the Deputy Registrar’s concerns and that two steps had to be completed: first, a course of driving instruction and second, a further driving evaluation thereafter.

[52] Not all of the parties’ communications were in writing. There were conversations following the NOS. Mr. Borton sought and received an explanation for its delivery. He knew that it resulted from his apparent decision to withdraw from a course of remedial lessons and from the fact his driving ability had not been reassessed.

[53] Section 3 of the JRPA provides in part:

On an application for judicial review in relation to a statutory power of decision, where the sole ground for relief established is a defect in form or a technical irregularity, if the court finds that no substantial wrong or miscarriage of justice has occurred, the court may refuse relief

[54] Several of the Deputy Registrar’s communications could and should have been more complete and/or accurate. The April 29, 2013 letter mentioned “remedial lessons”, not a driving assessment. The May 30, 2013 letter mentioned only a “driving evaluation.” The NOS did not mention either and inexplicably referenced a subsection that appears to have been repealed more than a decade ago.

[55] It is no surprise that Mr. Borton was confused as evidenced by his calls for clarification and an explanation.

[56] However, during the July 11, 2013 conversation, Mr. Borton was told that the decision to suspend was triggered by Mr. Borton’s decision to discontinue “rehab.” The July 26, 2013 letter specifically told Mr. Borton of the requirement that he provide a satisfactory driving evaluation.

[57] In the final analysis, I am satisfied that there was a defect in the form of the NOS or that it was technically irregular. Given the other communications, I am satisfied that no substantial wrong or miscarriage of justice has occurred. Stelco Inc. v. Ontario (Superintendant of Pensions) (1992), 1992 8516 (ON SCDC), 99 D.L.R. (4th) 314 (Ont. Div. Ct.).[^1] In summary, the Deputy Registrar had and properly and reasonably exercised the power to suspend Mr. Borton’s driver’s licence.

[58] For the reasons given, Mr. Borton’s application for judicial review is dismissed.

[59] Given my observations, I am hopeful that Ontario will seriously consider forgoing any claim for costs despite being successful. If costs are sought, arrangements for a one-hour attendance should be made through the trial coordinator.

“Justice A. D. Grace”

Justice A. D. Grace

Date: October 17, 2013

[^1]: See, too, AON Inc. v. Peterborough (City), [1999] O.J. No. 1225 (Gen. Div.); Scheerer v. Waldbillig (2006), 2006 6460 (ON SCDC), 265 D.L.R. (4th) 749 (Ont. Div. Ct.); Martin v. Ontario Municipal Employees Retirement Board, [2002] O.J. No. 2286 (Div. Ct.); Poplar Point Ojibway Nation v. Ontario, [1993] O.J. No. 601 (Div. Ct.).