Court File and Parties

COURT FILE NO.: CV-23-00708835-0000 DATE: 20241104 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Matthew J. Follwell Applicant – and – The King in the Right of Ontario as Represented by the Minister of Transportation Respondent

Counsel: David Costa, for the Applicant Waleed Malik and Tess Moffit, for the Respondent

HEARD: October 4, 2024

REASONS FOR DECISION

Merritt J.

OVERVIEW

[1] On July 18, 2022, the Applicant Matthew J. Follwell was convicted of impaired driving in New York State, U.S.A. (“New York”). As a result of that conviction, the Applicant’s Ontario driver’s licence was suspended pursuant to s. 41 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

[2] The Applicant seeks a writ of certiorari to quash the suspension of his driver’s license on February 9, 2023, and alternatively declarations relating to the invalidity of the suspension for several reasons.

DECISION

[3] The Application is dismissed.

BACKGROUND FACTS

[4] The Applicant is a practicing Emergency Room physician in Barrie and is currently operating as a Radiation Oncologist and Chief of Oncology.

[5] On July 18, 2022, the Applicant was charged with offences pursuant to the Vehicle and Traffic Law of New York and specifically “VTL 1160 OE” and “VTL 1192 01” (the “July 18, 2022 Offences”).

[6] The offence pursuant to VTL 1160 OE relates to an improper turn and is not relevant on this application.

[7] The offence pursuant to s. VTL 1192 01 results from the operation of a motor vehicle while one’s ability to do so is impaired by the consumption of alcohol (“Driving While Ability Impaired” or “DWAI”).

[8] The Applicant pled guilty to Driving While Ability Impaired under s. VTL1192 01.

[9] The Applicant was not charged with an offence pursuant to s. VTL 1192 02 which is driving while intoxicated, meaning having .08 blood alcohol or greater.

[10] As a result of the operation of s. 41 of the HTA and the Reciprocal Agreement between Ontario and New York entered into under s. 40 of the HTA (the “Reciprocal Agreement”), the Applicant’s driver’s licence was suspended for one year by the Registrar of Motor Vehicles in Ontario (the “Registrar”) effective December 14, 2022.

[11] The Notice of Suspension sent to the Applicant states that his “driver’s licence is suspended under section 41 of the Highway Traffic Act for a period of 1-year, effective Dec. 14, 2022.” The reason provided is: “You have been convicted in the State of New York of Driving or having care or control of a motor vehicle or vessel while ability impaired” (the “Notice”).

[12] The suspension is now over. The Applicant has not been convicted of any offence in Ontario with respect to the July 18, 2022 Offences in New York.

POSITIONS OF THE PARTIES

[13] The Applicant acknowledges the Registrar does not have discretion to determine whether the offences in New York are equivalent to any offences in Ontario. However, his position is that it was unreasonable for the Registrar to suspend his licence for one year based on an offence in New York which, had it occurred in Ontario, would have resulted in only a three-day licence suspension.

[14] The Applicant seeks various alternative relief including a declaration that the Registrar’s decision to suspend a licence is discretionary, administrative and subject to review by this court, a declaration that a requirement of equivalency be read into the HTA and that the Registrar erred in not doing so, and declarations that the Registrar breached the double criminality rule, the rules of natural justice and the Applicant’s rights under the Canadian Charter of Rights and Freedoms, s. 7, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c. 11 (the “Charter”).

[15] The Applicant submits that s. 40 of the HTA is ambiguous on the issue of “equivalency” and the ambiguity should be resolved in his favour.

[16] The VTL 1192 offence in New York actually contains two different offences: VTL 1192 01 (which is DWAI) and VTL 1192 02 (which is driving while intoxicated/having .08 blood alcohol or greater).

[17] The Applicant submits that VTL 1192 01 is the equivalent of an offence under s. 48 of the HTA and would carry a short driver’s licence suspension (i.e., a 3-day suspension for a first offence) whereas VTL 1192 02 is equivalent to offences under the Criminal Code, R.S.C. 1985, c. C-46 (the “Criminal Code”).

[18] The Applicant says the offence he pled guilty to in New York (VTL 1192 01) would carry the 3-day driver’s licence suspension if he committed the same offence in Ontario. He says there is no equivalency between the 1-year suspension of his licence imposed in Ontario and the offence he committed in New York.

[19] The Respondent says the suspension is automatic, and there is no legal basis to set it aside.

[20] The Applicant appears to believe that because of the actions taken by the Registrar in suspending his driver’s licence, he now has a criminal conviction in Canada. The Respondent says the Applicant does not have a criminal conviction in Canada as a result of the offences in New York and I suspect this is true.

[21] There is no evidence before me that the Applicant has a criminal conviction in Canada, and it is difficult to understand how the Registrar’s actions could cause the Applicant to be convicted of an offence under the Criminal Code. In any event, I need not resolve this issue to decide the Application; the issues here relate to the licence suspension only.

THE ISSUES

[22] There are two issues:

1. Did the Registrar commit a legal error or act unreasonably in suspending the Applicant’s licence?

2. Did the Registrar breach the Applicant’s Charter rights in suspending the Applicant’s licence?

ANALYSIS

Issue 1: No Legal Error

[23] Section 40 of the HTA provides:

(1) The Minister may enter into a reciprocal agreement with the government of any province or territory of Canada or of any state of the United States of America providing for,

(a) the sanctioning by the licensing jurisdiction of drivers from that jurisdiction who commit offences in the other jurisdiction; […]

(2) The provisions of this Act and the regulations with respect to the licensing of drivers are subject to any agreement made under this section.

[24] Section 41 of the HTA provides:

(1) The driver’s licence of a person who is convicted of an offence,

(d) under a provision that is enacted by another jurisdiction, including by a municipality in another jurisdiction, and is designated in a reciprocal agreement entered into under section 40;

is thereupon suspended, subject to any continuation under subsection (4.1) or early reinstatement under section 57

(f) upon the first conviction, for one year;

[25] There is no dispute that Ontario and New York entered into a Reciprocal Agreement (the “Agreement”) which provides:

Article 3.1 Declarations of guilt concerning the following offences shall be reported to the home jurisdiction by the jurisdiction in which the offence was committed;

3.1.1 Major offences

Offences relating to the operation of a motor vehicle while under the influence of alcohol or drugs, under Section 1192 of the Vehicle and Traffic Law of New York (hereinafter referred to as the “Vehicle and Traffic Law”) and under Sections 253 and 254 of the Criminal Code of Canada (hereinafter referred to as the “Criminal Code”).

[26] It is important to note that Article 3.1.1 references all offences under s. 1192 of the Vehicle and Traffic Law of New York.

[27] Article 3.1.1 does not break s. 1192 down into VTL 1192 01 offences and VTL 1192 02 offences, but simply refers to offences under “Section 1192 of the Vehicle and Traffic Law of New York”.

[28] To be clear, Article 3.1.1 does not break down s. 1192 according to which parts of it are equivalent to offences under the HTA (i.e., VTL 1192 01) and which parts of it are equivalent to offences under the Criminal Code (i.e., VTL 1192 02).

[29] Article 3.3 of the Agreement provides:

For the purposes of driver licensing records, each jurisdiction shall recognize a declaration of guilt in the other jurisdiction concerning one of its residents as if the violation were committed in the home jurisdiction. Points shall be assessed and suspensions or revocations issued in accordance with the appendix of this Agreement.

[30] The appendix to the Agreement contains a chart which lists various offences in New York and the corresponding action to be taken in Ontario. It provides:

In accordance with Article 3 of the Agreement, the Province of Ontario will take the following actions with respect to its residents convicted of offences in New York.

OFFENCE PURSUANT TO THE LAWS OF THE STATE OF NEW YORK 1.1 Section 1192 of the Vehicle and Traffic Law

ACTION TAKEN IN THE PROVINCE OF ONTARIO 1.1 Law Licence suspension or suspension of the right to obtain a licence: at least one year

Conviction

[31] The Applicant submitted that he was not “convicted” but rather he pled guilty and was given a “conditional discharge”.

[32] The Application Record contains a letter from Mr. Richard C. Rozin, Esq. who is an attorney in New York and represented the Applicant with respect to the offences in issue. The letter from Mr. Rozin is attached as an exhibit to the affidavit of Jonathan Payne who is a clerk employed by counsel for the Applicant on this application. There is no affidavit from Mr. Rozin.

[33] Subrule 39.01(7) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, requires that “[o]pinion evidence provided by an expert witness for the purposes of a motion or application shall include the information listed under subrule 53.03(2.1)”. Mr. Rozin’s letter is not in compliance with these mandatory requirements for the admission of expert evidence. Further, the fact that it was attached to another individual’s affidavit makes Mr. Rozin’s letter hearsay: 1000029174 Ontario Inc. v. Miculinic Investment Corp., 2024 ONCA 526, at para. 13.

[34] In any event, the full text of the body of the letter from Mr. Rozin is as follows:

I am an attorney licensed to practice in the State of New York and represented Matthew Follwell in a matter which arose on July 18, 2022, and was resolved in Canandaigua City Court matter. In that matter, Matthew Follwell, on December 14, 2022, pleaded guilty to the non-criminal infraction of Driving while Ability Impaired (DWIA) in violation of New York Vehicle and Traffic Law Section 1192(1). Under New York’s Vehicle and Traffic Law, DWAI is not considered to be a crime.

Based on the foregoing, Matthew Follwell does not have a United States/State of New York criminal conviction. Therefore, he should not be considered to have a Canadian criminal conviction for your reciprocity consideration.

[35] The letter from Mr. Rozin does not mention “conditional discharge” or say that the Applicant was not “convicted”. There is no expert opinion on whether a conditional discharge is a conviction. This, as foreign law, is a question of fact that must be proven by expert evidence: Gurpersaud v. Safie, 2016 ONSC 7033, at para. 8.

[36] Page 1 of the certificate from the Canadaigua City Court references “conditional discharge” under the penalty section. However, on page 2 of the same document under the heading “Conviction Date” there is a date of 12/14/2022, which is the date upon which the Applicant pled guilty. The relationship, if any, between a “conditional discharge” and a “conviction”, is unclear based on this document.

[37] The Ministry of Transportation received a notice from the Department of Motor Vehicles in New York advising that the Applicant had been convicted of an offence covered in the Reciprocal Agreement between Ontario and New York (the “Notice”). The Notice says: “Please enter this conviction on the individual’s driving record.” The Notice describes the violation as: “driving while impaired”.

[38] Given that the New York State Department of Motor Vehicles notified the Ministry of Transportation that the Applicant was “convicted” in New York State of a traffic violation covered by the Reciprocal Agreement, and in the absence of any expert opinion to the contrary, I find that the Applicant was convicted of an offence under s. 1192 of the Vehicle Traffic Law of New York.

Equivalency

[39] As set out above, after a conviction under s. 1192 of the Vehicle and Traffic Law in New York, the Agreement provides for a one-year suspension.

[40] The Applicant concedes that the former regulation, which contained some principle of equivalency of offences, was revoked and that the Registrar has no discretion to measure equivalency. The Applicant also submits that the HTA presumes equivalency and the Registrar erred by failing to respect the principle of equivalency. He says that s. 40 of the HTA is ambiguous, and the ambiguity should be resolved in his favour.

[41] The Legislature amended s. 41(1)(d) to its current version in 2009 and it no longer requires offences to be designated in regulations. Rather, since the amendment, s. 41(1)(d) suspends driver’s licences upon a conviction of an offence designated in a reciprocal agreement.

[42] Section 40 of the HTA is not ambiguous. It simply authorizes the Minister to enter into a reciprocal agreement as specified and states that the provisions of the Act and the regulations with respect to the licensing of drivers are subject to a reciprocal agreement. There is no requirement for equivalency.

Discretion

[43] The Applicant submits that the Registrar’s decision was discretionary because it was not a function of an Ontario court conviction.

[44] I do not agree that the suspension of the Applicant’s license is discretionary and subject to review and interpretation by this court.

[45] The Applicant’s licence was automatically suspended by operation of law. The Registrar did not exercise any discretion to suspend the Applicant’s licence. “The Registrar has no discretion concerning suspension of a driver’s licence. The suspension occurs by operation of law; it is not a decision of the registrar, but rather an automatic and mandatory consequence of a conviction”: A.G. v. Ontario (Minister of Transportation), 2013 ONSC 7461, 118 O.R. (3d) 449 (Div. Ct.), at para. 50.

Natural Justice

[46] The imposition of the suspension under s. 41 of the Act cannot be attacked on the basis that it failed to satisfy principles of natural justice and fairness because the suspension is imposed automatically by the statute: Horsefield v. Registrar of Motor Vehicles (1999), 44 O.R. (3d) 73 (Ont. C.A.).

[47] If the Applicant were correct and the decision to suspend his licence was discretionary, an application based on breaches of the rules of natural justice and fairness would have to be brought in the Divisional Court by way of judicial review under the Judicial Review Procedure Act, R.S.O. 1990, c. J.1: J.N. v. Durham Regional Police Service, 2012 ONCA 428, 284 C.C.C. (3d) 500, at para. 16. I am not saying that an application for judicial review is appropriate. An application for judicial review is not appropriate because the Registrar’s decision was not discretionary.

[48] I find that the Registrar made no legal error in imposing the licence suspension and the rules of natural justice do not apply.

Issue 2: No Breach of Charter Rights

[49] The Applicant submits that his licence suspension impedes his ability to work as an emergency room doctor and violates his rights under ss. 6, 7, 11(b) and 12 the Charter.

[50] Section 7 of the Charter provides everyone with “the right to life, liberty and security of the person and the right not to be deprived of thereof except in accordance with the principles of fundamental justice”.

[51] Suspending a driver’s licence does not engage s. 7 of the Charter. There is no constitutional right to driver’s licence. The right to drive is not a “liberty” within the meaning of s. 7 of the Charter: Horsefield, at paras. 21-28, and Condo v. Ontario (Registrar of Motor Vehicles) (1999), 123 O.A.C. 111 (Ont. Div. Ct.), at paras. 8-9.

[52] Section 7 of the Charter does not protect economic interests such as the right to carry on a profession: Mussani v. College of Physicians and Surgeons of Ontario (2004), 74 O.R. (3d) 1 (Ont. C.A.), at paras. 39-60; Tanase v. College of Dental Hygienists of Ontario, 2021 ONCA 482, 156 O.R. (3d) 675, at paras. 35-43.

[53] The Applicant submits that his mobility rights under s. 6 of the Charter have been violated. Section 6(2) of the Charter provides that every “citizen of Canada…has the right…(b) to pursue the gaining of a livelihood in any province.”

[54] Section 6(3) makes it clear that the rights under s. 6(2) are subject to “(a) any laws or practices of general application in force in a province other than those that discriminate among persons primarily on the basis of province of present or previous residence.”

[55] A driver’s licence suspension is a law of general application does not engage s. 6 because it does not discriminate on the basis of province of present or previous residence: Paganelli v. Ontario (Registrar of Motor Vehicles), [1987] O.J. No. 2424 (Ont. Div. Ct.), at para. 5.

[56] The Applicant submits that suspending his licence breached the double criminality rule. That rule is a statutory requirement under the Extradition Act, S.C. 1999, c. 18 and does not apply here: U.S.A. v. Yang (2001), 56 O.R. (3d) 52 (Ont. C.A.), at para. 5.

[57] The protection against double jeopardy contained in s. 11(h) of the Charter also does not apply here. A provincial licence suspension is a civil disability. It is not a criminal conviction or a punishment for the purposes of s. 11(h). It is not an additional penalty imposed for a violation of the criminal law: Condo, at paras. 12-14.

[58] The Applicant’s rights under s. 12 of the Charter not to be subjected to any cruel and unusual treatment or punishment have not been violated. Cases involving mandatory minimum sentences and terms of imprisonment are distinguishable from the present case; imprisonment is a punishment while suspending a licence is not. Suspending a licence is neither a punishment nor a treatment for the purposes of s. 12, nor is it cruel or unusual: Condo, at paras. 18-26 and Paganelli, at para. 7.

[59] Even if there were arguable breaches of the Charter in this case, evidence of the impact is required: Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, at para. 34.

[60] Here, the Applicant has not submitted any admissible evidence of the impact of a licence suspension on him. The Applicant did not file an affidavit on this Application. The only affidavit filed was the affidavit of the law clerk Mr. Payne which contains hearsay statements about the impact of the licence suspension on the Applicant. On an application, hearsay evidence is only admissible regarding facts that are not contentious: r. 39.01(5) of the Rules of Civil Procedure, and TSCC No. 1724 v. Evdassin, 2020 ONSC 1520, 18 R.P.R. (6th) 136, at para. 46.

[61] I find that the Applicant’s Charter rights have not been breached.

COSTS

[62] I encourage the parties to agree on costs. If they cannot agree, I will consider brief written submissions. These costs submissions shall not exceed five pages in length (not including any bill of costs or offers to settle). Any party claiming costs shall file their written submissions within ten days of the date of these reasons. Any responding submissions shall be delivered within five days of receipt of the other party’s costs submissions. Any reply to submissions shall be delivered within three days of receipt of responding submissions and shall be no more than three pages long. Costs submissions shall be uploaded to CaseCenter and delivered to me by way of email to my Judicial Assistant.

Merritt J.

Released: November 4, 2024