APPEALS

Highway Traffic Act

R.R.O. 1990, REGULATION 574

APPEALS

Historical version for the period April 21, 2008 to June 15, 2008.

Last amendment: O. Reg. 102/08.

This is the English version of a bilingual regulation.

1. In this Regulation,

“Board” means the Licence Suspension Appeal Board. R.R.O. 1990, Reg. 574, s. 1.

Note: On June 16, 2008, section 1 is revoked and the following substituted:

1. In this Regulation,

“Board” means the Licence Appeal Tribunal. O. Reg. 102/08, s. 1.

1.1 A decision made by the Minister under subclause 32 (5) (b) (i) of the Act is prescribed as a kind of decision a person may appeal under section 50 of the Act. O. Reg. 102/08, s. 1.

See: O. Reg. 102/08, ss. 1, 2.

PART I
APPEALS UNDER SECTION 50

2. This Part applies to appeals to the Board under section 50 of the Act. O. Reg. 510/96, s. 1.

2.1 (1) One member of the Board constitutes a quorum. O. Reg. 510/96, s. 1.

(2) If two members hear an appeal and do not agree on a decision, the decision of the presiding chair of the panel is the prevailing decision of the Board. O. Reg. 510/96, s. 1.

(3) No more than three members of the Board shall hear an appeal. O. Reg. 510/96, s. 1.

3. (1) An appeal to the Board under section 50 of the Act shall be commenced by serving upon the Board written notice of the appeal. R.R.O. 1990, Reg. 574, s. 3 (1).

(2) A notice of appeal under subsection (1) shall be accompanied by a fee of $25 payable to the Minister of Finance. R.R.O. 1990, Reg. 574, s. 3 (2); O. Reg. 510/96, s. 2 (1).

(3) Upon receipt of a notice of appeal under subsection (1), the Board shall forthwith notify the Minister or Registrar, as the case may be, and the person notified shall forthwith provide the Board with all relevant documents and other material in his or her possession. R.R.O. 1990, Reg. 574, s. 3 (3).

(4) In any appeal under subsection (1), the Board shall serve upon the person making the appeal notice of the time and place of the hearing, which shall be within thirty days of the serving of the notice of appeal, except where the person making the appeal consents to a longer period of time. R.R.O. 1990, Reg. 574, s. 3 (4).

(5) A person making an appeal may make written representations to the Board and is not required to attend the hearing. R.R.O. 1990, Reg. 574, s. 3 (5).

(6) At any hearing under this section, the person making the appeal has the right to attend and make representations and, subject to subsection (7), to adduce evidence respecting the appeal either personally or through a solicitor. R.R.O. 1990, Reg. 574, s. 3 (6); O. Reg. 510/96, s. 2 (2).

(7) At any hearing under this section, the Board shall hear only such evidence as was submitted to the Minister or the Registrar, as the case may be, respecting the matter in dispute. R.R.O. 1990, Reg. 574, s. 3 (7).

(8) The Board shall, as soon as is conveniently possible after the hearing is completed, serve by registered mail upon the person making the appeal a notice of its decision together with its reasons therefor. R.R.O. 1990, Reg. 574, s. 3 (8).

4. Where a decision of the Board is appealed to a judge of Ontario Court (General Division), the Board shall certify to the judge,

(a) the decision of the Minister or Registrar, as the case may be, that has been reviewed by the Board;

(b) the decision of the Board together with its reasons therefor;

(d) all written submissions and other material received by the Board in connection with the appeal. R.R.O. 1990, Reg. 574, s. 4.

PART II
APPEALS UNDER SECTION 50.1

General Matters

5. This Part applies to appeals to the Board under section 50.1 of the Act. O. Reg. 510/96, s. 3.

6. (1) A notice of appeal shall be accompanied by a fee of $100 payable to the Minister of Finance. O. Reg. 510/96, s. 3.

(2) The fee shall be refunded if the Board orders that the suspension be set aside. O. Reg. 510/96, s. 3.

7. (1) Any notice, document or paper required to be filed may be filed by,

(a) depositing it at the office of the Board in the City of Toronto;

(b) mailing it by registered mail addressed to the Secretary of the Board at its office in the City of Toronto; or

(2) A notice that is filed by registered mail is filed on the day the mail is received at the Board office. O. Reg. 510/96, s. 3.

8. (1) If the name and address of a solicitor for a person appealing a suspension is shown in a notice of appeal, service of any notice, document or paper may be effected upon the appellant by delivering it to the solicitor at his or her address,

(a) by mail;

(b) by leaving a copy with the solicitor or an employee in the solicitor’s office;

(d) by telephone transmission in accordance with section 10. O. Reg. 510/96, s. 3.

(2) Service by mail shall be deemed to have been made on the fifth day after the day of mailing. O. Reg. 510/96, s. 3.

(3) A notice, document or paper that is delivered by leaving a copy with a solicitor or an employee in the solicitor’s office is served at the time of delivery. O. Reg. 510/96, s. 3.

(4) A notice, document or paper that is delivered by courier shall be deemed to be served on the second day that is not a holiday following the day the courier is given the copy. O. Reg. 510/96, s. 3.

9. The Board may, upon such conditions as it thinks fit, abridge or enlarge the time for filing or serving any document or paper. O. Reg. 510/96, s. 3.

10. (1) The filing or service of any notice, document or paper required to be filed with or served on the Board or a person appealing a suspension may be effected upon the Board or a solicitor acting for the person appealing a suspension by telephone transmission of a facsimile of the notice, document or paper. O. Reg. 510/96, s. 3.

(2) A document of 16 pages or more, inclusive of the cover page, may be served by telephone transmission only between 5 p.m. and 8 a.m., unless the party to be served gives prior consent. O. Reg. 510/96, s. 3.

(3) Any telephone transmission made after 5 p.m. shall be deemed to have been made the following day. O. Reg. 510/96, s. 3.

(4) Subsection (1) does not preclude a notice, document or paper being served directly on a person appealing a suspension by telephone transmission with the prior consent of the person. O. Reg. 510/96, s. 3.

11. Any method of service or service on any person that is agreed upon by the parties is valid service. O. Reg. 510/96, s. 3.

12. The Board may, if it considers it advisable, adjourn any hearing before it until such time and place and upon such conditions as it thinks fit. O. Reg. 510/96, s. 3.

13. A person appealing a suspension has the onus of establishing the merit of the appeal. O. Reg. 510/96, s. 3.

Commencement of Appeal

14. (1) An appeal to the Board under section 50.1 of the Act shall be commenced by filing with the Board a notice of appeal,

(a) in the form provided by the Board for that purpose; or

(b) in writing setting out the information required by this section. O. Reg. 510/96, s. 3.

(2) Subject to subsection (3), a person appealing a suspension shall file, with the notice of appeal, two separate copies of all written material that the person appealing the suspension intends to use as evidence in support of the appeal. O. Reg. 510/96, s. 3.

(3) A person who elects not to submit all of the written material referred to in subsection (2) at the time of filing the notice of appeal shall indicate in the notice that not all of the supporting material has been filed and shall subsequently file with the Board two separate copies of the material or any additional material. O. Reg. 510/96, s. 3.

(4) A notice of appeal shall be signed by the person appealing and shall clearly state,

(a) the person’s name, date of birth, telephone number and address with the postal code;

(b) the person’s driver’s licence number, if the person holds a licence, and the province or state that issued the licence;

(d) the date on which the suspension commenced and the suspension number, if known;

(e) the ground of appeal set out in section 50.1 (2) of the Act that the person relies upon;

(f) whether the person requests,

(i) an oral hearing of the appeal, or

(ii) a decision based upon the review of written materials; and

(g) whether all of the supporting material that the person intends to submit in support of the appeal is being filed together with the notice, or whether any additional material remains to be delivered. O. Reg. 510/96, s. 3.

(5) Upon receipt of a notice of appeal under this section, the Board shall forthwith deliver to the Registrar a copy of the notice of appeal and a copy of the written material submitted in support of the appeal, if any. O. Reg. 510/96, s. 3.

(6) Despite subsections (2) and (3), the Board shall permit any material not previously filed with the Board, or not previously served on the person appealing, to be used in evidence at an oral hearing if the Board is of the opinion that,

(a) it is reasonable in the circumstances to do so; and

(b) any unfairness occasioned by the use of the evidence can be compensated for by an adjournment. O. Reg. 510/96, s. 3.

Medical Reports

15. (1) A report of a legally qualified medical practitioner that is to be submitted in evidence shall clearly state,

(a) the name, telephone number and address, with the postal code, of the medical practitioner;

(b) the name, date of birth and address of the person who is the subject of the report;

(c) that the medical practitioner has prepared the report, or is aware that the report may be used, in support of an appeal to the Board from the suspension of a driver’s licence under section 50.1 of the Act;

(d) the length of time and frequency with which the medical practitioner has attended upon the person who is the subject of the report, including the date of the most recent examination of the person that supports the findings set out in the report;

(e) whether the medical practitioner is the family physician of the person who is the subject of the report; and

(f) whether the medical practitioner is a specialist and, if so, the field of specialty. O. Reg. 510/96, s. 3.

(2) The report shall provide the details of any present condition, diagnosis and history of the condition that precludes the person who is the subject of the report from providing a breath or blood sample including the results of any related tests. O. Reg. 510/96, s. 3.

(3) The report shall be signed by the medical practitioner. O. Reg. 510/96, s. 3.

PART III
APPEALS UNDER SECTION 50.3

16. This Part applies to appeals to the Board under section 50.3 of the Act. O. Reg. 511/97, s. 1.

17. (1) An appeal to the Board under section 50.3 of the Act shall be commenced by filing with the Board a notice of appeal, together with proof of service of a copy of the notice of appeal on the Registrar at the address set out in the impound order. O. Reg. 511/97, s. 1.

(2) The notice of appeal shall clearly state,

(a) the owner’s name, telephone number, address with postal code and fax number;

(b) if the owner is represented by counsel, counsel’s name, telephone number, address with postal code and fax number;

(d) the name and location of the impound facility to which the commercial motor vehicle or trailer was ordered to be impounded; and

(e) the ground or grounds of appeal under subsection 50.3 (3) of the Act that the owner relies upon, together with a brief summary of the facts in dispute. O. Reg. 511/97, s. 1.

(3) Upon receipt of the documents required by subsection (1), the Board shall forthwith provide the owner and Registrar with written confirmation that the appeal has been commenced. O. Reg. 511/97, s. 1.

18. (1) The Board shall hold an oral hearing at the closest available location to the site of the inspection from which the Registrar ordered the vehicle to be removed to an impound facility or at such other location that is consented to by both parties. O. Reg. 511/97, s. 1.

(2) Despite subsection (1), the Board may hold a written hearing if the owner or Registrar requests it and the other party consents. O. Reg. 511/97, s. 1.

PART IV
APPEALS UNDER SECTION 50.2

19. This Part applies to appeals to the Board under section 50.2 of the Act. O. Reg. 632/98, s. 1.

20. (1) An appeal to the Board under section 50.2 of the Act shall be commenced by filing a notice of appeal with the Board within 15 days of the issuance of the order to impound, together with a fee of $100 payable to the Minister of Finance. O. Reg. 632/98, s. 1.

(2) Subject to subsection (5), an owner appealing an order to impound shall file, with the notice of appeal two separate copies of all written material that the owner intends to use as evidence in support of the appeal. O. Reg. 632/98, s. 1.

(3) The notice of appeal shall clearly state,

(a) the owner’s name, telephone number, address with postal code and fax number;

(b) if the owner is represented by counsel, counsel’s name, telephone number, address with postal code and fax number;

(d) the name and location of the impound facility to which the motor vehicle was ordered to be impounded;

(e) the ground or grounds of appeal under subsection 50.2 (3) of the Act that the owner relies upon, together with a brief summary of the owner’s position;

(f) whether the owner consents to a written or electronic hearing; and

(g) whether all of the supporting material that the owner intends to submit in support of the appeal is being filed together with the notice, or whether any additional material remains to be delivered. O. Reg. 632/98, s. 1.

(4) Upon receipt of a notice of appeal under this section, the Board shall forthwith deliver to the Registrar a copy of the notice of appeal and a copy of the written material submitted in support of the appeal, if any. O. Reg. 632/98, s. 1.

(5) Prior to the hearing, as directed by the Board, the Registrar shall submit to the Board all written materials that the Registrar intends to use as evidence and an owner who has not submitted all written material referred to in subsection (2) shall do so. O. Reg. 632/98, s. 1.

(6) Despite subsections (2) and (5), the Board shall permit any written material not previously submitted to the Board to be used in evidence in an oral or electronic hearing if the Board is of the opinion that,

(a) it is reasonable in the circumstances to do so; and

(b) any unfairness occasioned by the use of the evidence can be compensated for by an adjournment. O. Reg. 632/98, s. 1.

(7) Despite subsection (1), the Board may extend the time for commencing an appeal if the owner establishes that the owner, acting in good faith, was unable through accident, illness, or other cause beyond the owner’s control to bring the appeal within the prescribed 15 days. O. Reg. 632/98, s. 1.

(8) Despite subsection (1), an appeal may be commenced after the expiry of the prescribed 15 days if the Registrar gives his or her consent in writing to the owner and the Board. O. Reg. 632/98, s. 1.

(9) The fee required by subsection (1) shall be refunded to the owner if the Board sets aside the order to impound. O. Reg. 632/98, s. 1.

21. (1) The Board shall hold an oral hearing at the closest available location to the site where the motor vehicle was detained under subsection 55.1 (2) of the Act or at such other available location satisfactory to the Board that is consented to by both parties. O. Reg. 632/98, s. 1.

(2) Despite subsection (1), if the parties consent, the Board may hold a written or electronic hearing. O. Reg. 632/98, s. 1.

(3) The oral evidence taken before the Board at a hearing may be recorded and, if so required, copies of the transcript of the hearing shall be furnished upon the same terms as in the Ontario Court (General Division). O. Reg. 632/98, s. 1.

22. (1) In determining whether exceptional hardship will result from an order to impound under section 55.1 of the Act, the Board shall consider whether no alternative to the impounded motor vehicle is available and, if no alternative is available, whether the impoundment will result in,

(a) a threat to the health or safety of any person ordinarily transported by the motor vehicle; or

(b) a threat to the public health and safety or to the environment or property of a community in whose service the motor vehicle is ordinarily used. O. Reg. 632/98, s. 1.

(2) In determining whether exceptional hardship will result from an order to impound under section 55.1 of the Act, the Board shall not, subject to subsection (3), consider whether the impoundment will result in,

(a) inconvenience to any person;

(b) financial or economic loss to any person;

(d) loss of education or training or of an educational or training opportunity to any person. O. Reg. 632/98, s. 1.

(3) The Board may consider the criteria set out in clauses (2) (b), (c) and (d) if the owner demonstrates that,

(a) no alternative to the impounded motor vehicle is available;

(b) the loss will be immediate, significant and lasting;

(d) the impact of the loss,

(i) will be upon a person other than the person whose driving while his or her driver’s licence was under suspension resulted in the order to impound the motor vehicle, and

(ii) will not be a result of a loss by the suspended driver of the type set out in clause (2) (b), (c) or (d). O. Reg. 632/98, s. 1.

(4) In order to show that no alternative to the impounded motor vehicle is available under subsection (1) or clause (3) (a), the owner must demonstrate that every reasonable option has been considered and inquired into that could eliminate or adequately mitigate any threat or loss to the person, including using another vehicle to replace the impounded motor vehicle and making arrangements to do without the impounded motor vehicle or a replacement during the impound period. O. Reg. 632/98, s. 1.