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Highway Traffic Act of Ontario , section: 50.1 (1) to (7)

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Administrative Driver's License Suspension, Grounds for Appeal of ADLS

Appeal of ninety-day suspension

50.1 (1) A person whose driver’s licence is suspended under section 48.3 may appeal the suspension to the Tribunal. 1996, c. 20, s. 10; 1999, c. 12, Sched. G, s. 24 (8).

Grounds for appeal

(2) The only grounds on which a person may appeal a suspension under section 48.3 and the only grounds on which the Tribunal may order that the suspension be set aside are,

(a) that the person whose licence was suspended is not the same individual to whom a demand was made, or from whom a sample was taken, or who performed physical co-ordination tests or submitted to an evaluation, as the case may be, under section 254 or 256 of the Criminal Code (Canada); or

(b) that the person failed or refused to comply with a demand made under section 254 of the Criminal Code (Canada) because he or she was unable to do so for a medical reason. 2009, c. 5, s. 21. Supporting material

(3) A person who appeals to the Tribunal under subsection (1) shall file such written material in support of the appeal as may be required by the regulations made under clause 49 (4) (c), together with such other material as the person may wish to submit, and the Tribunal shall not hold a hearing until all the supporting material is filed. 1996, c. 20, s. 10; 1999, c. 12, Sched. G, s. 24 (8).

Powers of Board

(4) The Tribunal may confirm the suspension or may order that the suspension be set aside. 1996, c. 20, s. 10; 1999, c. 12, Sched. G, s. 24 (8).

Licence reinstated

(5) If the Tribunal orders that the suspension be set aside, it shall give written notice of the order to the appellant and the Registrar and, upon receipt of such notice, the Registrar shall reinstate the appellant’s driver’s licence, subject to any other suspension under this Act. 1996, c. 20, s. 10; 1999, c. 12, Sched. G, s. 24 (8).

Decision final

(6) The decision of the Tribunal under this section is final and binding. 1996, c. 20, s. 10; 1999, c. 12, Sched. G, s. 24 (8).

Suspension not stayed

(7) The suspension under section 48.3 continues to apply despite the filing of an appeal under this section unless the Registrar reinstates the licence pursuant to the Tribunal’s order that the suspension be set aside, and this subsection prevails over the Statutory Powers Procedure Act. 1996, c. 20, s. 10; 1999, c. 12, Sched. G, s. 24 (9).

When oral hearing required

(8) The Tribunal is not required to hold an oral hearing under this section unless the appellant requests an oral hearing at the time of filing the appeal and bases the appeal on one of the grounds set out in subsection (2). 1996, c. 20, s. 10; 1999, c. 12, Sched. G, s. 24 (10).

Exception

(9) Despite a request by the appellant for an oral hearing, the Tribunal may order that the suspension be set aside on the basis of the material filed with the Tribunal without holding an oral hearing. 1996, c. 20, s. 10; 1999, c. 12, Sched. G, s. 24 (10).

(10) Repealed: 1999, c. 12, Sched. G, s. 24 (11).

Appeal of a long-term vehicle impoundment for driving while suspended

50.2

(1) The owner of a motor vehicle that is impounded under section 55.1 may, upon paying the fee established by the Tribunal, appeal the impoundment to the Tribunal. 2009, c. 5, s. 22.

Parties

(2) The owner and the Registrar are the parties to an appeal under this section. 1997, c. 12, s. 5.

Grounds for appeal

(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may order the Registrar to release the motor vehicle are,

(a) that the motor vehicle that is impounded was stolen at the time it was detained in order to be impounded;

(b) that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension;

(c) that the owner of the motor vehicle exercised due diligence in attempting to determine that the driver’s licence of the driver of the motor vehicle at the time it was detained in order to be impounded was not then under suspension; or

(d) that the impoundment will result in exceptional hardship. 2009, c. 5, s. 22.

Exception

(4) Clause (3) (d) does not apply if there was a previous impoundment under section 55.1 with respect to any motor vehicle then owned by the same owner. 2009, c. 5, s. 22.

Powers of Tribunal

(5) The Tribunal may confirm the impoundment or order the Registrar to release the motor vehicle. 2009, c. 5, s. 22.

Notice of decision

(6) The Tribunal shall give written notice of its decision to the owner and the Registrar. 1997, c. 12, s. 5; 1999, c. 12, Sched. G, s. 24 (12).

Registrar’s actions if Tribunal orders release of vehicle

(7) If the Tribunal orders the Registrar to release the motor vehicle, the Registrar shall, upon receipt of the notice,

(a) issue an order to release the vehicle;

(b) pay on behalf of the owner the amount incurred by the owner, as a result of the impoundment, for removing and impounding the vehicle, not including any amount for economic losses; and

(c) pay the operator or the owner the amount incurred by the operator or owner, as a result of the impoundment, for removing the load or drawn vehicle from the motor vehicle, not including any amount for economic losses. 2009, c. 5, s. 22.

Decision final (8) The decision of the Tribunal under this section is final and binding. 1997, c. 12, s. 5; 1999, c. 12, Sched. G, s. 24 (12).

Impoundment not stayed

(9) Despite the Statutory Powers Procedure Act, the filing of an appeal under this section does not suspend or terminate the impoundment under section 55.1. 2009, c. 5, s. 22.

Civil Remedies Act, 2001 prevails

(10) Subsection (7) does not apply if the vehicle is subject to an order under Part III.1 of the Civil Remedies Act, 2001. 2007, c. 13, s. 14.

Definitions

(11) In this section,

“operator” has the same meaning as in section 55.1; (“utilisateur”)

“owner” means each person whose name appears on the certificate of registration for the vehicle but in subsection (4) “owner” means the person whose name appears on the plate portion of a permit in cases where the certificate of registration consists of a vehicle portion and a plate portion and different persons are named on each portion. (“propriétaire”) 1997, c. 12, s. 5; 2000, c. 26, Sched. O, s. 3 (2).

Appeal of impoundment, commercial motor vehicles

50.3 (1) The owner of a commercial motor vehicle or trailer that is impounded under section 82.1 may, upon paying the fee established by the Tribunal, appeal the impoundment to the Tribunal. 2009, c. 5, s. 23.

Parties

(2) The owner and the Registrar are the parties to an appeal under this section. 1997, c. 12, s. 6. Grounds for appeal

(3) The only grounds on which an owner may appeal under subsection (1) and the only grounds on which the Tribunal may order the Registrar to release the vehicle are,

(a) that the commercial motor vehicle or trailer that is impounded was stolen at the time the vehicle was detained under section 82.1; or

(b) that the commercial motor vehicle or trailer had no critical defects at the time of the inspection under section 82.1. 2009, c. 5, s. 23.

Effect of withdrawal of appeal

(4) If the owner withdraws the appeal after the Registrar has ordered the release of the vehicle pursuant to an order by the Superior Court of Justice under section 82.1, the Registrar shall order the owner of the commercial motor vehicle or trailer to return it, without any load, to an impound facility at a location and within the time specified in the Registrar’s order, failing which the security deposited in the Superior Court of Justice under section 82.1 shall be forfeited to the Crown. 2009, c. 5, s. 23.

Powers of Tribunal

(5) The Tribunal may confirm the impoundment or order the Registrar to release the vehicle. 2009, c. 5, s. 23.

Notice of decision

(6) The Tribunal shall give written notice of its decision to the owner and the Registrar. 1997, c. 12, s. 6; 1999, c. 12, Sched. G, s. 24 (14).

Owner must return vehicle to impound facility if order confirmed

(7) If the Tribunal confirms the impoundment, the Registrar shall order the owner of the commercial motor vehicle or trailer, if the vehicle had been previously released from the impound facility, to return it, without any load, to an impound facility at a location and within the time specified in the Registrar’s order and for the period set out in subsection 82.1 (8) less the number of days the vehicle was impounded prior to its release under subsection 82.1 (24), failing which the security deposited in the Superior Court of Justice under section 82.1 shall be forfeited to the Crown. 2009, c. 5, s. 23.

Registrar’s actions if ordered to release vehicle

(8) If the Tribunal orders the Registrar to release the vehicle, the Registrar shall, upon receipt of the notice,

(a) issue an order to release the vehicle;

(b) reinstate the vehicle portion of the permit that was suspended under subsection 82.1 (12);

(c) pay on behalf of the owner the amount incurred by the owner, as a result of the impoundment, for removing and impounding the vehicle, not including any amount for economic losses; and

(d) pay the operator of the vehicle the amount incurred by the operator, as a result of the impoundment, for removing the load from the vehicle, not including any amount for economic losses. 2009, c. 5, s. 23.

Vehicle cannot be operated until made safe

(9) Despite the fact that the Registrar is ordered to release the vehicle, the order to suspend the vehicle portion of the vehicle’s permit is set aside and the vehicle portion of the permit is reinstated, no person shall drive or operate on a highway the vehicle that was the subject of the order until it has been placed in a safe condition. 2009, c. 5, s. 23.

Decision final

(10) The decision of the Tribunal under this section is final and binding. 1997, c. 12, s. 6; 1999, c. 12, Sched. G, s. 24 (14).

Impoundment not stayed

(11) Despite the Statutory Powers Procedure Act, the filing of an appeal under this section does not suspend or terminate the impoundment or order to suspend under section 82.1. 2009, c. 5, s. 23.

(12) Repealed: 1999, c. 12, Sched. G, s. 24 (15).

Definitions

(13) In this section,

“commercial motor vehicle”, “operator”, “owner” and “permit” have the same meanings as in section 82.1. (“véhicule utilitaire”, “utilisateur”, “propriétaire”, “certificat d’immatriculation”) 1997, c. 12, s. 6.

Comments : There are very limited grounds for an appeal of the ADLS in Ontario.

Unfortunately your doctor (GP or specialist) will probably not support your claim, if any, that you failed to blow because of asthma. In reality few doctors have personal or professional experience or expertise with the volume and pressure and time required for a successful blow into an Intoxilyzer or a roadside screening device. The OMA, however, has commented on the subject making it very difficult for a doctor to support you even if they are inclined to do so.

With respect to the other ground for re-instatement it would be very rare for a there to be a false positive breath test by a person who was different than the person who was asked by police to blow. Not being the driver is not an acceptable ground of appeal.

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