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Part XIII of HTA of no force and effect
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PostPosted: Sun Nov 02, 2008 1:25 pm 
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Joined: Thu Oct 16, 2008 4:57 pm
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The purpose of the HTA is to ensure the privilege of driving on a highway is granted to, and retained by, only those persons who demonstrate that they are likely to drive safely; and that full driving privileges are granted only after new drivers have gained the necessary experience, as articulated under s. 31.

Section 48.3(10) states it is intended to safeguard the public. Section 48(9) articulates it is intended to safeguard the licensee and public. Section 82.1(9) states it is intended to promote compliance with the safety standards set out in and under this Act and to thereby safeguard the public. Section 172(18) states it is to promote compliance with this Act and to thereby safeguard the public.

All provisions of the Act are designed as safety measures in relation to all highway traffic matters within Ontario.

Harris v. Yellow Cab Ltd., [1926] 3 D.L.R. 254 (Ont. C.A.).

Highways are defined in s. 1(1). Therefore, by virtue of the doctrine of estoppel the Province is prevented from claiming the Acts purpose is anything other.

As such, Part XIII of the Act is unconstitutional; and it, as well as Part V and V.I of the Family Responsibility and Support Arrears Enforcement Act are deemed inoperative and of no force and effect.

The Province is not only requiring citizens to comply with all Act safety measures to obtain and retain their licence, but also requires us to unconstitutionally comply with all other unrelated laws.

Section 1 provides the Lieutenant Governor in Council power to make regulations designating that the Act applies to a specified place or class of place that is not a highway. Section 1 states;

1.1 The Lieutenant Governor in Council may make regulations providing that this Act or any provision of this Act or of a regulation applies to a specified place or class of place that is not a highway.

The Lieutenant Governor in Council has not made regulations stating the Act applies to anything other than highways, as defined in the Act.

Section 5(1) also provides the Lieutenant Governor in Council authority to make regulations in relation to the grounds of a suspension, but no regulations have been made. Section 5(1) expressly states;

Administrative monetary penalties

5(1) The Lieutenant Governor in Council may make regulations,
(a) providing for and governing the imposition and payment of administrative monetary penalties payable by persons whose driver’s licence has been suspended, including prescribing different penalties based on the number of times the licence has previously been suspended and on the grounds for suspension.

Part XIII of theAct is ultra vires the purpose of the HTA and, thus, the Province.

The interpretation of the breadth of the Minister’s discretion is not only restricted by the requirement of natural justice, but also by statutory powers and duties. Licensing is a tool in the arsenal of powers available to the Minister under the HTA to manage highways; nothing more.

At law, a driver’s licence is a valid bilateral contract as all five key requirements for the creation of a contract are met. These are offer and acceptance (agreement), consideration, an intention to create legal relations, capacity and formalities. One signs the driver’s licence and pays fees; and should the government breach the contract, it does so at its own peril. Both ss. 198.3(1) and (2) articulate that the Registrar and Crown are not relieved of liability.

As evidenced in regulations 340/94 and 341/94; Part XIII has no bearing on the qualifications required to obtain or maintain a driver’s licence. HTA s. 32(5) articulates the scope of the Minister’s power in relation to a driver’s licence and it fails to provide any jurisdiction in relationship to Part XIII.

The Registrar acts under the instructions of the Minister and Deputy Minister, but the Minister is without power to delegate authority to the Registrar in relation to Part XIII; and its enforcement is not prescribed by law.

The issuance of licences, which, once issued, require special provision to abrogate them and there is neither express provision nor necessary implication to be found permitting the Minister discretion to refuse to issue or suspend a licence when applied for by a qualified applicant.

Qualified citizens possess a vested right in a licence not only for pleasure but also for means of survival and out of employment necessity. The Director Family Responsibility and Support Arrears Enforcement Act has no authorization to revoke it while it subsisted.

If the Legislature chose to confer on the Director twofold powers of issuance and authorization to suspend, then it must have intended that the two powers be distinct. The Director makes the suspend demand to the Registrar under the HTA but the Registrar does not possess express authority to take orders from the Director under the Act.

Moreover, mobility rights are enshrined in the Charter. Section 6 states;

6(1) Every citizen of Canada has the right to enter, remain in and leave Canada.

2) Every citizen of Canada and every person who has the status of a permanent resident of Canada has the right

a) to move to and take up residence in any province; and

b) to pursue the gaining of a livelihood in any province.

Section 15 of the Charter states;

15(1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability. The word “and” indicates the protection is not limited to the expressed class of citizens.

In sum, the principle of good faith in contractual relations has been breached and the provisions are unenforceable. The notwithstanding clause has not been incorporated into Part XIII and the section is not saved by s. 1 of the Charter. Thus, the entire section of the Act is invalid and must be severed therefrom.

The Supreme Court of Canada has determined the right to circulate in a motor vehicle on the public highway is described as a liberty that is merely a licensed activity subject to regulation and control for the protection of life and property.

A drivers license is considered a property interest and there is no question that in our mobile society the suspension of a driver's license constitutes a serious deprivation. Thus, a driver's license is a property interest entitled to protection under Due Process, and Due Process, as well as Natural Justice, is enshrined in the principles of fundamental justice under s. 7 of the Charter.

Moreover, other provincial machinery exists to enforce unpaid liabilities, such as, Interjurisdictional Support Orders Act, Reciprocal Enforcement of Judgments Act, Enforcement of Judgments Conventions Act and the Reciprocal Enforcement of Judgments (U.K.) Act.

_________________
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