2015 NBCA 41, 2015 NBCA 41

COURT OF APPEAL OF COUR D’APPEL DU NEW BRUNSWICK NOUVEAU-BRUNSWICK 100-14-CA REGISTRAR OF MOTOR VEHICLES APPELLANT REGISTRAIRE DES VÉHICULES À MOTEUR APPELANT - and - - et - ROBERT GAUDET RESPONDENT ROBERT GAUDET INTIMÉ Registrar of Motor Vehicles v. Gaudet, 2015 NBCA 41 CORAM: The Honourable Justice Larlee The Honourable Justice Deschênes The Honourable Justice Quigg Registraire des véhicules à moteur c.

Gaudet, 2015 NBCA 41 CORAM : l’honorable juge Larlee l’honorable juge Deschênes l’honorable juge Quigg Appeal from a decision of the Court of Queen’s Bench: August 29, 2014 Appel d’une décision de la Cour du Banc de la Reine : Le 29 août 2014 History of Case: Historique de la cause : Decision under appeal: N/A Décision frappée d’appel : s.o. Preliminary or incidental proceedings: N/A Procédures préliminaires ou accessoires : s.o. Appeal heard: March 25, 2015 Appel entendu : le 25 mars 2015 Judgment rendered: July 9, 2015 Jugement rendu : le 9 juillet 2015

Counsel at hearing: For the appellant: Jean-François G. Dupuis Robert Gaudet appeared in person Avocats à l’audience : Pour l’appelant : Jean-François G. Dupuis Robert Gaudet a comparu en personne THE COURT The appeal is allowed without costs. LA COUR L’appel est accueilli sans dépens. English version of the decision delivered by THE COURT I.

Introduction [ 1 ] On November 4, 2013, the respondent, Robert Gaudet, had his driver’s licence revoked and his driving privilege suspended for a period of one year commencing November 15, 2013, following a conviction under s. 345(1) of the Motor Vehicle Act , R.S.N.B. 1973, c. M-17 (the Act ). He had, among other things, driven a motor vehicle upon a highway while his driving privilege was suspended (see s. 302(3) ( c ), (

d) and (

e) of the Act ). While serving his first suspension, the respondent was convicted of a second offence under s. 345(1) of the Act on May 20, 2014 . His driver’s licence was then revoked for a period of two years, from June 7, 2014, to June 7, 2016. [ 2 ] On July 21, 2014, the respondent filed a Notice of Application requesting the reinstatement of his driving privilege under s. 313 of the Act . This remedy was granted. The appellant appeals from this decision on the ground that the application judge lacked jurisdiction to grant the order requested, in view of ss. 313(2) ( d) , 319(9) and 314 of the Act.

The appellant requests that the application judge’s order dated August 29, 2014, be quashed so that the suspension of the respondent’s driver’s licence be reinstated until June 7, 2016. [ 3 ] In our view, the appellant rightfully argues that the application judge exceeded the jurisdiction granted by the Act in ordering the reinstatement of the respondent’s driver’s licence, given the evidence before him and the provisions of the Act. [ 4 ] Firstly, applications for reinstatement of a driver’s licence must be made [TRANSLATION] “in accordance with this

section [313] and in those cases referred to in subsection (2)”. Further, under s. 314, no application shall be made or considered except in those cases referred to in ss. 311(2) (of no relevance in this case) and 313(2). It is precisely s. 313(2) that sets out the circumstances in which an application may be made when it states that an application may be made under subsection (1) “in the following cases”.

In short, as mentioned by the appellant in his brief, the circumstances surrounding the suspension of the respondent’s driver’s licence do not correspond to any of the possible scenarios set out in s. 313(2) of the Act . [ 5 ] In Martin v. New Brunswick (Registrar of Motor Vehicles) , [1989] N.B.J. No. 249 (QL) , the

applicant was convicted twice under s. 345 of the Act and his driving privilege was suspended twice within less than three years prior to his application for reinstatement of his driver’s licence. Justice Riordon refused to grant his application for the following reasons: This is an application for reinstatement of the Applicant’s driving privileges pursuant to

Section 313 of the Motor Vehicle Act . On April 25, 1988 the Applicant was convicted of operating a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, contrary to

Section 237 (

b) of the Criminal Code . As a result, the Court prohibited him from driving for three months. The Respondent suspended the Applicant’s driving privileges for a period of six months from April 25th, 1988. On May 17, 1988 the Applicant’s driving privileges were suspended by the Registrar of Motor Vehicles for twelve months from April 25th, 1988 following a conviction under

Section 345 of the Motor Vehicle Act for driving a motor vehicle while driving privileges were suspended. A further suspension of the Applicant’s driving privileges by the Registrar occurred on September 29th, 1988. This suspension was for a period of 24 months and was as a result of a further conviction under

Section 345 of the Motor Vehicle Act for driving a motor vehicle while his driving privileges were suspended. Section 313(2) of the Motor Vehicle Act reads in part as follows: 313

(2) An application may be made under subsection (1) in the following cases: (

d) where the revocation and suspension, or suspension, was effected because the applicant was convicted of an offence for driving a motor vehicle while the applicant’s driving privilege was suspended if the conviction was the first conviction for that offence with respect to the applicant in the three years preceding the revocation and suspension, or suspension, The certified abstract of driving record of the Applicant, which was forwarded by the Respondent, Registrar of Motor Vehicle, under the authority of Section 313(8) of the Motor Vehicle Act clearly shows that the driving privileges of the Applicant were suspended for two convictions of the offence for driving a motor vehicle while his driving privileges were suspended.

The first such conviction took place on May 17th, 1988. The second conviction took place on September 19th, 1988. Both convictions of course occurred less than three years prior to the filing of the present application. The Applicant does not therefore satisfy the requirements of Section 313(2) (

d) above referred to and quoted and therefore the application must be denied. As the Court does not have jurisdiction to consider the application, it must be refused. There will be no order as to costs. [ 6 ] In our view, for the reasons set out in Martin , the application judge did not have jurisdiction to grant the order requested . II. Disposition [ 7 ] For these reasons, the appeal is allowed and the order dated August 29, 2014, is reversed without costs.

M.E.L. LARLEE, j.c.a. ALEXANDRE DESCHÊNES, j.c.a. KATHLEEN A. QUIGG, j.c.a.