Howden v. Ontario (Ministry of Transportation), 2009 HRTO 1360

George Howden

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation

Respondent

Adjudicator: Alan Whyte

Date: August 31, 2009

Citation: 2009 HRTO 1360

Indexed as: Howden v. Ontario (Ministry of Transportation)

George Howden, Applicant ) On His Own Behalf

Her Majesty the Queen in ) David Milner and John Petrosoniak, Right of Ontario as represented by ) Counsel the Minister of Transportation )

1This is an Application which alleges discrimination contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in relation to goods, services or facilities on the basis of disability. The applicant’s “B” driver’s licence, which permitted him to drive buses, was downgraded by the respondent (or “the Ministry”) to a “G” driver’s licence. The applicant challenges that decision on the basis that he suffers from a disability in the form of a heart condition and that the respondent’s decision was discriminatory.

2In an Interim Decision, 2009 HRTO 142, the Tribunal directed that a hearing be held in order to address the issue of whether it has any jurisdiction to hear this Application in light of s. 19 (2) of Ontario Regulation 340/94 (“the Regulation”) passed under the Highway Traffic Act, R.S.O. 1990, c. H.8 (“the Act”) and s. 47 (2) of the Code. That hearing was held on May 28 and July 10, 2009, and, in addition, written submissions were filed by both parties. This Interim Decision will decide the question of the Tribunal's jurisdiction. It should be noted that the applicant made a number of post-hearing written submissions, which have been disregarded by the Tribunal in arriving at this Interim Decision.

Statutory Background

3The resolution of this matter requires the interpretation and application of various provisions of the Regulation and the Code.

4Section 17(1)(d) of the Regulation is the section under which the Ministry’s downgrade decision was made and is the section which, in the applicant’s view, is the most material to this case.

5Section 17(2) of the Regulation is the section primarily relied on by the Ministry as being the basis upon which the applicant was attempting to have the Ministry reinstate his licence. Section 17(2) is exempted from the operation of the Code by s. 19(2) of the Regulation, and thus applies despite the Code pursuant to s. 47(2) of the Code.

6The applicable sections are set out below:

The Regulation

17(1) Qualifications required by an applicant for or a holder of a Class A, B, C, D, E or F driver’s licence are that the applicant or holder,

(d) has no established medical history of heart disease including arrhythmia or of respiratory dysfunction likely to interfere with the safe driving of a motor vehicle of the applicable class;

17(2) An applicant for or a holder of a Class A, B, C, D, E or F driver’s licence who fails to meet the qualifications referred to in clauses (1) (a) to (i) may, despite the failure, qualify for the class of licence applied for or held if he or she demonstrates the ability to drive a motor vehicle in the applicable class as safely as any person who meets those qualifications.

19(1) The examinations and qualifications required of an applicant for or a holder of a driver’s licence by section 16, clauses 17 (1) (j) and (k), subsections 17 (4) and 18 (1), clause 18 (2) (a) and sections 21.1 and 21.2 apply despite the Human Rights Code.

(2) Subsection 17 (2) applies despite the Human Rights Code.

21(1) The Minister may waive any of the qualifications set out in clauses 17 (1) (a) to (i) with respect to an applicant for or holder of a Class A, B, C, D, E or F driver’s licence if,

(a) the applicant or licence holder produces a certificate from a legally qualified medical practitioner on the form provided by the Ministry stating that, in the medical practitioner’s opinion, the applicant or licence holder is medically fit and able to function normally; and

(b) the applicant or licence holder provides evidence satisfactory to the Minister, including the reports of any examinations that the Minister may require, that he or she can safely drive a Class A, B, C, D, E or F motor vehicle, as the case may be.

(2) In determining whether an applicant or licence holder satisfies the requirements set out in clause (1) (b), the Minister shall consider,

(a) the nature and extent of the experience of the applicant or licence holder in the driving of Class A, B, C, D, E and F motor vehicles;

(b) the status of the medical condition of the applicant or licence holder; and

(c) the circumstances of the applicant or licence holder, and his or her attitude with respect to the medical condition, as they may affect the relationship between the condition and his or her ability to drive a motor vehicle safely.

(3) Despite subsection (1), the Minister shall not grant a waiver under this section,

(a) in respect of a Class A driver’s licence, except to a person who holds or has held a valid Class A driver’s licence issued under the Act;

(b) in respect of a Class B driver’s licence, except to a person who holds or has held a valid Class B driver’s licence issued under the Act;

(c) in respect of a Class C driver’s licence, except to a person who holds or has held a valid Class B or C driver’s licence issued under the Act;

(d) in respect of a Class D driver’s licence, except to a person who holds or has held a valid Class A, B, C or D driver’s licence issued under the Act;

(e) in respect of a Class E driver’s licence, except to a person who holds or has held a valid Class B or E driver’s licence issued under the Act; or

(f) in respect of a Class F driver’s licence, except to a person who holds or has held a valid Class B, C, E or F driver’s licence issued under the Act.

The Code

47(2) Where a provision in an Act or Regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or Regulation specifically provides that it is to apply despite this Act.

Factual Background

7As indicated, the applicant held a “B” drivers licence. On November 2, 2005, his cardiologist wrote to the respondent to indicate that the applicant “has a significant cardiac condition which should preclude him from holding a ‘B’ licence although I believe he does meet the criteria to continue driving privately”. As a result of this report, the respondent advised the applicant by letter dated April 6, 2006, that “The medical records submitted have been reviewed by our medical advisors, who have recommended that, at the present time, you should not hold a licence higher than a class ‘G’”.

8There then ensued a voluminous exchange of correspondence between the applicant and respondent. Much of this exchange dealt with the respondent’s requirement that in order to reconsider the applicant's case, a detailed assessment from his cardiologist would be required. The respondent indicated that this assessment must include the results of pertinent investigations which demonstrate a significant improvement in the applicant’s “left ventricular function with a minimum ejection fraction of 35%” (the “35% test”). This requirement flowed from a Ministry policy which in turn was based on the CCMTA Medical Standards for Drivers, which have been adopted by the Ministry to address situations involving drivers with cardiovascular disease.

9The thrust of the applicant's correspondence was directed to the point that his “heart disease” was not such as to ”likely …interfere with the safe driving of a motor vehicle of the applicable class”, which phrase appears in s. 17(1)(d) quoted above. The applicant has continually taken the position, both in his dealings with the respondent from the time of the downgrade of his licence and before this Tribunal, that that phrase modifies both “heart disease” and “respiratory dysfunction”, both of which are referred to in this section. Although the section can be read otherwise (such that the “likely to interfere” phrase modifies only “respiratory dysfunction”), the respondent did not argue that the applicant's interpretation of the section was incorrect.

10With his correspondence, the applicant forwarded to the Ministry a large number of medical tests and reports relating to his personal medical condition, as well as documentation related to other medical tests other than the one upon which the Ministry was insisting. The applicant was attempting to convince the Ministry that its 35% test was not the only test that was relevant to the applicant’s ability to safely drive a bus, and that if the Ministry took into account his medical testing results using other appropriate tests, the Ministry would have to conclude that he could safely drive a bus.

11As the respondent would not relent in its requirement that the applicant satisfy the 35% test, he ultimately appealed to the Licence Appeal Tribunal (“LAT”), which heard his case on March 5, 2008. LAT issued a decision dated April 17, 2008, which denied the applicant's appeal. In dealing with that appeal, LAT indicated that the applicant was applying for a “waiver” of the downgrading of his licence, although s. 21 of the Regulation was not referred to, apparently concluding that s. 17(2) was the section in question. LAT also decided that s. 19(2) of the Regulation exempted s. 17(2) from the operation of the Code, and therefore the applicant was precluded from relying on the Code in support of his appeal.

12The applicant appealed LAT’s decision to the Superior Court of Justice and then on to the Court of Appeal, and was unsuccessful at both levels. The result is that the applicant holds only a “G” drivers licence at the present time.

13In its correspondence with the applicant, the Ministry has referred to the applicant’s “application for a waiver of the medical standards for a class ‘B’ licence”. Part of the Ministry's process in cases such as this involves a review of the medical documentation by the medical advisory committee of the Ministry. That committee reviewed the applicant's medical documentation on a number of occasions and the result in each case was documented on a form entitled “MAC Case Study”. The decision of the committee on each occasion was “Waiver denied”. The reasons for the committee's decision on at least one of the forms refer to “the waiver criteria requirements” which was a reference to the 35% test referred to above.

Positions of the parties

Applicant

14The applicant's main argument is that it is s. 17(1)(d) which is the section under which the Ministry's downgrade decision was made, and that that is the section which has remained the focus of the dealings between the applicant and the Ministry throughout. Since s. 17(1)(d) is subject to the operation of the Code, and is unaffected by s. 17(2) and s. 19 of the Regulation, the Tribunal clearly has jurisdiction to proceed with this Application.

15The applicant argued that there were three routes in the Regulation under which a person who has had his licence downgraded could have that licence reinstated:

Section 17(1)(d) — the driver could show that his heart disease was not likely to interfere with the safe driving of the motor vehicle in the applicable class.
Section 17(2) — the driver could demonstrate the ability to drive a motor vehicle in the applicable class.
Section 21 — the driver could be granted a waiver of the qualifications required for the holding of the licence classification in question.

16The applicant submitted that, on the facts, s. 17(2) and s. 19 are irrelevant to his case. He argued that his focus throughout his dealings with the Ministry was on s. 17(1)(d) and his attempt to demonstrate that he was able to safely drive a bus and was therefore entitled to have his class “B” licence reinstated. He submitted that he had never admitted that he failed to meet the medical qualifications required under s. 17(1)(d).

17He also argued that he never applied for a waiver under s. 21 of the Regulation. Even though the Ministry appeared to be of the view that he had, it was never his intention to do so.

18The applicant submitted that the correspondence and other documentation received by him from the Ministry never referred to any specific provision in the Act or Regulation under which the Ministry derived its authority. He therefore argued that the Ministry should not be entitled to rely on any particular provision of the Act or Regulation at this stage in an effort to defeat his Application to the Tribunal.

19The applicant put forward reasons as to why s. 17(2) of the Regulation was exempt from the operation of the Code, whereas s. 21 is not. He argued that for a licence to be reinstated under s. 17(2), it was necessary for there to be some form of functional evaluation or assessment of the driver which was appropriately exempted from the Code. However, with respect to s. 21, medical tests or documentation would be the basis of the Ministry's decision-making, and the Code would properly operate in relation to that form of evidence relating to the driver’s ability to drive safely.

20The applicant made other arguments of statutory interpretation involving the use of like terms in several different sections of the Regulation; however, these will not be reviewed in detail as I believe this matter is to be determined largely based on the conduct of the respondent as opposed to the applicant.

Respondent

21The respondent argued that although the original downgrade decision was made under s. 17(1)(d) of the Regulation, the subsequent efforts by the applicant to have his “B” licence reinstated were made under s. 17(2) of the Regulation. By virtue of s. 19(2), that section is exempted from the operation of the Code, and accordingly, the Tribunal has no jurisdiction to entertain this Application.

22The respondent defended its use of the 35% test which was described as being completely objective and appropriate based on the medical literature. It was pointed out that the applicant has never succeeded under this test.

23The Ministry indicated that there is essentially a two-step process which the Ministry follows in dealing with cases such as the applicant's:

the driver’s individual information (such as medical documentation) is assessed under s. 17(2), and if the driver succeeds under the Ministry's policies (which import such standards as the 35% test), then
the driver moves to the waiver program for further assessment and a decision on whether such a waiver should be granted.

However, the Ministry conceded that the tests used under both sections are the same.

24The Ministry submitted that what the applicant was doing in his dealings with the Ministry was to attempt to demonstrate that he could drive a bus safely, pursuant to s. 17(2) of the Regulation. In order to do so, he had to provide satisfactory medical documentation to the Ministry, which if he had done so, would have resulted in the reinstatement of his licence.

25Counsel for the Ministry also indicated that if a licence was reinstated under s. 17(2), that reinstatement would be referred to as the granting of a waiver.

Decision

26As the party seeking an exemption from the operation of the Code, the respondent has the burden of demonstrating that its dealings with the applicant following the downgrading of his licence and its related decision-making fall squarely within the statutory provisions providing for that exemption.

27The courts have consistently held that any exceptions to the operation of the Code should be narrowly construed. For example, in Dickason v. University of Alberta, 1992 CanLII 30 (SCC), [1992] 2 S.C.R. 1103, the Supreme Court stated:

The right against discrimination provided in human rights statutes will be subject to any defence provided by those same statutes to those who discriminate. However, as McIntyre J. recognized in Ontario Human Rights Commission v. Borough of Etobicoke, 1982 CanLII 15 (SCC), [1982] 1 S.C.R. 202, a defence which allows discrimination to continue stands as an exception to the rule of non-discrimination. In Brossard (Town) v. Quebec (Commission des droits de la personne), 1988 CanLII 7 (SCC), [1988] 2 S.C.R. 279, this Court held that while rights should receive a broad interpretation, defences to the exercise of those rights should be interpreted narrowly.

28In Ontario (Human Rights Comm.) v. North American Life Assurance Co., (1995), 1995 CanLII 7430 (ON CTGD), 23 C.H.R.R. D/1 (Ont. Ct. (Gen.Div.)), at para. 17 the Court held that:

In interpreting the Code, special principles must be respected because of the nature of human rights legislation. Exceptions should be narrowly construed.

29Although these cases deal specifically with the interpretation of the statutory defences under the Code, I believe that a similar interpretation is to be given to s. 47(2) as it also deals with provisions in other legislation that could have the effect of limiting the operation of the Code.

30The evidence shows that it is far from clear what provision in the Regulation the respondent was relying upon in its dealings with the applicant related to the possible reinstatement of his “B” licence. The respondent did not cite any provisions in the Act or the Regulation in its correspondence with the applicant. To the extent that the respondent characterized the applicant's efforts to have his licence reinstated, it described those efforts as being an application for a waiver, which in turn is based on s. 21 of the Regulation, which is not exempted from the operation of the Code.

31The position put forward by the Ministry related to the two-step process, moving from s. 17(2) to s. 21, further blurs the exact basis for the Ministry's decision-making in this case. Although the Ministry takes the position that the applicant never succeeded under the first step, and therefore never got to the waiver stage, its communications with the applicant and the documentation that it created as it considered the applicant's medical documentation spoke in terms of a waiver application.

32Furthermore, the two-step process described by the Ministry is not, in my view, supported by a plain reading of the Regulation. To my mind, s. 17(2) and s. 21 describe two separate avenues which are available to a driver who has had his licence downgraded. There is nothing in the Regulation which links the two sections or otherwise indicates that one must succeed first under s. 17(2) before proceeding to s. 21.

33The situation is further confused by the respondent’s indication that had the applicant been able to succeed under the 35% test (i.e. under the requirements of s.17(2)), his licence would have been returned to him by way of a waiver having been granted.

34In light of my interpretation of the two sections in the Regulation and the Ministry's application of those sections, it is not necessary to decide whether the applicant's position, that he was always operating under s. 17(1)(d), is plausible, or whether the more correct view is that his efforts to have his “B” licence reinstated were being made under s. 17(2). As indicated above, the onus is on the Ministry to demonstrate clearly that it was operating on the basis of s. 17(2) at all material times, and I find that it has not done so.

35The Tribunal therefore has jurisdiction to deal with this Application. The file will be returned to the Registrar’s office for processing.

36I am not seized.

Dated at Toronto this 31^st day of August, 2009.

“Signed by”

Alan Whyte

Vice-chair