Howden v. Ontario (Transportation), 2009 HRTO 142

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

George Howden

Applicant

-and-

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

Respondent

INTERIM DECISION

Adjudicator: Alan Whyte

Date: February 9, 2009

Citation: 2009 HRTO 142

Indexed as: Howden v. Ontario (Transportation)

1This Interim Decision addresses the respondent’s request to dismiss this Application pursuant to s. 34 (11) (a) of the Human Rights Code R.S.O. 1990, c. H.19, as amended (the “Code”) and the jurisdictional issue which arises as a result of s.19 (2) of Regulation 340/94 passed under the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended (the “HTA”) and s. 47(2) of the Code. The issue of deferral of the Application to the conclusion of proceedings in the Court of Appeal will also be addressed.

Background

2This is an Application which alleges discrimination in relation to goods, services or facilities on the basis of disability.

3The respondent downgraded the applicant's driver’s licence. The applicant appealed that decision to the Licence Appeal Tribunal (the “LAT”). One of the issues in the appeal was the applicability of the Code to the respondent's decision-making. The LAT dismissed his appeal, which decision was appealed to the Superior Court of Justice. That Court dismissed the appeal and there is now an outstanding appeal before the Ontario Court of Appeal.

4In its Response, the respondent requested early dismissal on the grounds that the Application was barred under s. 34(11)(a) of the Code, because a proceeding based on the same facts and seeking a remedy for the alleged human rights violation had been filed in civil court.

5In its Interim Decision, Howden v. Ontario (Transportation), 2008 HRTO 244, the Tribunal requested submissions from the parties on whether s. 34(11)(a) of the Code applied in the circumstances and further, whether it would be appropriate to defer consideration of the Application pending the conclusion of the court proceeding.

6Submissions were received from both parties regarding the application of s. 34(11)(a) but the respondent did not make submissions regarding the deferral issue.

Positions of the parties

7The applicant submits that there is a considerable number of legal and medical issues involved in his appeal, but that those issues have been separated from the human rights issues which are being advanced in this Application only.

8The applicant has confirmed that no human rights remedies or relief will be sought in his appeal to the Court of Appeal, and he has provided a copy of his Notice of Appeal to confirm that. The only mention of human rights is in one of the fourteen grounds of appeal where he refers to the treatment of the human rights issues by the Superior Court of Justice. The only remedy sought by the applicant before the Court of Appeal is the reinstatement of his “B” driver’s licence.

9The respondent points to the fact that one of the grounds of the applicant's appeal to the Court of Appeal relates to the human rights issues that were dealt with before the LAT and the Superior Court of Justice.

Decision

Section 34(11)(a)

10Section 34(11)(a) of the Code states as follows:

A person who believes that one of his or her rights under Part I has been infringed may not make an application under subsection (1) with respect to that right if,

(a) a civil proceeding has been commenced in a court in which the person is seeking an order under section 46.1 with respect to the alleged infringement and the proceeding has not been finally determined or withdrawn; or

(b) a court has finally determined the issue of whether the right has been infringed or the matter has been settled.

11The section applies where a person is seeking an order under s. 46.1 with respect to the alleged infringement of the Code in a civil proceeding. Section 46.1 provides as follows:

If, in a civil proceeding in a court, the court finds that a party to the proceeding has infringed a right under Part I of another party to the proceeding, the court may make either of the following orders, or both:

1. An order directing the party who infringed the right to pay monetary compensation to the party whose right was infringed for loss arising out of the infringement, including compensation for injury to dignity, feelings and self-respect.

2. An order directing the party who infringed the right to make restitution to the party whose right was infringed, other than through monetary compensation, for loss arising out of the infringement, including restitution for injury to dignity, feelings and self-respect.

12In Beaver v. Dr. Hans Epp Dentistry Professional Corporation, 2008 HRTO 282, the Tribunal discussed the purpose and application of s. 34(11)(a) of the Code:

10Section 34(11) is intended to eliminate duplicate court and Tribunal proceedings alleging breaches of the Code. An applicant’s ability to bring an application at the Tribunal is removed where there is an ongoing court proceeding in which he or she has made a claim for remedies based upon the same alleged infringement of the Code, where a court has finally determined the issue of whether the right has been violated, or where the matter has been settled. Section 34(11) is triggered by the applicant’s decision to raise the Code and seek remedies for its violation in a court action.

11To find that s. 34(11) only applies if s. 46.1 is specifically pleaded in the civil action, but not when the Code is the basis for punitive or bad faith damages would be an overly technical interpretation that would defeat the purpose of s. 34(11). I am satisfied that the section applies in the present circumstances, where the facts and issues in a court action are the same as those in the Application, and where this plaintiff has asked the court to find an infringement of her rights under the Code and sought damages based on that alleged infringement.

13In the Beaver case, the civil action for wrongful dismissal claimed damages for breach of the plaintiff’s rights under the Code. However, in the present case, the applicant has not asked the Court of Appeal to find an infringement of his rights under the Code, nor has he sought damages in the Court of Appeal based on any alleged infringement of the Code. Furthermore, the issues involved in the Court of Appeal proceeding, which concern appellate review of a decision of the LAT, are different from those in the Application wherein the applicant alleges discrimination on the basis of the disability by the respondent. For these reasons, I am not satisfied that s. 34(11)(a) applies in the circumstances to bar this Application. The respondent’s request for dismissal of the Application on this basis is dismissed.

Jurisdictional Issue

14In the respondent's submissions, it was argued that the medical examinations and qualifications for drivers set out in Regulation 340/94 were exempt from the provisions of the Code.

15The relevant sections of Regulation 340/94 are as follows:

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.

From the LAT decision involving the applicant, it is apparent that it was pursuant to s. 17(2) of the Regulation that the respondent established the Medical Advisory Committee to set standards for waivers of medical qualifications for drivers in Ontario, and that it was this waiver which was in question in the applicant’s case.

16Section 47(2) of the Code states as follows:

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.

17There is a threshold issue as to whether the subject matter of the Application is within the power of the Tribunal to decide. The jurisdiction of the Tribunal is based on the Code, and in particular Part IV thereof. Section 39 of the Code provides as follows:

The Tribunal has the jurisdiction to exercise the powers conferred on it by or under this Act and to determine all questions of fact or law that arise in any application before it.

18The Tribunal therefore orders:

(a) a one-day hearing will be held to address the issue of whether the Tribunal has any jurisdiction to hear this Application in light of s. 19(2) of Regulation 340/94 of the HTA and s. 47(2) of the Code;

(b) the applicant shall deliver to the respondent and file with the Tribunal at least 20 days before the hearing date a statement of any further facts to be relied upon beyond those already filed with the Tribunal, any relevant documents and any case law which will be referred to;

(c) the respondent shall deliver to the applicant and file with the Tribunal at least 10 days before the hearing date a statement of any further facts to be relied upon beyond those already filed with the Tribunal, any relevant documents and any case law which will be referred to.

19The Tribunal draws the applicant's attention to the “Applicant's Guide” and in particular to sources of legal assistance and representation available to applicants, including support that may be available through the Human Rights Legal Support Centre. The guide and links to other sources of information are available on the Tribunal's website www.hrto.ca, or from the Registrar.

Deferral

20In view of the jurisdictional issue described above, it is not necessary to deal with the deferral issue at this time.

21I am not seized of this matter.