Catherine v. Ontario (Transportation), 2009 HRTO 2

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Robert Catherine

Applicant

-and-

Her Majesty the Queen in Right of Ontario as Represented by the Ministry of Transportation

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: January 2, 2009

Citation: 2009 HRTO 2

Indexed as: Catherine v. Ontario (Transportation)

1This is an Application filed September 25, 2008 under s. 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (‘the Code”) alleging discrimination on the basis of age in respect of services.

2The applicant alleges that the respondent is discriminating against him on the basis of age by requiring him to submit to a driving test because he is over 80 years old.

3The respondent acknowledges that section 16 of Regulation 340/94 under the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, requires any driver aged 80 years or over to successfully complete certain examinations relating to the person’s knowledge of the Highway Traffic Act and its regulations and concerning their physical and mental fitness to drive in a safe manner in order to be licensed to drive.

4The respondent defends the statutory requirement and what it describes as its Senior Driving Program on the basis of road user safety. It also takes the position that the Tribunal has no jurisdiction to hear the Application based on the provisions of s. 19(1) of Regulation 340/94 under the Highway Traffic Act and s. 47(2) of the Code.

5The Tribunal’s power to hear and determine human rights applications is based on the Code. Section 1 of the Code prohibits discrimination with respect to services on the basis of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability. However, section 47(2) of the Code provides that where an Act or regulation which contravenes Part I of the Code states that it applies despite the Code, then the Code does not apply:

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.

6Section 19(1) of Regulation 340/94 under the Highway Traffic Act states:

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.

7In this case, there is a threshold issue whether the subject matter of the Application is within the power of the Tribunal to decide. In order to determine this issue, the Tribunal directs the applicant to provide written submissions addressing the Tribunal’s jurisdiction to decide this Application in light of section 47(2) of the Code and ss. 16 and 19(1) of Regulation 340/94 under the Highway Traffic Act.

8The applicant must deliver his submissions to the respondent and file them with the Tribunal within 20 days of the date of this decision. If the applicant does not provide submissions by this date, the Tribunal will determine the jurisdictional issue in the absence of submissions from the Applicant. If the Tribunal determines that it does not have jurisdiction in this matter, the Application will be dismissed.

9The respondent is not required to make further submissions unless directed to do so by the Tribunal.

10The 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.

11I am not seized of this matter.