Gordon v. Ontario (Transportation), 2010 HRTO 1025

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Lawrence Gordon Applicant

-and-

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

DECISION

Adjudicator: Alison Renton Date: May 7, 2010 Citation: 2010 HRTO 1025 Indexed as: Gordon v. Ontario (Transportation)

1This is an Application filed September 21, 2009 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 disability and reprisal in respect of goods, services and facilities and contracts.

2The applicant alleges that, as a result of a stroke that he suffered in 2000, his driver's licence was suspended. He alleges that the respondent sent him a vision waiver package which, if he passed, would reinstate his driver's licence. He alleges that he passed all components of the vision waiver package, except for the road test taken with the respondent. He alleges that he is a capable driver, which has been verified by a private driving instructor, and has been subjected to differential treatment by the respondent because it requires him to submit to an individual driver evaluation by a Ministry recognized driving assessment centre rather than accepting an evaluation by a private driving instructor. His driver's licence has not been reinstated.

3The respondent filed a Request for Order During Proceedings and submits that the applicant's driver's licence remained suspended as his "horizontal visual field" did not meet the specific vision requirements set out under Regulation 340/09 of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended. The respondent submits that the applicant availed himself of its "Vision Waiver Program" which allows drivers of a passenger vehicle who do not meet the visual criteria an opportunity to demonstrate through an individual driver's assessment at a Ministry approved driver assessment centre whether they can compensate for their deficit and operate a motor vehicle safely. The respondent submits that the applicant was discharged from a Ministry approved driver assessment centre when it determined during lessons that the applicant "did not demonstrate adequate driving skills and was considered to be at risk of collision" and his licence remained suspended.

4The respondent submits that the Tribunal has no jurisdiction to hear the Application based on a combined reading of section 19(1) of Regulation 340/04 under the Highway Traffic Act, and section 47(2) of the Code. Pursuant to sections 18(2)(b) and 21.2 of the Highway Traffic Act, which are listed in section 19(1) of Regulation 340/94, visual criteria (i.e. horizontal visual field) as well as the completion of any tests, procedures and examinations that the Minister may require under its waiver program (i.e. individual driver evaluation) for an applicant or holder of a class G, G1 or G2 licence apply despite the Code.

5The applicant did not file a Response to a Request for an Order During Proceedings and the time for doing so has now passed.

DECISION

6The Tribunal's power to hear and determine human rights applications is based on the Code. Sections 1 and 3 of the Code prohibit discrimination with respect to services and contracts 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:

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.

7Section 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.

8Section 18(2) of the Highway Traffic Act states:

18 (2) An applicant for or a holder of a Class G, G1 or G2 driver's license must have,...

(b) a horizontal visual field of at least 120 continuous degrees along the horizontal meridian and at least 15 continuous degrees above and below fixation, with both eye open and examined together.

9Section 21.2(1) of the Highway Traffic Act states:

21.2(1) The Minister may waive the qualification set out in clause 18(2)(b) for an applicant for or a holder of a Class G, G1 or G2 driver's licence if,

(a) the applicant or holder provides evidence that he or she has successfully completed the tests, procedures and examinations that the Minister may require.

10Section 21.2(1) of the Highway Traffic Act clearly states that the Minister may waive the qualification set out in clause 18(2)(b) (the horizontal visual field requirement) if the applicant provides evidence that he has successfully completed the tests, procedures and examinations that the respondent may require. The applicant alleges that he is a capable driver, which has been verified by a private driving school instructor, but he has not passed the tests, procedures and examinations that the Minister requires.

11Section 19(1) of Regulation 340/94 of the Highway Traffic Act allows section 21.2 to operate notwithstanding the Code. Accordingly, pursuant to section 47(2) of the Code, the Tribunal does not have jurisdiction to determine whether the provisions in clause 18(2)(b) and section 21.2(1)(b) of the Highway Traffic Act contravene the Code. See Catherine v. Ontario (Transportation), 2009 HRTO 140 in which the Tribunal dismissed the Application that invoked section 16 of the Highway Traffic Act which is also referenced in section 19(1) of Regulation 340/04 under the Highway Traffic Act.

12The Application is therefore dismissed.