Daoust v. Ontario (Transportation), 2010 HRTO 1725

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Philippe Daoust

Applicant

-and-

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

Respondent

DECISION

Adjudicator: Mark Hart

Date: August 20, 2010

Citation: 2010 HRTO 1725

Indexed as: Daoust v. Ontario (Transportation)

1This is an Application made under s. 53(5) of the Ontario Human Rights Code, dated June 28, 2009. The underlying complaint was filed with the Ontario Human Rights Commission (the “Commission”) on May 7, 2007.

2The purpose of this Decision is to address the respondent’s Request that the Application be dismissed on the basis that it is not within this Tribunal’s jurisdiction.

3The applicant states that in June 2003, at the age of 44, he suffered a stroke that left him blind in his left field of vision. Over the next three to six months, his vision improved considerably but never to the point of total recovery. As a result, the applicant’s neurologist notified the respondent Ministry to suspend the applicant’s driver’s licence due to the visual criteria established by the Ministry.

4Sometime after December 2005, when he became aware of the Supreme Court of Canada’s decision in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 (known as Grismer), the applicant contacted the Ministry to see if there was anything he could do to reinstate his driver’s licence. The applicant was notified of the Ministry’s waiver program, to which he applied and his GZ licence was reinstated in April 2006.

5Prior to his visual impairment, the applicant had held a Class AMCZ licence, which means that he was licenced to operate large commercial vehicles, passenger buses and motorcycles with a Z endorsement to drive vehicles equipped with air brakes. The applicant alleges that he should have been reinstated to a Class AMCZ licence with the waiver and not to a GZ licence. The applicant states that he applied for a Class A licence, but his application was denied.

6The 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 section 17(1)(k), which is listed in section 19(1) of Regulation 340/94, visual requirement (i.e. horizontal visual field) for an applicant or holder of a class A or C licence apply despite the Code.

7The applicant was afforded an opportunity to provide written submissions in response to the respondent’s Request. While the applicant has requested an oral hearing in this matter, s.43(2).1 of the Code expressly exempts this Tribunal from a requirement to afford an opportunity for oral submissions when dealing with matters of jurisdiction.

8Section 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.

9Section 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.

10Section 17(1)(k) of the Highway Traffic Act states:

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

(k) has a horizontal visual field of at least 150 continuous degrees along the horizontal meridian and at least 20 continuous degrees above and below fixation, with both eyes open and examined together.

11There is no dispute that the applicant does not meet the visual requirement for a Class A or C licence established by s. 17(1)(k) of the Highway Traffic Act. Further, unlike with a Class G licence, there currently is no waiver program in place which allows any deviation from this visual requirement.

12Section 19(1) of Regulation 340/94 of the Highway Traffic Act allows section 17(1)(k) to operate notwithstanding the Code. Accordingly, pursuant to section 47(2) of the Code, the Tribunal does not have jurisdiction to determine whether the visual requirement in section 17(1)(k) of the Highway Traffic Act contravenes the Code. See Catherine v. Ontario (Transportation), 2009 HRTO 140 in which the Tribunal dismissed an application that involved a challenge to the age requirement in section 16 of the Highway Traffic Act on the basis of s. 19(1) of Regulation 340/04 and Gordon v. Ontario (Transportation), 2010 HRTO 1025 in which the Tribunal dismissed an application seeking to challenge the visual requirement and waiver program for a Class G licence under ss. 18(2)(b) and 21.2 of the Highway Traffic Act on the basis of s. 19(1) of Regulation 340/04.

13The Application is therefore dismissed and the hearing currently scheduled for October 25, 2010 and any remaining pre-hearing requirements are cancelled.