George Howden v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation, 2010 HRTO 515

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

DECISION

Adjudicator: Alan Whyte Date: March 8, 2010 Citation: 2010 HRTO 515 Indexed as: Howden v. Ontario (Transportation)

APPEARANCES

George Howden, Applicant ) On his own behalf Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation, Respondent ) John Petrosoniak, Counsel

1This Decision deals with the application of section 45.1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), to this Application which was filed under section 34 of the Code and which alleges discrimination in goods, services and facilities on the basis of disability.

2In summary, the applicant's driver’s licence was downgraded in 2006 as a result of his physician’s report to the respondent that he had a heart condition. After consideration, the respondent downgraded the applicant’s licence from “B”, which entitles him to operate a school bus, to “G”, which entitles him to operate a passenger vehicle. The effect of the respondent’s action is that the applicant is no longer able to work as a school bus driver.

3The respondent brought a Request for Order during Proceedings (“RFOP”) which seeks the dismissal of the Application on the basis of section 45.1 of the Code, which provides as follows:

The Tribunal may dismiss an Application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the Application.

4The Rules of Procedure of the Tribunal related to section 45.1 read as follows:

22.1 The Tribunal may dismiss part or all of the Application where it determines, under section 45.1 of the Code, that another proceeding has appropriately dealt with the substance of part or all of an Application.

22.2 The parties will have the opportunity to make oral submissions before the Tribunal dismisses an Application under Rule 22.1.

5The applicant filed a Response to the RFOP and a hearing was held on January 11, 2010, at which time oral submissions were received from the parties.

6The Application deals with the downgrading of the applicant’s licence by the respondent, and references a series of related decisions by the respondent including one dated February 11, 2008. The Application seeks monetary compensation, restitution of the applicant’s “B” license, and a public interest remedy directing the respondent to consider all relevant medical tests in assessing driver risk.

7The Response raised the issue of section 34(11) of the Code on the basis that the issue of the downgrading of the applicant’s license had been dealt with by the License Appeal Tribunal (“LAT”), and that LAT’s decision had been appealed by the applicant to the Superior Court of Justice and then on to the Court of Appeal.

8In its Interim Decision 2009 HRTO 142, the Tribunal rejected the request by the respondent to dismiss the Application on the basis of section 34(11). The Tribunal also recognized an issue that had been raised by the respondent which related to the jurisdiction of the Tribunal. The Regulations to the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, contain language which exempts certain portions of the Regulations from the operation of the Code. The Tribunal directed that a hearing be held in order to determine this jurisdictional issue.

9In its Interim Decision 2009 HRTO 1360, the Tribunal held that, in the particular circumstances of the applicant's case, the language in the Regulations which exempted certain portions from the operation of the Code did not apply. Accordingly, the Application would be heard on its merits. The January 11, 2010 date was scheduled for hearing but, in the interim, the respondent brought the RFOP seeking dismissal pursuant to s. 45.1 of the Code.

The History of the LAT and Court Proceedings

10As a result of a report by the applicant's cardiologist to the respondent dated November 2, 2005, the applicant's licence was downgraded to class “G” on April 6, 2006.

11The Highway Traffic Act creates a statutory right of appeal from a decision of the Registrar of Motor Vehicles (“the Registrar”) to the LAT. The applicant exercised his statutory right by filing such an appeal.

12The LAT held a hearing and released a decision dated August 17, 2006, which upheld the decision of the Registrar to downgrade the applicant’s license. The applicant attempted to file at that hearing a large volume of documentation which had not previously been reviewed by the Registrar, and the decision indicated that the LAT was unable to make any determination without the results of an up-to-date medical assessment.

13The applicant filed a further Notice of Appeal dated October 9, 2007, which appealed the Registrar's decisions to that point in time on 19 grounds.

14One of the grounds is headed “Human Rights” and sets out that the applicant suffers from a disability within the meaning of the Code, and that the respondent must accommodate him as a result, in the form of acceptance of alternative tests of risk (as opposed to the single medical test used by the respondent in cases such as the applicant’s). A supplementary Notice of Appeal dated December 7, 2007, put forward four grounds for appeal including the following: “The decision is in breach of the Ontario Human Rights Code”.

15After the Registrar rendered a further decision which was adverse to the applicant, the LAT held a second hearing on March 5, 2008, which was more comprehensive than the first in terms of both the documentation before the LAT and in terms of the scope of the issues dealt with at the hearing. Since the initial downgrade decision by the Registrar, the applicant had been regularly filing with the Registrar updated medical assessments and other information about alternative medical tests which he asserted should be taken into account by the Registrar in her decision-making. In response to these various filings, the Registrar, with the assistance of a medical advisory committee, had been rendering what might be referred to as interim decisions responding to the applicant’s filings. In order to be as efficient as possible, the parties agreed that all of the documentation filed by the applicant and all of the interim decisions rendered by the Registrar up to the date of the March 5, 2008 hearing would be put before LAT at this second hearing. In particular, the February 11, 2008 decision of the Registrar was filed at the hearing.

16According to the respondent’s submissions at the hearing before this Tribunal, the LAT normally has a single member hear appeals. However, due to the medical and legal issues involved in the applicant's appeal, the LAT constituted a special panel for its second hearing consisting of a lawyer and a physician.

17The LAT’s second decision was comprehensive and deals extensively with the medical evidence and the applicable provisions of the Regulations under the Highway Traffic Act. The decision also contains 10 paragraphs addressing the applicant's Code arguments. In essence, the LAT found the language in the Regulations which exempts certain provisions of those Regulations from the operation of the Code to have the effect of removing the Registrar’s decisions in the applicant's case from review under the Code. However, the decision went on to indicate that if incorrect on that point, it was the LAT’s view that the applicant could not succeed under the Code in any event. The decision went through an analysis of British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 (“Grismer”), which had been relied on by the applicant in argument and applied the principles in that case to the applicant’s situation. Ultimately, the LAT found that the applicant could not be accommodated due to the nature of his disability, which was described as being episodic and unpredictable.

18The applicant appealed LAT’s second decision to the Superior Court of Justice (“Superior Court”). In his amended Notice of Appeal, one of the grounds of appeal put forward is "The decision infringes the Ontario Human Rights Code".

19Mr. Justice Aston heard the appeal on August 26, 2008 and issued a brief endorsement the following day. In denying the applicant's appeal, the Court commented that LAT's conclusion that “section 17(2) removes the standard set by the Medical Advisory Committee from review under the Ontario Human Rights Code” was questionable and not necessary to its decision. From this it can be inferred that the human rights issues were before the Superior Court.

20The applicant appealed that decision to the Court of Appeal. One of the grounds contained in the applicant's Notice of Appeal stated that if the Court’s decision on the medical aspects of the case is found to be wrong on further appeal, then the human rights issues become relevant again and the applicant would then rely on his arguments (presumably his human rights arguments) previously presented.

21The Court of Appeal rendered a brief decision dismissing the appeal dated May 21, 2009, which did not make any mention of the human rights arguments or issues.

Law Relating to Section 45.1

22The policy considerations underlying section 45.1 and the Tribunal’s jurisprudence on the section were recently summarized in Dunbar v. Haley Industries Limited, 2010 HRTO 272, at paragraphs 19 and 20:

Dismissal under section 45.1 is a discretionary remedy. In deciding whether to exercise my discretionary powers, it is worth noting some foundational principles. The Code is an important public policy statute, protecting rights which are quasi-constitutional in nature. Those rights would be meaningless without access to a mechanism for their enforcement. At the same time, responsibility for the administration of justice and the enforcement of legal rights in Ontario is spread across an array of courts and Tribunals. There are strong public policy reasons for avoiding duplication in the adjudication of cases raising substantially the same issues in multiple forums. In deciding whether to dismiss the applicant’s case, I am therefore mindful of the important balancing of interests between ensuring access to justice and avoiding the abuse of the Tribunal’s process.

In Campbell v. Toronto District School Board, 2008 HRTO 62, the Tribunal discussed some principles that apply to the interpretation of s. 45.1. They include:

• Section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;

• The discretion given to the Tribunal in s. 45.1 is at least as broad as the doctrines of issue estoppel and abuse of process;

• In determining whether another proceeding has appropriately dealt with the substance of the Application, the Tribunal should not be overly technical;

• The Tribunal does not act as an appellate court from the decisions of other Tribunals, and the Tribunal need not be satisfied that it would have reached the same conclusion as that reached in the other forum.

23In Haykin v. Roth, 2009 HRTO 2017, the Tribunal addressed the purpose of s. 45.1. Reviewing previous decisions, the Tribunal noted that

It is clear from these decisions that the Tribunal places a high value on the finality of litigation, judicial economy and the recognition of the jurisdiction of other adjudicative bodies under the Code. In applying section 45.1, however, the principal concern is not whether there has been related or parallel litigation, but whether the applicant has already had a full and fair opportunity to have the human rights claim considered by an adjudicator who had the jurisdiction to interpret and apply the Code.

24The specific considerations and tests for the application of section 45.1 were recently set out in Paterno v. Salvation Army, Centre of Hope, 2010 HRTO 10 at paragraph 9:

In other decisions, the Tribunal has stated that section 45.1 should be considered in two parts: (a) where there was another “proceeding”, and (b) if so, whether it “appropriately dealt with” the substance of the Application, see for example Carlos v. 1174364 Ontario, 2008 HRTO 403. With regard to the second issue, the Tribunal may consider whether the Application arises from the same facts that provided the basis for the other proceeding, whether the substance of the issues raised in each forum was substantially the same, and whether the matter raised was “appropriately dealt with” in the other proceeding: Keeling v. General Motors of Canada Ltd., 2009 HRTO 1110, Campbell v. Toronto District School Board, 2008 HRTO 62, Dunn v. Sault Ste. Marie (City), 2008 HRTO 149.

24I adopt the above statements about the principles and purposes of section 45.1.

The positions of the parties

25In its RFOP, the respondent seeks the dismissal of the Application on three grounds:

a) section 45.1;

b) issue estoppel; and

c) abuse of process.

26With respect to section 45.1, the respondent argued that the proceedings before LAT and the Courts constituted a "proceeding", and that, in those other proceedings, the same facts and issues were considered. Consequently, the substance of the Application before this Tribunal had been "appropriately dealt with" within the meaning of section 45.1.

27In view of my disposition of the RFOP below, it is not necessary to review the respondent’s submissions on the remaining issues.

28The applicant made the following submissions:

• the decision letter which is the subject of the Application to this Tribunal is dated February 11, 2009, which is long after the applicant’s appeal to LAT (this turns out to be wrong-the decision letter which is the subject of the Application to this Tribunal is February 11, 2008);

• each decision issued by the Registrar is a "decision de novo", accordingly, the decision or decisions that are the subject of this Application are different from the one appealed to LAT and the courts;

• if a driver has the right to appeal a decision to LAT but decides that the issues are primarily human rights issues, he has the right to direct a different Application towards the Tribunal, especially if there are substantial differences in the case now being made from earlier proceedings;

• to escape the effect of section 45.1, it should not be necessary that the facts and arguments presented in an Application be totally different from those ever presented at any other proceeding; only that they be sufficiently different that they may reasonably lead to a different result;

• the LAT decision did not deal appropriately with the substance of this Application. That decision did not even make a finding that there was discrimination, which is a necessary component of any human rights analysis. In addition, LAT described the accommodation being sought by the applicant as being an order that the respondent issue a “B” license to him, whereas in fact the accommodation being sought is the acceptance of alternative tests of risk (as opposed to the use of the single test used by the respondent);

• the LAT decision decided that the Code did not apply in the applicant's case. This has been shown to be wrong by the Tribunal's Interim Decision dated August 31, 2009 [2009 HRTO 1360], which decided that the language in the Regulations under the Highway Traffic Act which purports to exempt certain portions of those Regulations from the Code did not operate in his case;

• the Grismer case was misapplied by LAT and, in any event, that case was not decided under the Code;

• the Tribunal should only apply section 45.1 where there is overwhelming evidence that an Application is a complete duplication of another proceeding;

• the Superior Court decision did not deal directly with the application of the Code, and only mentioned that the Justice considered one of the conclusions of LAT to be questionable; and

• the Court of Appeal decision does not mention the Code and did not deal at all with its applicability.

Analysis and Decision

29The first question to be addressed is whether or not the proceedings before the LAT constitute a "proceeding" for the purposes of section 45.1. In Campbell, supra, the Tribunal held that that term should encompass any formal legal proceeding where issues are dealt with in a manner consistent with the requirements of Canadian law, affording all parties due process and procedural fairness.

30I have no difficulty finding that the proceedings before the LAT constitute a “proceeding”. The LAT is a statutory tribunal created under the Licence Appeal Tribunal Act, S.O. 1999, c. 12, Sch. G, as amended, that is mandated by statute to review decisions concerning licensing activities regulated by the respondent. In this case, there was the opportunity provided for the applicant to file extensive documentation prior to or at the hearing, and he was represented by legal counsel at the second LAT hearing. There is no doubt that he was afforded procedural fairness.

31With respect to the second question as to whether or not the LAT proceedings “appropriately dealt with” the substance of this Application, it is necessary to review the factors set out above in the excerpt from Paterno, supra.

Do the two proceedings arise from the same set of facts?

32The background facts to the LAT proceeding and this Application are substantially the same if not identical. They arise out of the fact that the applicant was diagnosed with a heart condition which was reported to the respondent, as a result of which the applicant's driver's license was downgraded. The human rights issues which arise in both proceedings deal with the interpretation of the same set of facts and the potential application of the Code and the duty to accommodate to that set of facts.

33The applicant argued before this Tribunal that he intended to file further materials such as medical research articles and the like in the event that this Application proceeds to hearing on its merits. In my view, that does not alter the fact that the same set of facts are engaged in both proceedings.

Is the substance of the issues the same in both proceedings?

34There is a slightly different focus in terms of the issues to be dealt with in both proceedings. In the proceedings before the LAT, the main focus was the application of the Regulations which set out the requirements for the holding of a driver's license in the province of Ontario to the applicant’s circumstances. That required an analysis by the LAT of those Regulations and the medical evidence put before it. However, the applicant raised the issue of the application of the Code as part of his appeal from the decision of the Registrar. Accordingly, the LAT addressed that issue and, as described above, engaged in a thorough analysis of the applicant's claim for accommodation under the Code. With respect to the applicant’s argument that the LAT failed to address the issue of discrimination in its decision-making, I find that that issue can be inferred from the decision, in that it is relatively obvious that the discrimination involved is the downgrading of the applicant's driver's license.

35The focus of the Application before this Tribunal is the applicant’s claim for accommodation under the Code and, potentially, the respondent’s defence of undue hardship. Both issues were dealt with by LAT in its second decision.

36I therefore find that the substance of the issues dealt with and to be dealt with in the two proceedings is the same.

Did LAT appropriately deal with the substance of this Application?

37The respondent relied upon Villella v. Vancouver (City), 2005 BCHRT 405, a decision of the British Columbia Human Rights Tribunal which interpreted a similar provision in the British Columbia Human Rights Code:

[T]he Tribunal should consider whether the complaint, in its essence or pith, was dealt with in a manner suitable or proper to that essence or pith. This, in turn suggests that the appropriate manner of dealing with a complaint may differ depending on the essential nature of the complaint in issue. Further, the Tribunal should be concerned with the substance as opposed to the form of the manner in which the complaint was dealt with, focusing on the substance as opposed to the details of the matter. The question is not […] whether the complaint was decided correctly in the other forum.

38The substance of this Application is the applicant’s claim, as a person with a disability, to accommodation pursuant to the Code. Although he suggests in argument that the LAT misconstrued the exact type of accommodation that he was seeking, it is clear to me that LAT in fact directly addressed the accommodation that he says he is entitled to, that being the consideration of alternate tests of risk.

39Despite the fact that the LAT decided that the language in the Regulations under the Highway Traffic Act excluded the operation of the Code, and despite the fact that this Tribunal has found otherwise, I am satisfied that the LAT conducted a thorough analysis of the applicant's claim for accommodation using proper human rights principles and cases. As stated above, the question is not whether this Tribunal is of the view that the other decision-maker was wrong or right; the question is whether or not the substance of the applicant’s Application was “appropriately dealt with” in the other proceeding by means of an adequate consideration of the relevant human rights principles.

40I am reinforced in this approach by another decision of the British Columbia Human Rights Tribunal, Rush v. City of Richmond, 2008 BCHRT 62, in which that Tribunal stated at paragraph 76:

The Tribunal has held that the question of whether a matter has been appropriately dealt with in another proceeding does not include an assessment of whether the Tribunal would have conducted the assessment in an identical manner or whether it considers the decision correct: Villella, para. 22; Migliorini v. Greater Victoria Public Library, 2005 BCHRT 47, para. 14. As the Tribunal stated in Villella, the appropriate role for the Tribunal is to determine whether the arbitrator proceeded fairly and upon the proper principles, with due consideration of the facts and human rights law relevant to the discrimination issue before him: para. 22.

41With respect to the applicant’s argument that the decision or decisions that were before the LAT are different from those that would be before this Tribunal, I find that all decisions rendered by the Registrar that postdate the Registrar's original decision to downgrade the applicant's driver's license are simply confirmatory of that original decision. Furthermore, for the purposes of section 45.1, I find that nothing turns on the fact that the applicant may be filing further materials at this Tribunal that were not filed at LAT, as that does not change the fact that the LAT provided a full opportunity to the applicant to present his human rights arguments and evidence.

42I reject the applicant's argument that to escape the effect of section 45.1, it is only necessary that the facts and arguments presented in an application be sufficiently different that they may reasonably lead to a different result. As noted above, the fact that this Tribunal might have arrived at a different result on the accommodation issue from that arrived at by the LAT is immaterial to the section 45.1 analysis.

43I also reject the applicant's argument that section 45.1 should only be applied where there is overwhelming evidence that an application is a complete duplication of another proceeding. That proposition simply does not accord with the cases referred to above.

44With respect to the Superior Court and Court of Appeal decisions, their relevance to the section 45.1 issue is that, as a result of their denial of the applicant’s appeal of the LAT decision, that decision became final. Otherwise, it is the LAT decision that must be analyzed, as I have done above, in order to determine whether or not that decision “appropriately dealt with” the substance of this Application.

45In my view, the policies that underlie section 45.1 such as the avoidance of duplication of adjudication in multiple forums and the potential for inconsistent results, not to mention the conservation of the parties’ and the Tribunal’s resources, are engaged in the circumstances of this case.

46For all these reasons, I find that the proceedings before the LAT “appropriately dealt with” the substance of the Application before this Tribunal. The Application is dismissed.