Howden v. Ontario (Transportation), 2011 HRTO 1280

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: Mary Truemner

Date: July 5, 2011

Citation: 2011 HRTO 1280

Indexed as: Howden v. Ontario (Transportation)

1This Application alleges that the respondent discriminated against the applicant with respect to services on the basis of disability contrary to s. 1 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The Tribunal reviewed the Application and issued a Case Assessment Direction (“CAD”) directing that a Summary Hearing be held to deal with the issue of whether the Application has a reasonable prospect of success in light of the doctrine of res judicata.

Background

2The applicant has a heart-related disability and his medical tests apparently revealed that his left ventricular function does not meet a minimum ejection fraction of 35%. It is the respondent’s policy that failure to meet this 35% standard disqualifies a driver from a class “BZ” licence. The applicant claims that the respondent’s decision to downgrade his driver’s licence from a class “BZ” to a class “G” and the respondent’s continued refusal to reinstate his class “BZ” licence constitute discrimination because of disability.

3The applicant has unsuccessfully applied to the respondent on numerous occasions for a review of its decision to downgrade his licence and its refusal to revisit that decision. He has appealed decisions of the respondent to the Licence Appeal Tribunal (the “LAT”) and has also unsuccessfully appealed a decision of the LAT to the Superior Court of Ontario and the Court of Appeal for Ontario. The applicant takes the position that there is new evidence to support his position that the ejection fraction test is not a good measure of his ability to hold a class “B” licence.

4The CAD noted that the applicant raised the very issues in this Application in a previous application before the HRTO that he filed in 2008. The HRTO dismissed that previous Application under section 45.1 of the Code based on the previous LAT and court proceedings that it found appropriately dealt with the same issues: see Howden v. Ontario (Transportation), 2010 HRTO 515, and Howden v. Ontario (Transportation), 2010 HRTO 1189, refusing reconsideration.

5The Summary Hearing on the issue of whether the present Application has a reasonable prospect of success in light of the doctrine of res judicata took place on March 23, 2011, at which time the applicant provided brief oral argument, explaining that he preferred to rely on his previously filed written submissions. At the beginning of his written submissions, the applicant took the position that the Tribunal should not be inquiring into the issue of res judicata because s.45.1 of the Code specifically deals with duplicative proceedings:

s.45.1 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.

6While I agree that both are safeguards against re-litigating the same issues and facts, there are subtle differences, and the parties were directed in the CAD to deal with whether the Application has a reasonable prospect of success in light of the doctrine of res judicata only. Given my decision to dismiss the Application because it is barred by the doctrine of res judicata, there is no need to review the applicant’s s.45.1 submissions.

The Previous Application

7The applicant’s previous Application filed in 2008 alleged the following in response to the question “What happened?”:

The Minister of Transportation “downgraded” the applicant’s drivers licence from BZ (large buses including school buses) to G (small vehicles generally including up to 10 passengers plus a driver)

8Elsewhere in the previous Application, in response to a direction to explain how any law being challenged relates to equal treatment, the applicant indicated:

Section 17.(1) of O/Reg. 340 says that any commercial driver must have “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.” The problem is not so much with this law, although it is not very specific and requires a lot of interpretation, but that the MTO will only accept one medical test as determinat of the risk stated, and that test is not the most relevant test today. [Emphasis added]

9It is useful to reference parts of the Tribunal's decision which dismissed the applicant's previous Application in order to determine whether the present Application must be barred under the principle of res judicata. Relevant portions of paragraphs 10 to 46 of that decision are reproduced below with underscoring added:

As 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.

The 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.

The 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.

The 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.

One 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”.

After 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.

According 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.

The 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 (S.C.C.), [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. …

The 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.

The 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?

There 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. …

The 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. …

With 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. …

I 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. …

In 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.

For 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.

The Current Application

10In this Application, the applicant states the following in response to the question, “What happened?”:

The Minister of Transportation “downgraded" my driver's license from BZ (large buses including school buses) to G (small vehicles generally including up to nine passengers plus a driver).

This was done because I have dilated cardiomyopathy with an ejection fraction of <35%. The contention of the MTO is that an ejection fraction of <35% poses too great a risk for a person to hold any commercial drivers license.

It has been a consistent requirement of all of the MTO's decisions on this matter that the applicant must demonstrate a minimum left ventricular ejection fraction of 35%. The clinical trial in the USA which led to the current therapy for this condition and a more recent study in Nova Scotia do not support this view.

11Basically, the above explanation for why the applicant is filing his current Application is the same as the explanation he provided in his previous Application, except that the final sentence implies that the applicant has other evidence now to demonstrate that the respondent’s method of determining whether a driver may hold a “BZ” licence is imperfect and, possibly, inadequate.

12In his submissions, the applicant acknowledged that he is raising, in this Application, the same issues argued in previous proceedings. He claims, however, that he is now relying on new “facts” that he did not have earlier, particularly two medical studies – the U.S. Carvedilol Study (1996) and the Dalhousie Study (2007). His position is that this further research would prove that he no longer has any form of heart disease which is “likely to interfere with the safe driving of a motor vehicle of the applicable class,” given his current drug therapy. He states:

While the facts about my condition remained largely the same as at the LAT, different facts about my disability generally are now available which were unknown to me or nonexistent at the time of the LAT hearing. The LAT hearing was about the best way - which medical tests - should be used to evaluate my risk to safety on the road, while the present application contends that my condition poses no such risk. The US carvedilol study and the more recent Dalhousie study passed a very different perspective on dilated cardiomyopathy, especially on those who are mildly affected and receiving current drug therapy.

13The applicant claims that the present Application raises the issue that appropriate drug therapy reduces his risk to an acceptable level, and that this issue was never heard at the LAT. He admits, however, that the issue related to the efficacy of current drug therapy was mentioned briefly in his reasons for appeal submitted to the LAT. He states, “While the above issue may have been available for consideration at the LAT hearing, no one present realized its true importance of the time; and thus the issue was not actually ‘dealt with’ in any way by the LAT.”

14On the evening after the Summary Hearing, the applicant e-mailed the Tribunal and the Respondent to clarify that the only issue he is raising in his Application is an issue of current therapy. This e-mail was filed after the Summary Hearing, and therefore will not be a part of the Summary Hearing record, but I note that the applicant meant it to be a clarification only.

Is the Current Application Barred by Virtue of Res Judicata?

15In Snow v. Honda of Canada Manufacturing, 2007 HRTO 45, the Tribunal explained the doctrine of res judicata at para. 40 as follows:

There are two principal branches of the doctrine of res judicata. The first branch is known as issue estoppel. Issue estoppel applies where there are common issues in the two proceedings. The issues in question in the second proceeding must have been necessary to the decision in the first proceeding. Depending on the nature of the issue in respect of which the estoppel is being raised, issue estoppel may bar relitigation of only a discrete issue or it may bar the second action in its entirety. (O’Connor, supra at para 24). The second branch of res judicata, known as "cause of action" estoppel, is not raised in this case.

16In the same decision the Tribunal went on to note at para. 41 that the criteria to be met for issue estoppel to apply are as follows:

• The same questions are being decided in both proceedings;

• The judicial decision which is said to create the estoppel is a final decision;

• The parties, or their privies, are the same.

a) Are the same questions being decided in both proceedings?

17For the purposes of assessing whether the Tribunal’s decision dismissing the previous Application decided the question or issue in this current Application, one might simply state that both the previous Application and this one raised the question or issue of whether the respondent’s refusal to allow the applicant a class “BZ” licence was discriminatory. That issue was before the LAT, the Tribunal in the previous proceeding, and the Tribunal now. The issue in both Applications is more complex, however. It asks the question of whether the respondent violated the Code by refusing to accept alternative tests of risk (as opposed to the single test of an ejection fraction of 35% used by the respondent). That issue was also before the LAT, the Tribunal in the previous proceeding and the Tribunal now. In fact, the applicant argues that the real question in this Application is whether the respondent violated the Code by failing to consider certain general medical studies and the applicant’s current drug therapy. He argues that this question was not an issue in his previous Application. I disagree. As stated above, the applicant concedes that the issue related to the efficacy of current drug therapy was mentioned in his reasons for appeal submitted to the LAT. The LAT proceedings were reviewed by the Tribunal in its decision dismissing his previous Application under s.45.1 of the Code, and I therefore find that the issue was before the LAT, the Tribunal in the previous proceeding and the Tribunal now.

18The applicant indicated, “While the above issue may have been available for consideration at the LAT hearing, no one present realized its true importance at the time; and thus the issue was not actually ‘dealt with’ in any way by the LAT.” This attempt to escape the doctrine of res judicata cannot succeed. The applicant himself referred to Chafchak v. Hungry Howie's Pizza & Subs Inc., 2007 CanLII 5523 (ONSC), a decision that describes the principle that res judicata includes an assessment of whether a party, exercising reasonable diligence, should have argued an issue. Given that the two studies cited in this Application, the ones supporting the applicant’s assertion that drug therapy is an important factor to be weighed, were available to the public at the time of the previous proceeding before the Tribunal; given that the issue of current drug therapy was stated in his reasons for appeal submitted to the LAT; and given that the appeal to the LAT was reviewed by the Tribunal in the context of his previous Application, it is immaterial that the applicant chose not to press the issue at either the LAT or the Tribunal. He should have.

19I am not swayed by the applicant’s written submission that failure to press the issue in previous proceedings may be excused because he is disabled and therefore cannot be expected to be an expert on his disability. I do not agree that the applicant may escape the principles of res judicata because the applicant’s reasons for appeal submitted to the LAT did in fact refer to the efficacy of current drug therapy. I also note that the applicant’s submissions are articulate and filled with medical terminology and references. Finally, the applicant provided no reasons as to why the mere fact that he is disabled restricted him from properly litigating before the LAT or the Tribunal, or affected his ability to retain counsel or medical expertise.

b) Was the Tribunal’s decision dismissing the previous Application a final decision?

20The Tribunal refused a request to reconsider its decision dismissing the previous Application, and no judicial review was made. The decision is therefore final.

c) Are the parties in the previous Application the same as the parties in the current Application?

21The parties in the previous application are the same as the parties in the current Application.

Conclusion

22I find that the Application is barred by the doctrine of res judicata and is dismissed accordingly.