HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Kenneth Mortillaro
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation
Respondent
DECISION
Adjudicator: Kaye Joachim
Indexed as: Mortillaro v. Ontario (Transportation)
Appearances
) Kenneth Mortillaro, Applicant ) Self-represented )
)
Her Majesty the Queen in Right of Ontario )
as represented by the Minister )
of Transportation, Respondent ) Zachary Green, Counsel
)
1This is an Application made under s. 53(5) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), dated May 15, 2009. The underlying complaint was filed with the Ontario Human Rights Commission on October 26, 2007.
2The applicant’s complaint relates to the suspension of his driver’s license in June 2007 due to his medical condition of alcoholism/addiction. The applicant alleges that the practice of automatically suspending a person’s driver’s license on the basis of a letter from a medical practitioner because the person is diagnosed as an alcoholic is discriminatory and contrary to section 1 of the Code.
Background
3In 1998 the applicant’s driver’s licence was suspended for an impaired driving conviction. The respondent Ministry of Transportation required the applicant to have an Alcohol Assessment Form completed by a physician specializing in Addiction Medicine before they would consider reinstating his driver’s licence. The applicant was assessed by Dr. Chan who concluded that the applicant did not have alcohol dependence. The respondent did not accept this assessment and the applicant’s licence remained suspended for failure to submit the required medical report.
4The applicant attended various patient rehabilitation centres for alcohol dependence in January 2006, June 2006 and April 2007. In April 2007 he had a relapse and attended at the emergency centre of a hospital. The attending emergency room physician completed a medical condition report stating that the applicant had the condition of alcohol and drug dependence that may make it dangerous for the person to operate a motor vehicle.
5The Registrar of Motor Vehicles reviewed the physician report and the applicant’s driving record and suspended the applicant’s licence on medical grounds under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“HTA”).
6The Registrar determined that the applicant did not meet the medical standard set out in s. 14(b) of O. Reg. 340/94. Section 14(b) provides that a licence holder must not “be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.” HTA s. 203(1); O. Reg. 340/ 94, s. 14(b).
7The Registrar sent a Notice of Suspension to the applicant in April 2007. The Notice advised that that he may seek reinstatement upon submission of a medical report confirming that he had been abstinent from alcohol for a period of one year. The period may be reduced if he provided confirmation that he had successfuly completed a treatment program for substance abuse and a supportive and favorable recommendation from an addiction medicine specialist. The report must also include regular urine toxology screening.
8In August 2007 the applicant’s physician, Dr. Lefebvre, sent a report to the Registrar advising that the applicant had been abstinent since the April 2007 relapse (three months) and asking that the Registrar consider reinstating the applicant’s license. Dr. Lefebvre advised that she would continue following the applicant closely and would report to the Ministry should she have any concerns regarding his fitness to drive.
9The Registrar reviewed the medical report and was not satisfied that the applicant’s license should be reinstated. The Registrar responded in September 2007 advising that having reviewed the report they were not satisfied that the applicant’s license should be reinstated at that time, and that a longer period of stability is necessary to ensure that his condition was adequately controlled.
10In October 2007 Dr. Lefebvre wrote another medical report recommending that the applicant’s license be reinstated. Dr. Lefebvre noted that the applicant had been abstinent since April 2007 (six months) and was regularly attending Alcoholics Anonymous (“AA”) meetings.
11The Registrar reviewed the medical report and forwarded the applicant’s request for reinstatement to the Medical Advisory Committee. The Medial Advisory Committee recommended a longer period of abstinence, noting that the applicant had a lengthy history of addiction and three incidents involving impairment. In November 2007 the Registrar again refused to reinstate the applicant’s license at that time.
12In April 2008 Dr. Lefebvre confirmed that the applicant had been abstinent for one year and was regularly attending AA meetings. In May 2008 the Registrar confirmed that the applicant’s license would be reinstated.
Preliminary Issues
13Subsequent to the hearing the applicant wrote to the Tribunal citing section 203(3) of the HTA:
The report referred to in subsection (1) is privileged for the information of the Registrar only and shall not be open for public inspection, and the report is inadmissible in evidence for any purpose in any trial except to provide compliance with subjection (1).
14The applicant submitted that the report of the emergency room physician was privileged and could not be referred to or relied upon by the respondent in this Application.
15The respondent submitted that the s. 203 privilege is expressly restricted to trials and does not apply to other types of proceedings such as appeals to the Licence Appeals Tribunals (“LAT”) or a human rights application.
16It is in fact common for s. 203(1) reports to be considered in LAT proceedings. See e.g. [2005] O.L.A.T.D. No. 106; [2006] O.L.A.T.D. No. 139; [2008] O.L.A.T.D. No. 222; [2009] O.L.A.T.D. No. 122; [2009] O.L.A.T.D. No. 129; [2009] O.L.A.T.D. No. 158. A section 203(1) report was considered by the Court of Appeal in Howden v. Ontario, [2009] O.J. No. 2031 (C.A.). The Human Rights Tribunal has also considered s. 203(1) reports in prior decisions. See 2010 HRTO 515 and 2010 HRTO 1884. It would be impossible for administrative tribunals to review the Registrar’s exercise of discretion under the HTA if s. 203(1) reports were inadmissible before such tribunals.
17I agree with the respondent that it would nonsensical to apply the s. 203 privilege to this human rights Application. The applicant cannot assert discrimination on the basis of the medical report and at the same time claim privilege over it in the same proceeding.
EXPERT EVIDENCE
Evidence of Dr. Judson
18Dr. Martyn Judson is an assistant professor of Psychiatry at the University of Western Ontario and Medical Director of Clinic 528 (methadone replacement treatment centre). Since 2007 he has served as a member of the Ministry of Transportation’s Medical Advisory Committee, and in this capacity reviewed complex alcohol and substance abuse cases to determine whether the driver’s medical condition is likely to significantly interfere with his or her ability to drive safely. Dr. Judson testified about substance addiction, road safety risks and the relationship between abstinence and road safety risks.
19Dr. Judson testified that the Diagnostic and Statistical Manual of Mental Disorders (“DSM-IV”), used by medical practitioners to diagnose mental health disorders defines and describes substance dependence (which is also known as addiction) as a maladaptive pattern of substance use, leading to clinically significant impairment or distress as manifested by three or more of the following occurring at any time in the same twelve month period:
i. Tolerance, as defined by either of the following:
a. a need for markedly increased amounts of the substance to achieve intoxication or desired effect.
b.markedly diminished effect with continued use of the same amount of the substance.
ii. Withdrawal, as manifested by either of the following:
a. the characteristic withdrawal syndrome for the substance.
b. the same or a closely related substance is taken to relieve or avoid withdrawal symptoms.
iii. The substance is often taken in larger amounts or over a longer period than was intended.
iv. There is a persistent desire or unsuccessful efforts to cut down or control substance use.
v. A great deal of time is spent in activities necessary to obtain the substance (e.g. visiting multiple doctors or driving long distances), use the substance (e.g. chain-smoking), or recover from its effects.
vi. Important social, occupational, or recreational activities are given up or reduced because of substance use.
vii. The substance use is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance (e.g., current cocaine use despite recognition of cocaine-induced depression, or continued drinking despite recognition that an ulcer was made worse by alcohol consumption).
20Substance dependence is considered a disease entity because in this condition individuals are unable to control their substance use once an addictive chemical is ingested. Definite neuro-chemical changes and psychological influences are contributing factors to such loss of control.
21“Substance dependence” encompasses both alcohol and drug dependence, although sometimes it is used colloquially to refer to drug dependence. The term alcoholism has become effectively a lay term which encompasses both alcohol abuse and alcohol dependence.
22Once an individual is diagnosed as substance dependent (or addicted), the condition is deemed chronic and the person suffers with that condition for life, although the aim of treatment is to render that condition not just asymptomatic (abstinence) but inactive (remission).
23Dr. Judson testified with respect to the risk of impaired driving. As an individual’s blood alcohol level rises, the more significant the impairment of driving skills caused by delayed reflexes and reaction times and loss of co-ordination becomes. The ability to process information and execute decisions is compromised. Overt signs of intoxication are less likely in an individual who has become tolerant to the use of that substance. The legal limit of a blood alcohol level of 80 mg % was set previously on account of the most tolerant alcohol consumers being impaired to the extent that they too could pose a risk whilst operating a motor vehicle if that was their blood alcohol level. A blood alcohol level of 80 mgs/100ml of blood would be exceeded in a male who had ingested three standard drinks in one hour or less.
24Any individual who consumes alcohol or ingests a potentially addictive substance is at risk of experiencing negative consequences, which may include the inability to operate a motor vehicle safely, but the risk increases with the frequency of an individual’s use or abuse of alcohol or a drug. An individual who misuses alcohol or a drug on a single occasion may be impaired and pose a driving risk in that instance. The more an individual uses a substance, the greater the risk for inappropriate use, and the escalation of abuse to addiction. An individual who suffers with addiction or dependence poses the greatest driving risk for the reasons discussed below, which include:
withdrawal seizures;
a greater likelihood that an individual will be using a mood altering substance at any given time and will drive while under the influence;
impaired judgment, including a decreased ability to assess whether it is safe to drive;
in some cases, long-term histological and neuro-chemical changes in the brain, which impair cognitive functioning;
the risk of relapse; and
the risk of the post-acute withdrawal syndrome once abstinent.
25Alcohol or drug dependence is a chronic, potentially relapsing disease associated with inability to control ingestion of the substance, which obviously poses a driving risk. The extent of the driving risk posed by a dependent person will depend on more than just substance use, because even if a substance has not actively been ingested recently, the addictive thought processes may contaminate cognitive functioning and driving ability.
26Alcohol dependent individuals may have persistently elevated steady state blood levels of alcohol which interfere with psychomotor functioning. For instance, they may continue to be impaired in the morning, after an evening of drinking, despite exhibiting few overt signs of intoxication.
27Alcohol and drug dependent individuals may have impaired judgment, and tend to minimize or downplay the risks associated with their behaviour, including the risk of driving impaired. They may have a diminished ability to separate drinking or ingesting drugs from driving. If an individual is living impaired, the chances are significant that they are driving while impaired.
28Alcohol and drug dependent individuals are at risk for relapse, which is greatest within the first 6-12 months.
29Over time, alcohol and substance use may lead to histological and neuro-chemical changes in brain tissue, which are more marked in those who are substance dependent. Cognitive skills are impaired and the processing of information is delayed, which may have significant implications for driving safety. Memory and concentration may also be affected, and blackouts may occur.
30With abstinence, as set out below, these abnormalities gradually reverse, but that can be delayed for one to two years, which explains the persistence of the Post-Acute Withdrawal Syndrome in alcohol and drug dependent patients. The Post-Acute Withdrawal Syndrome is a constellation of psychological and behavioural symptoms, which may include mood swings, cognitive impairment, memory problems, anxiety, irritability, tiredness, impaired concentration, physical coordination problems, difficulty making decisions and disturbed sleep. These symptoms may persist up to two years after the last substance use.
31The DSM-IV defines full sustained remission of the condition of alcohol or drug dependence (addiction) as one year of abstinence from all addictive substances.
32It takes at least one year for individuals to adjust psychologically and cognitively to not drinking. While continued improvements may be seen after the first year, the greatest improvement happens within the first twelve months of recovery. It also takes time for the histological and neuro-chemical changes due to heavy drinking to resolve or improve. Within a year of abstinence, 90% of the symptoms of the Post-Acute Withdrawal Syndrome ameliorate and studies have shown that histological and neuro-chemical disruptions caused by toxic amounts of alcohol are effectively reversed.
33An individual’s chances of recovery are significantly improved by participation in a treatment or recovery program under the supervision of an addiction specialist. Without treatment, active and symptomatic alcohol and drug dependent individuals may repeatedly intend or attempt to abstain because of the adverse consequences stemming from their use of chemicals, but unfortunately continue to misuse substances.
34In many cases, treatment will help to expedite the recovery process. The goal of treatment is to provide healthy coping mechanisms. Addiction specialists are particularly able to assist and identify markers of progress. Completion of formal treatment often expedites attitudinal and behavioural changes, thereby permitting the possible reinstatement of driving privileges after a shorter period of time, such as six months.
35Alcohol or drug dependence does not mean an individual will have a life-long incapacity to drive safely. Experts in alcohol and drug dependence and its treatment will support the reinstatement of driving privileges if they are satisfied that an individual has the substance dependence under control.
Evidence of Tamara Bishop
36Tamara Bishop has been employed in the Driver Improvement Office (“DIO”), Ministry of Transportation (“MTO”) since 2000. Ms. Bishop gave evidence with respect to the mandate of the DIO, which is to improve road user safety and mobility in Ontario. This mandate is achieved through driver programs based on legislation and policy. One of the programs administered by DIO is the medical review program, which is administered by the Medical Review Section of the DIO. The medical review program seeks to balance the needs of individual drivers, with respect to mobility, with the road safety of all drivers. The primary tasks of the Medical Review Section are to screen and prioritize incoming medical reports, assess road safety risk and make recommendations to the Registrar with respect to suspending, downgrading, or reinstating driving privileges.
37Ms. Bishop gave evidence with respect to the sources from which cases may come to the Medical Review Section for review, which include, as in this case, mandatory reports from a physician under s. 203 of the HTA. Section 203 requires physicians to report to the Registrar any person attending upon the physician for medical services who, in the opinion of the physician, is suffering from a condition that may make it dangerous for the person to operate a motor vehicle.
38The Medical Review Section of the DIO is staffed by medical analysts who are responsible for reviewing and processing medical reporting forms received from doctors under s. 203 of the HTA who are responsible for reviewing and processing files with more complex medical information. Analysts may refer complex cases to the MTO’s Medical Advisory Committee (“MAC”), which is comprised of 25 physicians, including specialists in the fields of cardiology, psychiatry, endocrinology, ophthalmology, internal medicine, geriatric medicine and substance dependence. MAC reviews the cases and makes recommendations to the Registrar. Recommendations may include a license suspension, reinstatement, the continuation of a suspension, a request for additional information, or the downgrading of a commercial class license.
39The basic medical standards (commercial licensees are subject to additional medical requirements) are set out in s. 14 of O. Reg. 340/94. Section 14 provides that:
- An applicant for or a holder of a driver’s licence must not,
(a) suffer from any mental, emotional, nervous or physical disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely; or
(b) be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.
40Where an individual does not meet the medical standards, the Registrar may issue a discretionary license suspension on medical grounds pursuant to s. 47(1) of the HTA. Medical suspensions under s. 47(1) may be appealed to the LAT.
41Ms. Bishop testified that the Medical Review Section applies s. 14(b), pursuant to the applicable National Medical Standards (found in the Canadian Council of Motor Transport Administrators’ (“CCMTA”) Medical Standards for Drivers and the Canadian Medical Association’s (“CMA”) Determining Medical Fitness to Operate Motor Vehicles) and the DIO policy guidelines in cases of substance dependence.
42The CCMTA is the umbrella organization created by the provinces and the government of Canada to reach common agreement on policies affecting road safety. The medical standards set by the CCMTA are developed by medical advisors and administrators from Canadian provincial driver licensing bodies, and are part of a larger CCMTA document known as the National Safety Code. The CCMTA medical standards are based on consensus medical opinion, and in many cases are adopted from the CMA’s Determining Medical Fitness to Operate Motor Vehicles.
43The CMA is a respected policy body and, through its periodic revisions to its guide, physicians of different specialties are able to refine the suggested standards for medical fitness as knowledge and understanding of those conditions evolves. Physicians will generally use DSM-IV criteria in assessing abuse or dependence on drugs or alcohol. The National Medical Standards are used by physicians to help assess whether to report drivers as a possible safety risk under s. 203 of the HTA, and also by MTO and other provincial licensing authorities to assess driver fitness and make licensing decisions.
44Ms. Bishop also testified with respect to the DIO policy guidelines, which are adapted from the National Medical Standards, but provide analysts with more detail about the application of these standards in individual cases. The DIO policy guidelines with respect to the medical review process are reviewed and updated periodically in accordance with developments in medical standards and best practices, as well as statistical analyses of driver data performed by MTO staff.
45Ms. Bishop testified with respect to the review and update to the DIO medical review policy with respect to substance dependence cases in 2007 to provide for immediate suspension in cases of reported alcohol or drug dependence under s. 203 of the HTA, and about the statistical analysis that supported the change. Under the previous policy guideline, in cases of reported dependence where the medical report provided little or no information about the degree of risk to road safety or about the treatment plan, additional information was requested from the driver before a decision was made with respect to suspension. Analysis by MTO staff of alcohol dependence cases in 2007 showed that in 80% of cases in which a decision was deferred pending receipt of additional information, the additional information (or the on-going failure to file the requested additional information) ultimately resulted in a decision to suspend.
46Similarly, in drug dependence cases, in 83% of the cases in which a decision was deferred pending receipt of additional information, the additional information (or the on-going failure to file the requested additional information) ultimately resulted in a decision to suspend.
47These findings led to the policy change with respect to immediate suspensions in 2007. The policy change also coincided with revisions to the s.203 HTA medical reporting form, which no longer asks doctors to specifically opine on the degree of the risk to road safety.
48These policy changes began to be implemented in June 2007 shortly before the medical suspension was issued in this case. Policy manual guidelines setting out the updated policy were formally issued in June 2008 and incorporated into the DIO Policy Manual in its May 2009 version. The DIO guidelines now recommend immediate license suspension in cases of reported substance dependence, with reinstatement possible upon receipt of a report from a specialist in addictions medicine or a physician familiar with the individual’s medical history, which includes confirmation that the individual has been abstinent from alcohol and drugs for 12 months, supported by bio-chemical markers. Program practice is also to require urine drug screen toxicology where appropriate. Earlier re-license may be considered on the basis of an individualized assessment of factors such as a favourable recommendation from an addictions specialist or a physician familiar with the individual’s medical history and the successful completion of an alcohol or drug dependence treatment program.
49In practice, because each situation is unique, whether a suspension is issued or whether early reinstatement is granted in a particular case depends on a review of all of the available driver information, the relevant policy documents, and the National Medical Standards. When an unsolicited report is received from a physician in compliance with s. 203 of the HTA, it is screened for name, address, date of birth and licence number and matched with the individual’s driving record. The analysts will review the driver’s driving record and, in conjunction with the National Medical Standards and the DIO policy guidelines, analysts will consider factors such as diagnosis, prognosis, functional impairment, any prescribed medication, chronic, deteriorating or unstable conditions, any accompanying test results, memory or judgement impairment, impaired vision, loss of consciousness and the date of the episode(s), the frequency of the episodes and compliance with prescribed treatment. In cases where the medical condition is reported as alcohol dependence or an alcohol withdrawal seizure, the driver’s history is checked to see if there are any alcohol-related driving infractions.
50Where the Registrar decides to suspend a driver’s license, the driver is sent a Notice of Suspension by mail. At the same time, the Registrar sends a letter to the driver requesting that additional information from a specialist, family physician familiar with the driver’s medical history, or a rehabilitation centre be submitted for reinstatement consideration. In cases of medical suspension under s. 47(1) of the HTA, drivers can appeal the Registrar’s decision to the LAT.
51Ms. Bishop testified with respect to the suspension of the applicant’s driver’s license for medical reasons on June 21, 2007, after the MTO received a report under s. 203 of the HTA indicating that the applicant suffers from the medical conditions of alcohol and drug dependence, which may make it dangerous for him to operate a motor vehicle. In accordance with the DIO policy guidelines and the National Medical Standards, and upon review of the applicant’s medical history and driving record, the Registrar wrote to the applicant to inform him that his driver’s license was suspended on medical grounds, and that a period of 12 months abstinence was required, supported by bio-chemical markers urine drug screen toxicology. He was also advised that earlier re-license could be considered upon favourable recommendation from an addiction specialist confirming the successful completion of a treatment program.
52Prior to the suspension on medical grounds in 2007, the applicant’s driver’s license had previously been suspended for an alcohol related driving conviction, and for failure to file a medical report.
53Ms. Bishop testified that Dr. Lefebvre, with the Centre for Addiction and Mental Health, submitted medical reports on behalf of the applicant, dated July 26, 2007 and October 1, 2007, indicating that the applicant had been abstinent for three and six months, respectively. The Registrar considered the reports and determined, on the basis of the information provided, the driver’s medical history and driving record, and the DIO policy guidelines and National Medical Standards, that a sustained 12 month period of abstinence was required. This finding was supported by the recommendation of MAC (dated October 22, 2007), and confirmed by LAT on November 14, 2007.
54The applicant’s license was reinstated on the basis of a medical report (dated April 17, 2008), from Dr. Lefebvre indicating that the applicant had been abstinent from alcohol and drugs for 12 months, and was engaged in recovery with multiple community and medical supports.
55Because the applicant’s driver’s license had been suspended or invalid for a period greater than three years (due to the medical suspension at issue in this case, previous suspensions for convictions for alcohol related driving offences, and administrative suspensions for failure to file a medical report), he was required to complete a number of steps in order to qualify for a class G license. The applicant attended at a Ministry licensing office on June 8, 2008 and paid the license renewal fees, completed the written driver’s test, and obtained a class G1 driver’s license. On September 2, 2008, the applicant completed the G1 road test, and obtained a class G2 license. On September 9, 2008, the applicant completed the G2 road test, and obtained a class G license.
56Ms. Bishop gave evidence with respect to the applicant’s driver’s license history. This history includes three collisions involving alcohol, and one conviction for impaired driving. Subsequent to the reinstatement of his license in 2008, the applicant has been in a collision (November 10, 2008), with the collision report indicating inattentive driving, and on September 1, 2009, was convicted of improper driving on a divided highway. On April 6, 2010, the applicant was convicted of speeding (driving 60kms per hour, in a 50km per hour zone).
SUBMISSIONS
57The applicant submitted that the practice of automatically suspending a driver’s license upon receipt of a physician reporting form is discriminatory and, further, that the general refusal to reinstate a license until a driver has established 12 months of abstinence is also discriminatory.
58The respondent submitted that contrary to the applicant’s assertion, the licenses of persons with substance dependence are not automatically suspended, nor are all suspended drivers required to establish 12 months of abstinence. Rather, s. 14(b) requires an individual assessment to determine in each case whether a driver with substance dependence poses a significant risk. Distinctions made on the basis of the degree of risk posed to public safety are not distinctions based on disabilities and are not prohibited by the Code.
ANALYSIS
59The issues raised in this Application are:
a. What is the standard of discrimination to be applied in this case?
b. Whether s. 14(b), or its implementation in conjunction with the Ministry’s policy guidelines, deny the applicant equal treatment with respect to a service on the basis of a prohibited ground under s. 1 of the Code?
c. Whether the Ministry’s policy of generally requiring twelve months of abstinence prior to reinstatement is discriminatory?
d. If either regulation or policy or both are prima facie discriminatory, are they justified as bona fide health requirements under the Code?
What is the standard of discrimination to be applied in this case?
60Section 1 of the Code provides:
Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, age, marital status, family status or disability.
61The Ontario Divisional Court and the Ontario Court of Appeal have held that the discrimination analysis developed under s. 15(1) of the Canadian Charter of Rights and Freedoms, The Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”) applies to Code challenges to legislation and government policy. As the Supreme Court has recognized, the Code and the Charter share a common objective and should be interpreted in a congruent manner. Accordingly, the legal test for discrimination to be applied in this case is the one articulated by the Supreme Court in R. v. Kapp. 2008 SCC 41, [2008] 2 S.C.R. 483 (“Kapp”) at para. 17.
(…) I see little reason for adopting a different approach when the claim is brought under human rights legislation which, while it may have a different legal orientation, is aimed at the same general wrong as s. 15(1) of the Charter.
As well the Court of Appeal states in Ontario Human Rights Commission v. Ontario, 1994 CanLII 1590 (ON CA), [1994] O.J. No. 1732 (C.A.) at para. 18:
… [t]he jurisprudence pertaining to the interpretation of s.15 of the Charter can be relied on in interpreting Human Rights Code guarantees: see Dickason v. University of Alberta, 1992 CanLII 30 (SCC), [1992] 2 S.C.R. 1103 (…)This is not incongruous or surprising as the interpretation of the Charter has been informed by the jurisprudence relating to human rights codes.
62See in addition: Ontario Secondary School Teachers’ Federation v. Upper Canada District School Board, 2005 CanLII 34365 (ON SCDC), [2005] O.J. No. 4057 (Div. Ct.) at para. 28; Ontario (Attorney General) v. Ontario (Human Rights Commission), 2007 CanLII 56481 (ON SCDC), [2007] O.J. No. 4978 (Div. Ct.) at paras. 46-47; British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union (B.C.G.S.E.U.) (Meiorin Grievance), 1999 CanLII 652 (SCC), [1999] 3 S.C.R 3 at para. 48; and Ontario (Director, Disability Support Program) v. Tranchemontagne, 2009 CanLII 18295 (ON SCDC), [2009] O.J. No. 1613 (Ont. CA) at para. 74.
63In Kapp, the Supreme Court articulated a two-part test for discrimination under s. 15(1) of the Charter, refining the test that had earlier been articulated in Law v. Canada (Minister of Employment and Immigration),1999 CanLII 675 (SCC), [1999] 1 S.C.R., 497 at para 88 (“Law”):
(A) Does the law create a distinction based on an enumerated or analogous ground?
(B) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?
This is the test to be applied by the Tribunal in this Application. The Supreme Court has established that the right to be free of discrimination does not require identical treatment for everyone. Not every distinction in treatment is “discriminatory”. In order to constitute discrimination in the substantive sense, the impugned differential treatment, whether direct or indirect, results in arbitrariness or creates a disadvantage which limits opportunities, perpetuates prejudice and stereotyping, or fails to recognize pre-existing disadvantage. Kapp at paras. 17-18 and 27-28.
64Similarly, in McGill University Health Centre (Montreal General Hospital) v. Syndicat des employés de l’Hôpital général de Montréal, 2007 SCC 4, [2007] 1 S.C.R. 161 (“McGill University Health Centre”) at paras. 45-50, Abella J. held that, under Quebec’s human rights statute,
(…) a workplace practice, standard, or requirement cannot disadvantage an individual by attributing stereotypical or arbitrary characteristics. The goal of preventing discriminatory barriers is inclusion. It is achieved by preventing the exclusion of individuals from opportunities and amenities that are based not on their actual abilities, but on attributed ones. The essence of discrimination is in the arbitrariness of its negative impact, that is, the arbitrariness of the barriers imposed, whether intentionally or unwittingly.
What flows from this is that there is a difference between discrimination and a distinction. Not every distinction is discriminatory. It is not enough to impugn an employer’s conduct on the basis that what was done had a negative impact on an individual in a protected group. Such membership alone does not, without more, guarantee access to a human rights remedy. It is the link between that group membership and the arbitrariness of the disadvantaging criterion or conduct, either on its face or in its impact that triggers the possibility of a remedy. And it is the claimant who bears this threshold burden.
If such a link is made, a prima facie case of discrimination has been shown. It is at this stage that the Meiorin test is engaged and the onus shifts to the employer to justify the prima facie discriminatory conduct. If the conduct is justified, there is no discrimination. [emphasis added]
See also: Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R. 362 at para. 71
65In Law, the Supreme Court identified four contextual factors that assist in determining whether a distinction is substantively discriminatory: (1) pre-existing disadvantage, if any, of the claimant group; (2) degree of correspondence between the differential treatment and the claimant group’s reality; (3) whether the law or program has an ameliorative purpose or effect; and (4) the nature of the interest affected. Law, at para 88.
66In Kapp, the Supreme Court confirmed that these factors “are based on and relate to the identification…of perpetuation of disadvantage and stereotyping as the primary indicators of discrimination.” Kapp, at paras 23-24.
67I conclude that the applicant bears the onus of establishing that the licence suspension and reinstatement process applied in his case was discriminatory in light of the four contextual factors set out in Law, or as modified by Kapp, that the process perpetuated disadvantage and stereotyping.
Whether section 14(b), or its implementation in conjunction with the Ministry’s policy guidelines, denies the applicant equal treatment with respect to a service on the basis of a prohibited ground under s. 1 of the Code?
68The first step in establishing a claim of discrimination requires the applicant to show that s. 14(b), or its implementation in conjunction with the Ministry’s policy guidelines, treats him differently on the basis of his disability.
69There is no dispute that the applicant suffers from substance dependence and that this dependence constitutes a “disability” within the meaning of the Code. See Entrop v. Imperial Oil Ltd., 2000 CanLII 16800 (ON CA), [2000] O.J. No. 2689 (C.A.) at para. 89.
70However, the applicant’s substance dependence is not the basis for the distinction in this case. The basis for the distinction in s. 14(b) is not whether an individual has the disability of substance dependence, but rather whether the extent of that dependence is “likely to significantly interfere with his or her ability to drive a motor vehicle”. A distinction based on the degree of risk posed to public safety is not based on a disability and is not a prohibited ground.
71A suspension is only triggered upon the submission of a physician reporting form which reports both that the driver has alcohol or drug dependence and may be at risk. As such, the impugned differential treatment (suspension review) is set in motion not by the disability, but the degree of risk associated with the individual’s disability and driving history, which in the applicant’s case included collisions and convictions related and unrelated to his disability.
72The applicant challenged the adequacy of the emergency room’s physician report of April 2007. The applicant noted that he only saw this physician for a brief period of time and that the basis for the report was his single visit.
73I am sympathetic to the applicant’s submission. At this time, the applicant’s treating physician did not appear to believe that the applicant posed a driving risk. It may be that the emergency room physician’s decision to file a physician report was too hasty. However, the actions of the emergency room physician are not under scrutiny here. Was the respondent’s decision to suspend the applicant’s license upon receipt of this physician reporting form discriminatory?
74Based on the evidence before me, I accept that, upon receipt of the physician reporting form reporting that the applicant may pose a risk, and upon review of the applicant’s actual driving history, the Registrar concluded that the applicant posed a danger, resulting in an immediate suspension of his driver’s licence.
75I conclude that the applicant was not subject to discriminatory treatment on the basis of his alcohol dependence because the Registrar acted upon evidence that the applicant’s individual situation posed a significant driving risk. This type of individual assessment does not “create a disadvantage by perpetuating prejudice or stereotyping” or “by attributing stereotypical or arbitrary characteristics”. See Kapp, at paras. 17-18 and 27-28 and McGill University Health Centre, at paras. 47-49.
76It is not contested that persons suffering from substance dependence have historically experienced stereotype and prejudice. However, s. 14(b) and the Ministry’s policy guidelines do not perpetuate any stereotype, but rather correspond to what the medical evidence that shows the significant driving risks posed by persons with substance dependence.
77In limiting its application to cases in which a driver’s substance dependence is “likely to significantly interfere with his or her ability to drive safely”, s. 14(b) recognizes that not all substance dependent persons will pose a significant risk to driving safety.
78The contextual factors identified in Law thus do not support a finding of substantive discrimination in this case. See Law, at para 88, Kapp at paras 23-24, and Grismer v. Squamish First Nation, 2006 FC 1398 at para 1.
Whether the Ministry’s policy of requiring twelve months of abstinence prior to reinstatement is discriminatory
79Although the applicant submitted two medical notes from his treating physician after three and six months of abstinence, the Registrar refused to reinstate the applicant’s licence before he had established twelve months of abstinence.
[80] The evidence established that the Registrar considered each medical report seeking early reinstatement. With respect to the October 2007 request, the Medical Advisory Committee reviewed the applicant's medical file and driving record. The Committee recommended against early reinstatement in light of the three alcohol related driving incidents and the long history of addiction.
81The Ministry’s policy guideline of twelve months abstinence as a general marker for reinstatement is based on medical consensus and by experts in addiction medicine and driving safety. The policy guidelines are not arbitrary or stereotypic, but, rather, closely correspond to the legislative purpose – identifying those persons with substance dependence who pose a significant risk to road safety. Further, despite this general guideline, the evidence shows that the respondent applied an individual assessment to the applicant.
82Again, the contextual factors identified in Law thus do not support a finding of substantive discrimination in this case. See Law at para 88 and Kapp at paras 23-24.
83The Application is dismissed.
Dated at Toronto, this 16^th^ day of February, 2011.
_____________”signed by”________________________
Kaye Joachim
Member