Arnold Goodsell v. Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation, 2012 HRTO 2380

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Arnold Goodsell

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation

Respondent

DECISION

Adjudicator: Jo-Anne Pickel

Date: December 20, 2012

Citation: 2012 HRTO 2380

Indexed as: Goodsell v. Ontario (Transportation)

APPEARANCES

Arnold Goodsell, Applicant

Self-represented

Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation, Respondent

David Milner, Counsel

Introduction

1The applicant alleged that the respondent discriminated against him on the basis of his visual disability when it refused to renew the waiver for his Class D driver’s license.

2In its Response, the respondent raised two objections to the Tribunal’s jurisdiction over the Application. By Case Assessment Direction dated October 1, 2012, the Tribunal directed that the matter be scheduled for a summary hearing pursuant to Rule 19A of the Tribunal’s Rules of Procedure. The Tribunal directed that the parties address the two following issues: (1) whether the Application is untimely and (2) whether the Application is outside the Tribunal’s jurisdiction due to the combined operation of s. 47(2) of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), and s. 19(1) of Regulation 340/94 under the Highway Traffic Act, R.S.O. 1990, c. H.8 (“Drivers’ Licenses regulation”).

Factual Background

3By Application dated May 4, 2012, the applicant alleged that the respondent had discriminated against him by refusing to renew the waiver that permitted him to hold a Class D driver’s license. Among other things, a Class D license permits individuals to drive heavy vehicles such as transport trucks. Due to his visual disability, the applicant does not meet the visual acuity requirements for a Class D license which are set out in the Drivers’ Licenses regulation. However, after passing the necessary visual tests, the applicant was granted a Class D license in 2005 through a waiver program that was in place at that time.

4In 2006, the applicant moved to Alberta to find work. He exchanged his Ontario Class D license for a similar license obtained after passing the necessary tests required to obtain a waiver in Alberta. After maintaining a perfect driving record in Alberta, the applicant moved back to Ontario in 2008.

5While the applicant was living in Alberta, the Ontario government cancelled the waiver program for Class D licenses. Thereafter, all drivers who had been granted waivers under the program had their waivers grandparented pursuant to s. 21.1 of the Drivers’ Licenses regulation. Upon his return to Ontario, the applicant sought to renew the waiver he had held for his Class D license. The respondent refused to renew the waiver because the applicant had not continuously renewed the waiver while he was in Alberta. Section 21.1 of the Drivers’ Licenses regulation sets out a number of conditions that must be met before a grandparented waiver can be renewed. Although continuously holding a waiver in Ontario is not explicitly listed as a condition, the respondent takes the position that it only has the authority to renew the waivers of drivers who have continuously held a waiver that was granted before the waiver program was eliminated. The applicant did not meet this condition as he was required to exchange his Ontario license for an Alberta license when he relocated to that province.

6From the telephone logs filed with the Tribunal, it appears that the respondent initially communicated its position to the applicant by telephone in March of 2009. The applicant ended up exchanging his Alberta license for an Ontario Class G (non-commercial) driver’s license on August 20, 2010.

7Following this, the applicant sought advice from a lawyer at the Kingston Community Legal Clinic who sent a letter on his behalf dated June 6, 2011. By letter dated July 19, 2011, the respondent restated its position that the applicant was not eligible to renew the waiver he had held prior to moving to Alberta.

8There is no doubt that the applicant feels severely aggrieved by the respondent’s refusal to renew the waiver for his Class D license. He feels that his livelihood has been taken away. At the summary hearing he made clear that he believes his case raises mobility rights issues. In his view, he is being disadvantaged for the sole reason that he moved to Alberta and was required to exchange his Ontario license for an Alberta license while he was there.

Delay

9Section 34 of the Code provides that a person may file an application alleging that his or her rights under the Code have been infringed within one year of the incident (or last incident) to which the application relates. Under section 34(2) of the Code, a person may apply to the Tribunal more than one year after the incident to which his or her application relates (or the last incident in a series of incidents) only if the Tribunal is satisfied that the delay in filing the Application was incurred in good faith and that no substantial prejudice would result to any person affected by the delay if the Application were to proceed:

34 (1) If a person believes that any of his or her rights under Part I have been infringed, the person may apply to the Tribunal for an order under section 45.2,

(a) within one year after the incident to which the application relates; or

(b) if there was a series of incidents, within one year after the last incident in the series.

(2) A person may apply under subsection (1) after the expiry of the time limit under that subsection if the Tribunal is satisfied that the delay was incurred in good faith and no substantial prejudice will result to any person affected by the delay.

10As noted, the applicant filed his Application on May 4, 2012.

11In order to satisfy the Tribunal that a delay was incurred in good faith, an applicant must provide the Tribunal with a reasonable explanation as to why he or she did not pursue his or her rights under the Code in a timely manner. As stated in Miller v Prudential Real Estate, 2009 HRTO 1241, in order for an applicant to establish that a delay in filing an application was incurred in good faith, the applicant must show something more than simply an absence of bad faith; otherwise, there would be little meaning to the statutory limitation period. The mandatory one-year limitation period for filing an application is consistent with the policy objective, expressed elsewhere in the Code, that human rights claims should be dealt with expeditiously. Thus, the Code requires an individual to act with all due diligence, and file an application within one year when pursuing a human rights claim.

12The applicant submitted that the Application is timely on the basis that the respondent’s July 19, 2011 letter should be considered the last in the series of incidents giving rise to the Application. I do not agree. The allegedly discriminatory incident in this case is the date on which the Ministry made and/or communicated the decision not to renew the applicant’s waiver. This decision was made and communicated to the applicant in 2009. In its July 19, 2011 letter, the respondent simply restated its decision which it had already communicated to the applicant over two years earlier. The fact that a respondent maintains a decision it has already taken does not involve a new incident that allows for an extension of the one-year time period set out in s. 34 of the Code. See for example Garrie v. Janus Joan Inc., 2012 HRTO 1955 at para. 41. Therefore, the applicant’s Application was filed over two years after the one-year time period set out in s. 34(1).

13The applicant has failed to provide a reasonable explanation as to why he did not pursue his rights under the Code in a timely manner. At the summary hearing, the applicant stated that he contacted “human rights” to inquire about the matter in 2009 but was told that the circumstances did not raise a human rights issue. He is not certain which organization he contacted. However, it is clear that he did not follow up to confirm this information until two years later when he sought advice from the Kingston Community Legal Clinic. Although ignorance of one’s rights may in some circumstances amount to good faith, the applicant must establish that he or she had no reason to make inquiries about his or her rights. See Simmons v. Ontario (Transportation), 2010 HRTO 1884. In this case, the applicant did in fact make further inquiries about his rights but not until two years after his contact with an unspecified human rights organization. I understand that the applicant was dealing with many difficult issues during this time but, in the circumstances, I find that he has failed to provide a reasonable explanation for his delay which satisfies the requirements of s. 34(2).

14In sum, I find that the applicant has failed to satisfy the requirements of good faith set out in s. 34(2) of the Code. It is therefore not necessary for me to consider whether substantial prejudice would result from the delay.

15Given my findings on the issue of delay, I do not need to address the respondent’s submissions with respect to operation of s. 47(2) of the Code and s. 19(1) of the Drivers’ Licenses regulation.

16For the above reasons, the Application is dismissed.