HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

George Morrison

Applicant

-and-

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

Respondent

INTERIM DECISION

Adjudicator: Sheri D. Price

Date: April 24, 2012

Citation: 2012 HRTO 819

Indexed as: Morrison v. Ontario (Transportation)

[1] This Application, filed under s.34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges that the respondent discriminated against the applicant on the basis of age in respect of services. Specifically, the applicant alleges the respondent discriminated against him on the basis of his age by renewing his driver’s licence for a period of only one year in late December 2010, approximately seven weeks before the applicant’s 64^th birthday.

[2] In its Response to the Application, the respondent asserts that the Tribunal does not have jurisdiction to deal with the Application.

[3] The respondent acknowledges that the driver’s licence testing requirements for commercial drivers, such as the applicant, vary with the driver’s age. In particular, the respondent points out that s.16 of Regulation 340/94 under the Highway Traffic Act, R.S.O. 1990, c. H.8, requires drivers aged 65 and over who hold certain classes of driver’s licence to complete certain tests with greater frequency than younger drivers.

[4] However, the respondent submits that the Tribunal has no jurisdiction to hear the Application based on a combined reading of s. 19 of Regulation 340/94 and s.47(2) of the Code.

[5] Section 47(2) of the Code provides that where an Act or regulation that contravenes Part I of the Code states that it applies despite the Code, then the Code does not apply:

47(2) Where a provision in an Act or regulation purports to require or authorize conduct that is a contravention of Part I, this Act applies and prevails unless the Act or regulation specifically provides that it is to apply despite this Act.

[6] Section 19 of Regulation 340/94 under the Highway Traffic Act states:

The examinations and qualifications required of an applicant for or a holder of a driver’s licence by sectio[n] … 16 … apply despite the Human Rights Code.

[7] Based on the clear wording of s.47(2) of the Code and s.19 of Regulation 340/94 under the Highway Traffic Act, I agree with the respondent that the Tribunal has no jurisdiction to determine whether any examinations or qualifications required of drivers by s.16 of the Highway Traffic Act contravene the Code: [Catherine v Ontario (Transportation), 2009 HRTO 140](https://www.minicounsel.ca/hrto/2009/140).

[8] Having said that, based on the information that has been provided by the applicant and the respondent to date, it is not clear to me whether the examinations and/or qualifications of which the applicant complains in his Application were required by s.16 of Regulation 340/94. Section 16 of Regulation 340/94 provides, among other things:

16. The Minister may require that,

(c.1) any holder of a Class A, B, C, E or F driver’s licence who has reached the age of 46 but has not yet reached the age of 65 complete successfully the applicable examinations prescribed in clause 15 (1) (a) every five years and meet the qualifications prescribed in sections 14 and 17 every three years;

(d) any holder of a Class A, B, C, E or F driver’s licence who has reached the age of 65 complete successfully every year the applicable examinations prescribed in section 15 and meet the qualifications prescribed in sections 14 and 17;

(d.2) any holder of a driver’s licence with an air brake endorsement who is under 65 complete successfully every five years the examination prescribed in clause 15 (1) (a); and

(e) any holder of a driver’s licence with an air brake endorsement who has reached the age of 65 complete successfully every year the applicable examinations prescribed in section 15 and meet the qualifications prescribed in sections 14 and 17.

[9] The Tribunal requires further information in order to determine whether it lacks jurisdiction to deal with the Application pursuant to s.47(2) of the Code and s.19 of Regulation 390/64.

[10] To this end, the Tribunal directs the applicant to provide detailed answers to the following questions surrounding the renewal of his driver’s licence in and/or after December 2010:

a. What class or classes of driver’s licence did the applicant seek to renew and have renewed in or around December 2010?

b. For what specific period of time did the respondent renew the applicant’s driver’s licence in or around December 2010 (i.e. from which date to which date)? In particular, was the applicant’s driver’s licence renewed until his 65^th birthday?

c. Which specific examinations was the applicant subject to in and after December 2010 in order to renew and/or maintain his driver’s licence? On what dates was the applicant subject to such examinations?

[11] The applicant is directed to deliver this information to the respondent and to file it with the Tribunal within 14 days of the date of this Interim Decision. The applicant is also directed to deliver to the respondent and file with the Tribunal copies of any and all documents in his possession relevant to his driver’s licence renewal in or around December 2010 and/or the examinations and/or qualifications that he was subject to in and after December 2010 that he claims were discriminatory on the basis of age.

[12] In addition, within 14 days of the date of this Interim Decision, the applicant is directed to deliver to the respondent and file with the Tribunal his written submissions with respect to whether the things the respondent required of him in order to renew and/or maintain his driver’s licence were required by s.16 of Regulation 390/64 of the Highway Traffic Act. To be clear, the question to be addressed is not whether the applicant agrees with the requirements in s.16 of the Regulation. The question is whether what was required of the applicant when he renewed his driver’s licence in or around December 2010 was required by s.16 of the Regulation.

[13] Similarly, within 28 days of the date of this Interim Decision, the respondent is directed to provide its written submissions with respect to whether the things the respondent required of the applicant in order to renew and/or maintain his driver’s licence in or after December 2010 were required by s.16 of Regulation 390/64 of the Highway Traffic Act. I note that in its Response to the Application, the respondent submits that drivers “aged 65 and over” are subject to more frequent testing requirements pursuant to s.16 of the Regulation. In this case, however, the applicant was less than 65 years old when the respondent allegedly refused to renew his driver’s licence for more than a one-year period because of his age. In order to establish that this Application is outside of the Tribunal’s jurisdiction, the respondent must establish that the examinations or qualifications that were required of this particular applicant because of his age in or around December 2010 were required by s.16 of Regulation 390/64 (or another section that applies despite the provisions of the Code.)

[14] The Tribunal will determine its jurisdiction to deal with this matter once it receives the parties’ submissions on the above-noted issues.

[15] I am not seized.

Dated at Toronto, this 24^th day of April, 2012.

“signed by”

Sheri Price

Vice-chair