C.B. v. Ontario (Transportation), 2013 HRTO 1388

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

C.B.

Applicant

-and-

Her Majesty the Queen in Right of Ontario as represented

by the Minister of Transportation

Respondent

INTERIM DECISION

Adjudicator: Brian Cook

Date: August 13, 2013

Citation: 2013 HRTO 1388

Indexed as: C.B. v. Ontario (Transportation)

APPEARANCES

C.B., Applicant

Bay Ryley, Counsel

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

David Milner, Counsel

Introduction

1The Ministry of Transportation suspended the applicant's driver’s license when it learned from an emergency room physician that the applicant had a medical condition which might impair her ability to safely operate a motor vehicle. The suspension was in effect from 2007 to 2013.

2The Application was filed on November 10, 2011, under section 34 of the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”). The applicant alleges that the respondent discriminated against her on the basis of disability in regard to the initial suspension and in particular with respect to her subsequent efforts to have the suspension lifted.

3This Interim Decision addresses whether the Tribunal has jurisdiction to hear the Application in light of the provisions of the Highway Traffic Act, R.S.O. 1990, c. H.8, as amended, and Regulations made pursuant to that Act. In particular, section 19 of O. Reg. 340/94, as amended (“the Regulation”), states that provisions regarding the suspension of a driver’s license for medical reasons apply despite the Code.

4For the reasons that follow, I have determined that section 19 of the Regulation does not remove the Tribunal’s jurisdiction to deal with this Application, at least in part, because the provisions of section 19 pertaining to disability came into effect only in 2011, and the Application relates primarily to events prior to that time.

5The applicant has asked that published decisions of the Tribunal be anonymized. That request is not opposed by the respondent but was not canvassed during the telephone conference call hearing. The request is granted with respect to this Interim Decision but may be re-visited in the future.

Background

6The applicant states that in late 2006 she was experiencing symptoms of depression. She attended the St. Joseph’s Health Centre emergency department on December 5, 2006, with symptoms of depression and suicidal ideation. She was assessed by an emergency room physician. The applicant was not admitted to the hospital. After the assessment, the emergency room physician contacted the Ministry of Transportation (“MTO”) and recommended that the applicant's driver’s license be suspended because the applicant was suffering from a medical condition that would likely result in serious bodily harm to herself. He did not indicate that she was likely to cause serious bodily harm to another person.

7According to the Application, the emergency room physician did not talk to the applicant about driving and did not tell her that he was going to contact the MTO.

8Following the emergency room assessment, the applicant was assessed by a psychiatrist at St. Joseph’s Health Centre. A follow-up appointment was scheduled and the applicant was sent home and not admitted to the hospital as a patient.

9The emergency room physician’s report to MTO was not processed until February 2007, about two months after the report was made. The applicant’s driver’s license was suspended as of February 15, 2007.

10The letter the MTO sent to the applicant explained the process for having the suspension lifted.

11The applicant believes that she tried to provide the Ministry with the information it required. Her experience was that whatever she provided did not seem to be sufficient even though she also provided letters from her own treating physicians that stated that she did not have a medical condition that created any driving risk.

12The Application alleges a series of events from 2007 to March 2011 all relating to her unsuccessful attempts to provide the respondent Ministry with the information required to lift the suspension of her driver’s license. As noted, the Application was filed on November 10, 2011.

13The applicant alleges that the respondent created a “moving target” in regard to the scope of information that it required and that new grounds for continuing the suspension were introduced during the process. She alleges that this was discriminatory because the respondent appeared to presume that she had a disability and a history of disability that did not correspond to her actual situation and history.

14The suspension was finally lifted in 2013.

15In its Response, the respondent disagrees that the applicant was discriminated against on the basis of disability, although it does concede that there may have been some “customer relations” issues in the way the applicant’s case was processed over the years.

16The respondent asserts that the Tribunal does not have jurisdiction to consider the applicant’s allegation of discrimination because of the operation of the Highway Traffic Act and the Regulation.

17In a Case Assessment Direction dated February 7, 2013, the Tribunal directed that a preliminary hearing by telephone conference call would be held to deal with this jurisdictional issue. The telephone conference call hearing was held on June 10, 2013.

The jurisdictional issue for the period prior to January 1, 2011

18The Regulation establishes qualifications and standards to be met by drivers. It authorizes the Minister to suspend the license of drivers who do not meet these standards and authorizes the Minister to require drivers to undergo testing and provide information including medical evidence that may be required to determine if the driver can drive safely.

19Section 14 of the Regulation concerns disability and the requirements that can be imposed on a driver who has a disability that may impact the driver’s ability to drive safely. The relevant parts of the section are as follows:

14. (1) An applicant for or a holder of a driver’s licence must not,

(a) suffer from any mental, emotional, nervous or physical condition or 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.

(2) In determining whether an applicant for or a holder of a driver’s licence of any class meets the qualifications described in subsection (1), the Minister,

(b) may require the applicant or holder to provide evidence satisfactory to the Minister that he or she is able to drive a motor vehicle of the applicable class safely, including,

(i) any reports of examinations under section 15, and

(ii) any additional medical information

20Section 15 of the Regulation provides in part:

15. (1) An examination of an applicant for or a holder of any class of driver’s licence, including a driver’s licence with or without any endorsement, condition or waiver, or an examination in relation to any endorsement, condition or waiver may include,

(e) medical and physical examinations, tests and procedures to determine the person’s fitness to drive or to determine whether the person meets the qualifications prescribed by section 14…

21Section 19 of the Regulation provides that the examinations and qualifications required pursuant to various sections of the Regulation, including section 14, “apply despite the Human Rights Code”.

22As the applicant notes, section 19 of the Regulation was amended effective January 1, 2011. Prior to that date, the section read as follows:

19. (1) The examinations and qualifications required of an applicant for or a holder of a driver’s licence by section 16, clauses 17 (1) (j) and (k), subsections 17 (4) and 18 (1), clause 18 (2) (a) and sections 21.1 and 21.2 apply despite the Human Rights Code.

(2) Subsection 17 (2) applies despite the Human Rights Code.

23Effective January 1, 2011, section 19 read as follows:

19. (1) The examinations and qualifications required of an applicant for or a holder of a driver’s licence by sections 14, 16 and 17, subsection 18 (1), clause 18 (2) (a), subsection 18 (3) and sections 21.1 and 21.2 apply despite the Human Rights Code.

24In regard to this Application, the importance of this amendment was the addition of section 14 in the post-January 1, 2011 version of section 19 of the Regulation. Prior to January 1, 2011, the decisions of the Ministry under sections pertaining to age, vision and hearing were exempt from the operation of the Code but decisions under section 14 of the Regulation, dealing more generally with disability, were not exempt.

25The applicant notes that section 22 of the Legislation Act, 2006, S.O. 2006, c. 21, Sched. F, provides that a regulation cannot be given retroactive effect:

22. (1) A regulation that is not filed has no effect.

(2) Unless otherwise provided in a regulation or in the Act under which the regulation is made, a regulation comes into force on the day on which it is filed.

(3) Nothing in this section authorizes the making of a regulation that is effective with respect to a period before its filing.

26The respondent suggested that the Tribunal must find jurisdiction based on the legislation and regulations in effect at the time the Application is filed. The respondent suggests that since the current version of section 19 was in effect at the time the Application was filed, the Tribunal has no jurisdiction to deal even with the allegations about events that took place before section 19 was amended. The respondent did not provide any case law or statutory authority in support of this position.

Conclusions regarding the period before January 1, 2011

27The applicant’s allegations include allegations about a series of events in the period from 2007 to January 1, 2011. The Application also includes allegations about the period after January 1, 2011.

28The applicant alleges that the manner and extent of the exercise of the respondent’s discretion under sections 14 and 15 of the Regulation was discriminatory.

29The respondent argues, in effect, that while the amendment to section 19 of the Regulation may not have retroactive effect, it may nonetheless apply because the important issue is the wording of the Regulation at the time the Application was filed.

30Since January 1, 2011, the Code does not apply to the exercise of the respondent’s discretion under sections 14 of the Regulation. Before January 1, 2011, the Regulation did not mention the applicability of the Code with respect to the respondent’s discretion under section 14, and so presumably the Code did apply.

31It appears to me that to hold that the Tribunal does not have jurisdiction with respect to the 2007 to 2010 period because of an amendment to the Regulation that took effect on January 1, 2011 would be to retroactively permit the Regulation to apply in these circumstances. Such a finding would be contrary to the clear wording of section 22(3) of the Legislation Act.

32I note that in Mortillaro v. Ontario (Transportation), 2011 HRTO 310, the Tribunal exercised its jurisdiction to decide a challenge to section 14 of the Regulation in respect of events prior to January 1, 2011.

33I therefore conclude that the Tribunal has jurisdiction to deal with the allegations of discrimination in the period from 2007 to December 31, 2010. I note that the allegations in respect of that period include allegations of events that occurred within one year of November 10, 2011, when the Application was filed. It is apparent that the earlier events are a “series of events” within the meaning of section 34 of the Code.

34It therefore follows that section 19 of the Regulation does not remove the operation of the Code in respect to the applicant’s allegations of discrimination because of disability for any period prior to January 1, 2011.

The period after January 1, 2011

35The applicant concedes that for the period after January 1, 2011, the Code does not apply to the Ministry’s decisions under section 14 of the Regulation. However, the applicant submits that the Tribunal nevertheless has jurisdiction to consider the applicant’s allegations about events after January 1, 2011.

36The applicant argues that the section 19 of the Regulation is not intended to give the Ministry blanket immunity in regard to alleged discriminatory actions or decisions. The applicant puts this argument in the following terms: “For example, section 19 surely does not mean that Ministry staff could harass someone on the basis of disability or race or any other ground under the Code with impunity.”

37The Tribunal has considered a number of applications which challenged various provisions of the Regulation on the basis that provisions concerning suspension of a license were discriminatory: Catherine v. Ontario (Transportation), 2009 HRTO 140; Gordon v. Ontario (Transportation), 2010 HRTO 1025; Daoust v. Ontario (Transportation), 2010 HRTO 1725; Morrison v. Ontario (Transportation), 2012 HRTO 2247; MacLennan v. Ontario (Transportation), 2013 HRTO 714.

38Those cases concerned alleged discrimination on the basis of age and vision impairment. Even before it was amended effective January 1, 2011, section 19 of the Regulation provided that the Code did not apply to the various sections of the Regulation concerning age and vision impairment (and also hearing impairment).

39In those cases, the Tribunal found that it did not have jurisdiction to hear the applications because of section 19 of the Regulation.

40The applicant submits that the present case is different than these earlier cases. In those cases, the argument was that the various provisions of the Regulation that provided for differential treatment of drivers based on age and vision were themselves discriminatory. The Tribunal found that the Regulation permitted the differential treatment and that the Code does not apply because of section 19 of the Regulation.

41In this case, the applicant agrees that the Regulation permits differential treatment on the basis of disability. She agrees that in certain circumstances, it is appropriate for the Ministry to suspend the driver’s license of a person with medical conditions, including mental health issues, because those medical conditions may mean that the person cannot drive safely. The applicant is instead alleging that the decision-making process in her particular case was discriminatory because there were unjustified assumptions about her disability and presumptions that she had a disability that she states she did not in fact have.

42The applicant thus does not dispute that once the Ministry has been informed that a driver may pose a safe driving risk, the Ministry has the discretionary power to require a driver to produce medical records and information to satisfy the Ministry that the driver does not pose a driving risk. In the Application, she seeks to distinguish the Ministry’s discretionary authority to require information from the way that discretion was exercised in her own case. She alleges that the way the discretion was exercised in her case was discriminatory because it was based on assumptions about her medical condition or presumptions that she had a disability that she did not in fact have.

43I agree with the applicant's submission that the section 19 of the Regulation does not give the Ministry blanket immunity from discriminatory treatment of drivers based on all Code-protected grounds. As the applicant’s counsel suggests, section 19 would not, for example, mean that a Ministry employee could use the discretionary powers available to the Ministry to discriminate against a person because of race.

44Disability is also, of course, a Code-protected ground. However, disability is also expressly identified in sections 14 of the Regulation as a reason why a person’s driver’s licence may be suspended and why the Ministry may require the driver to provide detailed, relevant medical information. And, as amended effective January 1, 2011, section 19 of the Regulation expressly states that sections 14 of the Regulation apply despite the Code.

45As the respondent notes, the fact that section 19 of the Regulation states that the Code does not apply to the exercise of the Ministry’s discretion under sections 14 of the Regulation does not mean that a driver has no recourse if she believes that the Ministry is dealing with her in an unfair manner as there is an appeal to the Licence Appeals Tribunal.

46While section 19 of the Code as amended effective January 1, 2011 does not allow the Ministry to treat drivers differently on the basis of all of the grounds covered by the Code, it does permit differential treatment of drivers on the grounds of disability. The permitted differential treatment because of disability includes the requirement that the driver provide the sort of detailed medical information that was required in this case.

47I therefore conclude that after January 1, 2011, the Code does not apply to the discretionary decisions of the respondent or its requirement that the applicant provide information pursuant to section 14 of the Driver’s Licence Regulation. I therefore find that the Tribunal does not have jurisdiction to deal with the applicant’s allegations about events that occurred after January 1, 2011.

ORDER

48Section 19 of the Driver’s Licence Regulation does not operate to remove the Tribunal’s jurisdiction to deal with the Application with respect to allegations prior to January 1, 2011.

49Section 19 of the Driver’s Licence Regulation does operate to remove the Tribunal’s jurisdiction to deal with the Application with respect to allegations after January 1, 2011.

50The Tribunal will schedule a hearing to hear the merits of the Application and the allegations about events prior to January 1, 2011.