HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Douglas Walpole
Applicant
-and-
Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation
Respondent
DECISION
Adjudicator: Paul Aterman
Indexed as: Walpole v. Ontario (Transportation)
APPEARANCES
Douglas Walpole, Applicant
Simon Brown, Counsel
Her Majesty the Queen in Right of Ontario as represented by the Minister of Transportation, Respondent
David Milner and Padraic Ryan, Counsel
background
1This Decision explains why the Tribunal has no jurisdiction to consider this Application, which alleges discrimination with respect to services because of disability contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).
2The applicant used to hold licences to drive trucks (Class A) and motorcycles (Class M). In 2011 he underwent eye surgery. This had the effect of reducing his field of vision to 110 degrees.
3The regulation governing licencing of vehicles (O.Reg. 340/94 made pursuant to the Highway Traffic Act, R.S.O. 1990, c.H.8 and referred to as “the Regulation”) requires a field of vision of 150 degrees for a Class A licence and 120 degrees for a Class M licence. Because the applicant could not meet this standard his truck and motorcycle licences were revoked in 2011.
4In order to drive a car in Ontario a general licence (Class G) is required. Just as it does for motorcycles, the Regulation stipulates a field of vision of 120 degrees for a Class G licence.
5If an applicant for a Class G licence fails to meet the visual standards because of a disability, that applicant can apply for a waiver of the field of vision standard. However, if an applicant for a Class M licence fails to meet the visual standards because of a disability, that applicant cannot apply for a waiver.
6That is because the Regulation does not provide for the possibility of a waiver for a Class M licence.
7The applicant applied for and was granted a waiver that allows him to hold a Class G licence. Every year he has to reapply for the waiver and submit proof that he has sufficient visual acuity to be allowed to drive under the waiver program.
8The applicant applied to have his Class M licence reinstated in 2014. The respondent denied the application. He asked to be considered for a waiver so that he could again drive a motorcycle. The respondent denied this request in a letter dated May 26, 2014.
9The applicant filed this Application. He says that the failure of the respondent to provide a waiver program for Class M licences is discriminatory as it contravenes the Code and the equality provisions of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11, “the Charter”). The applicant makes a secondary argument that, quite apart from the unavailability of a waiver program for Class M applicants, the respondent failed to interpret the Regulation correctly and, had it done so, could have tested the applicant to see if he is fit to hold a Class M licence.
10The respondent seeks dismissal of the Application on the grounds of delay and that the Tribunal lacks jurisdiction. A preliminary hearing was held on January 28, 2015, by teleconference, where counsel for the parties made submissions with respect to the respondent’s request.
11I assume without deciding that the applicant has brought this Application in time, and thus this Decision deals only with the jurisdictional issue.
relevant legislative provisions
12Discrimination in the provision of services is prohibited by the Code in s.1. The Code prevails over any other Act or regulation that is inconsistent with it (s.47(1)). However, the Legislature can exempt statutes and regulations from the effect of this rule. The Code says:
s.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.
13The regulation governing vehicle licencing contains such an exemption, as is discussed below.
14The Regulation sets out the visual standards for holders of motorcycle licences:
s.18(1) An applicant for or a holder of a Class M, M1 or M2 driver’s licence must have,
(a) a visual acuity as measured by Snellen Rating that is not poorer than 20/50, with both eyes open and examined together with or without the aid of corrective lenses; and
(b) a horizontal visual field of at least 120 continuous degrees along the horizontal meridian and at least 15 continuous degrees above and below fixation, with both eyes open and examined together.
15The visual standards for holders of general (Class G) licences are set out in s.18(2) of the Regulation and are identical to the standards for Class M holders of motorcycle licences.
16Despite the fact that the standards for both types of licences are identical, the Regulation only allows for a waiver with respect to Class G licences. The waiver provisions are as follows:
s. 21.2 (1) The Minister may waive the qualification set out in clause 18 (2) (b) for an applicant for or a holder of a Class G, G1 or G2 driver’s licence if,
(a) the applicant or holder provides evidence that he or she has successfully completed the tests, procedures and examinations that the Minister may require; and
(b) the applicant or holder,
(i) meets all of the other qualifications set out in this Regulation for the applicable class of driver’s licence,
(ii) has not been able to meet the qualification set out in clause 18 (2) (b) for a period of at least three months immediately before the application,
(iii) does not have a medical or visual condition or disability that, alone or combined with a reduced horizontal visual field, may significantly impair his or her ability to drive, including,
(A) a neurological deficit or disorder, including epilepsy,
(B) diabetes that requires insulin for control,
(C) hypotension, or
(D) an impairment resulting from dementia, stroke, brain tumour, brain surgery, head trauma or arthritis,
(iv) does not have accumulated more than six demerit points on his or her driving record,
(v) did not have his or her driver’s licence under suspension at any time within the preceding five years pursuant to section 53, subsection 128 (15) or section 130, 172, 200 or 216 of the Act or as a result of a conviction under the Criminal Code (Canada) for an offence committed by means of a motor vehicle or while driving or having the care, charge or control of a motor vehicle, and
(vi) has not, within the preceding five years and within the period of time he or she has been unable to meet the requirements of clause 18 (2) (b), been involved in a collision the circumstances of which also gave rise to a conviction for contravening or failing to comply with section 128, 136, 138, 140, 141, 147, 148, 154, 156, 158 or 172 or subsection 175 (11) of the Act.
(2) The Minister may revoke a waiver given under subsection (1) at any time if the holder no longer meets the requirements of subclause (1) (b) (i), (iii), (iv), (v) or (vi).
(3) If the applicant’s or holder’s horizontal visual field is so fragmented or incomplete that the size, shape, nature or relative position of the defects in it or along the horizontal meridian or above or below fixation may significantly impair his or her ability to drive, then the Minister shall not grant the waiver under this section.
17As I indicate above, the provisions with respect to the visual standards for both motorcycle and general licences, as well as the provisions with respect to the waiver of the standards for general licences are all placed beyond the reach of the Code. The exemptions are set out as follows:
s.19. 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.
18In addition to the specific provisions governing Class M and G licences set out above, the Regulation contains a general provision in s.25 which reads as follows:
s.25 The Minister may impose conditions on a driver’s licence appropriate to the holder’s driving ability in respect of the type of motor vehicle and the special mechanical control devices required on any motor vehicle that the holder may drive, or such other conditions as are appropriate to ensure that the holder drives the motor vehicle safely.
19Finally, the relevant provisions of the Charter are as follows:
s. 1. The Canadian Charter of Rights and Freedoms guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society.
s.15. (1) Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.
s.52. (1) The Constitution of Canada is the supreme law of Canada, and any law that is inconsistent with the provisions of the Constitution is, to the extent of the inconsistency, of no force or effect.
applicant’s arguments
20The applicant argues that if the basic visual standards for holders of Class M and Class G licences are identical, then it is discriminatory for there to be a waiver program for Class G applicants who do not meet the basic standards, but no equivalent program for Class M applicants who do not meet the same basic standards. He argues that the failure of the Regulation to provide for the possibility of a waiver means that the Regulation is discriminatory because it is underinclusive. He says it is underinclusive because no rational justification is provided for offering Class G applicants the possibility of a waiver but not doing the same for Class M applicants.
21The applicant argues that, notwithstanding the fact that s.19 of the Regulation puts scrutiny of these provisions beyond the reach of the Tribunal, the Tribunal should not dismiss his Application without first holding a hearing to determine whether there is a rational justification for having a waiver program for Class G applicants to apply to, but not for Class M applicants. As I understand his argument, he is saying that the Tribunal should look beyond the Regulation’s exemption to find that both the Code and the equality provisions of the Charter have been breached.
22The secondary argument which the applicant makes is that, despite the specific provisions outlined in ss.18(1), (2) and 21.2, the respondent has a general discretion to grant a licence. This is set out in s.25 of the Regulation, and s.25 is not referenced in s.19. The effect of this, says the applicant, is that the Tribunal has jurisdiction over this Application. The respondent could have assessed the applicant’s fitness for a Class M licence under s.25 even though he did not meet the basic visual requirements in s.18(1).
respondent’s argument
23The respondent says that if the applicant wants to advance his argument, he should do so before a court of general jurisdiction and not the Tribunal.
24It argues that, while the Tribunal can consider the constitutionality of statutory and regulatory provisions, it can only do so within the parameters of its jurisdiction. So, when a statutory provision purports to exempt certain parts of legislation from the operation of the Code, the Tribunal only has jurisdiction to look at whether the exempting provision is constitutional or not. It cannot reach beyond the exempting provision to examine the impugned parts of the legislation themselves. The authority for this is the Tribunal’s decision in MacLennan v. Ontario (Transportation), 2013 HRTO 714.
25Applied to the facts of this Application, the effect of this line of reasoning is that if s.19 is constitutionally sound, then the Tribunal cannot look into the question of whether it is discriminatory to differentiate between Class G and Class M applicants who do not meet the basic visual standards set out in the Regulation. A court of general jurisdiction may do so, but the Tribunal cannot.
analysis
The Applicant’s Primary Argument
26The reasoning in MacLennan applies here. In MacLennan the Tribunal spells out at para. 24 why s.19 of the Regulation does not operate in a discriminatory manner.
Section 19 of the regulation does not target one group or ground as occurred in Vriend, adding to prejudice in society on that ground. It excludes from the Code a variety of age and disability-based distinctions that relate to the granting of drivers’ licenses. These distinctions apply at different ages and to different disabilities. Section 19 applies to distinctions that affect a variety of different ages and persons with disabilities including medical conditions that may interfere with the ability to drive a vehicle (s. 14), hearing standards (s. 17), and visual acuity standards (s. 18). A contextual view of s. 19 in its regulatory context shows that it is a decision by the government that driver’s license distinctions will not be subject to the Code, and does not, in effect, exclude older adults or individuals on the basis of age. It does not send a message that an otherwise comprehensive statute does not give protection to a particular group.
27The fact that in MacLennan the applicant asserted that the discrimination was age-based, whereas here the applicant asserts it is based on disability makes no difference to the logic of the passage cited above. There is nothing else about the facts of this Application or the applicant’s argument that differentiate it from MacLennan.
28Here the applicant has not shown that s. 19 creates substantive discrimination. The reason for this is that it places restrictions on the availability of licences that affect people of differing ages and disabilities. As is noted in MacLennan at para. 27, s.19 simply has the effect of limiting the venue and the basis on which the applicant can raise his challenge to the Regulation. He has to do so before a court of general jurisdiction and rely on the Charter, not the Code. Neither of those limitations is, of itself, discriminatory.
29As s.19 is constitutional, and as it operates to bar the Tribunal from examining the applicant’s allegations, the applicant’s argument on this point cannot succeed.
The Applicant’s Secondary Argument
30The applicant’s argument that the respondent could have considered his request for a waiver by using its powers under s.25 of the Regulation must also be dismissed.
31The Regulation contains a specific and detailed provision in s.21.2 which outlines the scope of permissible waivers. The Regulation makes clear that waivers are only available for Class G licences. Waiver provisions once also existed for Class A and D licences, but those provisions were revoked in 2011. What remains from this revocation is a grandparent clause in s.21.1 of the Regulation which allows for a waiver for those licence classes in the case of persons who held such licences before the revocation.
32The applicant suggests that the general language of s.25 takes precedence over the specific and limited provisions in s.21.2, such that a waiver provision for Class M applicants can be read into the Regulation using s.25.
33I do not accept this interpretation because, as a general principle of statutory interpretation, the Legislature is presumed to enact laws that are internally coherent. When the Legislature uses some specific terms but does not include others that might logically accompany them, it is presumed to have excluded them. In this case, it provides a specific waiver program for Class G applicants only. In enumerating Class G licences only in s.21.2, it is presumed to have considered and decided not to have included other licence classes – such as Class M – in the waiver program.
34If the applicant’s interpretation is correct and the general provisions in s.25 trump the specific provisions in s.21.2 then there is no point in having s.21.2 in the Regulation at all, as it becomes redundant. This is an interpretation which runs contrary to the presumption of internal coherence in legislative drafting, and that is why I reject the applicant’s argument on this point. The applicant cannot rely on s.25 to bring this Application into the Tribunal’s jurisdiction.
order
35The Application is dismissed.
Dated at Toronto, this 6th day of February, 2015.
“Signed by”
Paul Aterman
Vice-chair```