May v. Ontario (Transportation), 2016 HRTO 951

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Brian May

Applicant

-and-

Her Majesty the Queen in right of Ontario as represented by the Ministry of Transportation

Respondent

DECISION

Adjudicator: Douglas Sanderson

Date: July 20, 2016

Citation: 2016 HRTO 951

Indexed as: May v. Ontario (Transportation)

APPEARANCES

Brain May, Applicant

Self-represented

Her Majesty the Queen in right of Ontario as represented by the Ministry of Transportation, Respondent

David Milner, Counsel

1This Application, filed under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), alleges discrimination with respect employment because of age.

Background

2The applicant is a commercial driver. On October 15, 2015, he received a speeding ticket while driving a tractor trailer. He was 67 years old when he received the ticket. On November 21, 2015, the applicant received a notice from the Ministry of Transportation that he was required to undergo a driver’s examination because he was between the ages of 65 and 79 and had accumulated more than two demerit points on his driving record. The applicant states that he was targeted because of his age.

3In its Response, the respondent acknowledged that the respondent received three demerit points when he was convicted of the speeding charge, which he did not contest. As a result, the applicant, who held a Class A driver’s licence, was required to successfully complete driving examinations because he was between 65 and 79 years of age. The respondent submitted that this requirement is set out in section 16(c) of Ontario Regulation 340/94 under the Highway Traffic Act. The respondent also submitted that the Tribunal’s jurisdiction is limited pursuant to section 47(2) of the Code, which provides that, where an Act or regulation provides that it is to apply despite the Code, the Tribunal does not have jurisdiction regarding the application of that Act or regulation. The respondent submitted that section 19 of Ontario Regulation 340/94 states that the requirements of section 16 apply notwithstanding the Code. Accordingly, the respondent submitted that the Tribunal does not have jurisdiction to deal with this Application.

4The applicant filed submissions in response to the respondent’s jurisdictional objection. The applicant submitted that the requirement of section 16(c) of Ontario Regulation 340/95 are blatantly discriminatory and violate his rights under the Code and under the Canadian Charter of Rights and Freedoms (the “Charter”).

Decision and Analysis

5Section 47 of the Code provides as follows:

47. (1) This Act binds the Crown and every agency of the Crown.

(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.

6Section 16(c) of Ontario Regulation 340/95 states as follows:

(c) any holder of a Class A, B, C, D, E or F driver’s licence who has reached the age of 65 but has not yet reached the age of 80 and is involved in an accident or accumulates more than two demerit points complete successfully the applicable examinations prescribed in section 15 and demonstrate that he or she continues to meet the qualifications prescribed in section 14;

7Section 19 of Ontario Regulation 340/95 states as follows:

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.

8The applicant argues that Regulation 340/95 discriminates against him because of age. The assertion is not really disputed. However section 19 of that regulation states that section 16 of applies despite the Code. Consequently, pursuant to section 47(2) of the Code, the Tribunal has no jurisdiction to address the issue of whether section 16(c) of Regulation 340/95 violates the Code. The Tribunal also does not have jurisdiction to determine whether section 16(c) of Regulation 340/95 violates the Charter. See MacLennan v. Ontario (Transportation), 2013 HRTO 714.

9The Application is dismissed.