COURT FILE NO.: 492/03

DATE: 20040423

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

o’driscoll, then and ferrier JJ.

B E T W E E N:

COLIN SHEPHERD

Applicant

• and -

ONTARIO MINISTRY OF TRANSPORTATION

Respondent

G.A. Bennett, for the Applicant

D. Milner, for the Respondent

HEARD at Toronto: April 6, 2004

O’DRISCOLL J.:

I. Nature of Proceedings

1The Applicant seeks:

(a) Judicial review of the decision of the Ministry of Transportation (Ministry), dated April 18, 2000, to suspend the Applicant’s Ontario Driver’s Licence pursuant to s. 32(12)(b)(ii) of the Highway Traffic Act, R.S.O. c. H. 8 (HTA) and the June 20, 2000 decision of the Ministry to deny the Applicant an opportunity to appeal the decision, and

(b) A declaration that the Applicant is entitled to the licence, and

(c) An order compelling the Ministry to issue to the Applicant an Ontario Driver’s Licence.

II. Relevant appeal provisions under the HTA

2Section 50(1) of the HTA provides an appeal to the Licence Appeal Tribunal (Tribunal) for any person who feels aggrieved by a decision of the Minister under s. 32(12)(b)(i) of the HTA or of the Registrar under s. 17 or s. 47 of the HTA. However, no appeal is provided for a matter under s. 32(12)(b)(ii) of the HTA – this case. Therefore, judicial review is sought by the Applicant.

3The HTA has no privative clause.

4In my view, “reasonableness” is the proper standard of review in this case: Griffin v. Ontario (Ministry of Transportation), [2004] O.J. No. 54.

III. Relevant Sections of the HTA

s. 31 The purpose of this Part is to protect the public by ensuring that,

(a) the privilege of driving on a highway is granted to, and retained by, only those persons who demonstrate that they are likely to drive safely;

s. 32 (12) An applicant for a driver’s licence or a person who holds a driver’s licence shall submit to the examinations that are authorized by the regulations relating to this section and required by the Minister at the times and places that the Minister may require and the Minister may, …

(b) in the case of a person who holds a driver’s licence, …

(ii) where the person fails to submit to or to successfully complete the examinations, suspend or cancel the driver’s licence held by the person.

s. 32 (14) The Lieutenant Governor in Council may make regulations relating to this section, …

(e) respecting practical and written driving examinations, and mental and physical, including ophthalmic and auditory, examinations for applications for and holders of drivers’ licences;

IV. Ontario Regulation 340/94 under HTA

12. (6) An applicant for a Class G, … driver’s licence must be at least 16 years old at the time of application.

13. An applicant for or a holder of a Class G, … driver’s licence must have,

(b) a horizontal visual field of at least 120 degrees as measured by confrontation tests.

V. Chronology of Applicant’s Historical and Medical Events and his Driver’s Licence

5The Applicant (D.O.B. May 7, 1976) is almost 28 years of age. Between September 1995 and June 1999, he attended Trent University as an undergraduate student. Between September 2000 and July 2002, he attended the Teachers’ College at the University of Exeter in England. In November 1992, he completed a driver’s training course with Young Drivers of Canada. On January 15, 1993, at 16 years of age, a driver’s licence was issued to the Applicant.

6In his affidavit, sworn August 6, 2003, the Applicant deposes:

6. On October 23, 1996, during an opththalmological examination, it was discovered that I had a benign brain tumor.

7. On December 13, 1996, I had surgery for removal of my brain tumor (resection of a left parieto-occipital meningioma). As a result, I was left with a right inferior quadrantanopia visual field loss, which extends, in the right eye, slightly above the horizontal meridian. Attached hereto, and marked as Exhibit “1” to my affidavit, is a copy of correspondence from Dr. Fearon to the Ministry of Transportation of Ontario, dated May 8, 1998.

8. On January 29, 1998, the Ministry of Transportation of Ontario wrote to me as follows: “We have recently reviewed your file. To determine whether you can safely operate a Class ‘G’ vehicle, we require an ophthalmologist’s or optometrist’s assessment regarding your horizontal visual field.”

9. On July 16, 1999, I underwent a second surgical operation to remove a benign brain tumor (removal of a meningioma). As a result, I suffered some loss of peripheral vision. The surgery, however, did not completely remove the whole of the benign tumour. This surgery is referred to in a medical report from Dr. Fearon, although this medical report mistakenly refers to my earlier surgery as having occurred in December 1997, when it actually was performed in December 1996. Attached hereto, and marked as Exhibit “6” to my affidavit, is a copy of correspondence from Dr. Fearon to the Ministry of Transportation of Ontario, dated January 19, 2000.

10. On January 19, 2000, Ophthalmologist Dr. S. Blair Fearon wrote to the Medical Review Board as follows: “This pleasant 24 year old had removal of a meningioma in December 1997 [read 1996] and again in July 1999, the second with a peripheral field loss. Enclosed are two recent visual field tests, and a Driver Rehabilitation Report from Bloorview MacMillan Centre dated October 15, 1999. His present acuity best corrected is 20/40 OD, 20/20 OS. Intraocular pressure is normal. Extraocular movements are full and there is no diplopia. Anterior segment reveals an afferent papillary defect OD. Dilated fundus examination reveals evidence of tumor compression in the right eye below the optic nerve. Automated perimetry 24-2 reveals a right inferior quadrantanopia extending superior to the horizontal midline in the right eye. The 120 degree field shows similar changes. I hope this information is helpful for assessment of Colin’s case for restoring his driver’s licence.

It is important to note that this medical report mistakenly refers to my earlier surgery as having occurred in December 1997, when it actually was performed in December 1996. Attached hereto, and marked as Exhibit “6” to my affidavit, is a copy of correspondence from Dr. Fearon to the Ministry of Transportation of Ontario, dated January 19, 2000.

17. On April 18, 2000, the Ministry of Transportation of Ontario wrote to me and informed me that my licence had been suspended.

“A Vision report has been received by the Ministry which indicates that your visual field does not meet the minimum requirement. After thorough consideration of all relevant facts available to the Ministry, it has been decided that your licence should be suspended under Section 32(12)(b)(ii) of the Highway Traffic Act. An official notice of the suspension has been mailed to you under separate cover. I am sure you will appreciate that this decision was reached with a view to ensuring your own safety and that of other users of the highways, particularly in light of the complex traffic situations which are prevalent today. If your vision improves, we will be pleased to reconsider your case upon receipt of an up-to-date assessment from either an optometrist or an ophthalmologist including the Humphrey or Goldmann 60-degree perimetry charts which relate to your visual field.”

Attached hereto, and marked as Exhibit “8” to my affidavit, is a copy of correspondence from the Ministry of Transportation of Ontario to Colin Shepherd, dated April 18, 2000.

18. On April 26, 2000, the Ministry of Transportation of Ontario mailed to me a Notice of Suspension of Driver’s Licence, which notified me that my licence would be suspended effective May 6, 2000.

19. On May 3, 2000, I wrote to the Medical Review Board as follows: “I was shocked to receive your letter of April 18, 2000 advising me that my licence was to be suspended. I would like to appeal the suspension. This decision is causing me great distress. ….

20. On June 20, 2000, the Ministry of Transportation of Ontario wrote to inform me that I could not appeal the suspension of my driver’s licence.

“This letter is in response to your request for an appeal of the suspension of your driving privilege as it relates to vision standards in Ontario. The Ontario vision standard for driver licensing purposes is a mandatory requirement of legislation under the Highway Traffic Act. Therefore, there are no provisions for appeal. This standard was established with the guidance of the Canadian Medical Association and the Canadian Ophthalmologidal Association in recognition of the importance of adequate visual functions for the safe operation of a motor vehicle. Regulation 340/94 of the Highway Traffic Act sets our specific requirements for the issuance of a driver’s licence. To assist in reaching decisions on difficult cases such as yours, we rely on the expertise of our Medical Advisory Committee which consists of a panel of specialists in the field of cardiology, endocrinology, neurology, ophthalmology and psychiatry. This committee has reviewed your case and have confirmed that you do not meet the required legislative standards. We will be pleased to reconsider your case upon receipt of an up-to-date assessment from either an optometrist or an ophthalmologist including the Humphrey or Goldemann [sic] 60 degree perimetry charts which relates to your visual field.”

25. On June 13, 2001, my eyesight was tested. Attached hereto, and marked as Exhibit “14” to my affidavit, is a copy of a medical report, dated June 13, 2001.

26. On July 10, 2001, my eyesight was tested. Attached hereto, and marked as Exhibit “15” to my affidavit, is a copy of a medical report, dated July 10, 2001.

27. On October 24, 2001, the Ministry of Transportation of Ontario wrote to me as follows:

“A vision report has been received by the Ministry which indicates that your visual field does not meet the minimum requirement. After thorough consideration of all relevant facts available to the Ministry, it has been decided that your driver’s licence should remain suspended under Section 32(12)(b)(ii) of the Highway Traffic Act. I am sure you will appreciate that this decision was reached with a view to ensuring your own safety and that of other users of the highways, particularly in light of the complex traffic situations which are prevalent today. If your vision improves, we will be, pleased to reconsider your case upon receipt of an up-to-date assessment from either an optometrist or ophthalmologist – including Humphrey or Goldmann 60-degree perimetry charts for each eye with fixation losses not to exceed 15%.”

7On December 13, 2001, the Applicant’s eyesight was tested resulting in a medical report, dated December 13, 2001, attached as Exhibit 17 to the Applicant’s affidavit. His eyesight was also tested on March 14, 2002 resulting in a medical report of March 14, 2002, attached as Exhibit 18 to the affidavit. Mr. Shepherd’s eyesight was again tested on January 13, 2003, resulting in a medical report attached to his affidavit as Exhibit 19.

VI. The Applicant’s medical condition and s. 18(b) of Ont. Reg. 340/94

8When asked during the course of argument, counsel for the Applicant agreed that nothing in the material shows that the Applicant satisfies the prerequisites of s. 18(b) of Ont. Reg. 340/94 (supra).

9In his affidavit, sworn March 30, 2004, Dr. Michael M. Henry, since 1976, a Fellow of the Royal College of Physicians and Surgeons of Canada in the specialty of Ophthalmology and a consultant to the Ministry since 2002, deposes:

7. …. An homonymous hemianopsia (which is the condition Mr. Shepherd has) refers to a same side defect of each of the patient’s right and left visual fields.

8. …. Based on the information provided to me from the Ministry of Transportation file, though, Mr. Shepherd does not meet the minimal visual standards for having a driving licence.

VII. Conclusions

10In my view, the Ministry’s letter of June 20, 2000 was accurate when it stated: “The Ontario vision standard for driver licensing purposes is a mandatory requirement of legislation under the Highway Traffic Act.” The legislation that establishes the standard is s. 18(1)(b) of Ont. Reg. 340/94 (supra). It is mandatory and analogous to s. 12(6) of the same regulation which states: “An applicant for a Class G…driver’s licence must be at least 16 years of age at the time of application”. So long as the Applicant fails to attain or fails to maintain the prerequisite standard set by s. 18(b) of Ont. Reg. 340/94, neither the Ministry nor the Registrar of Motor Vehicles has any discretion to issue a driver’s licence to the Applicant – he must comply to qualify for a licence.

VIII. Result

11The application for judicial review is dismissed.

IX. Costs

12In my view, this is not a case for costs.

O’Driscoll J.

Then J.

Ferrier J.

Released:

COURT FILE NO.: 492/03

DATE: 20040423

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

o’driscoll, then and ferrier jj.