Court File and Parties

CITATION: McCarten v. The Ministry of Transportation, 2014 ONSC 1299 DIVISIONAL COURT FILE NO.: DC-12-409JR DATE: 20140228

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MARROCCO, WHITAKER, ELLIES J.J.

B E T W E E N:

Donald McCarten Applicant (Respondent on Appeal)

AND:

The Ministry of Transportation of Ontario Respondent (Appellant)

Jesse R. Herman Sandra Nishikawa

HEARD: February 26, 2014

ENDORSEMENT

[1] The applicant applied to the Ministry of Transportation for a licence to permit him to operate a school purposes bus. The Minister decided to defer the decision as to whether to issue the licence until the applicant’s outstanding criminal charges were resolved.

[2] The applicant seeks either an order overturning the Minister’s decision to deny his request or, alternatively, an order requiring the Minister to make a decision.

[3] The Minister argues that the application for judicial review is premature. We are not able to agree, in light of the Ministry’s admission in correspondence to the applicant that their decision to defer was “final”, and the possibility that the Minister could have issued the applicant a temporary licence, instead.

[4] We are also not able to accept the submission that to defer a decision under the Highway Traffic Act cannot amount to a denial. However, we are not persuaded that such a denial has occurred in this case. The deferral is not indefinite, but only until the disposition of the applicant’s outstanding charges. Because there has been no denial, the applicant’s first request cannot be granted.

[5] With respect to the applicant’s second request, that is for an order compelling the Minister to make a decision, we do not believe that the Minister’s decision to defer is unreasonable. The outstanding charges, especially those regarding the possession of a switchblade knife, justify the Minister’s concerns regarding the safety of the potential passengers of any school purposes bus the applicant might be permitted to drive. If the applicant is convicted of the charges involving the possession of controlled drugs for the purpose of trafficking, the applicant would not be entitled to a school purposes licence at all.

[6] In our view, the Minister’s decision to defer falls within the range of reasonable outcomes with respect to the applicant’s application and meets the requirements of transparency and intelligibility necessary to survive judicial review.

[7] The application, therefore, is dismissed.

[8] The parties may make written submissions with respect to the issue of costs, of no more than two pages in length, excluding attachments, as follows:

(a) The respondent shall have seven days from the date of the release of this endorsement to serve and file submissions; and

(b) The applicant shall have seven days following receipt of the respondent’s submissions within which to do likewise.

Marrocco J.

Whitaker J.

Ellies J.

Released: February 28, 2014

CITATION: McCarten v. The Ministry of Transportation, 2104 ONSC 1299 DIVISIONAL COURT FILE NO.: DC-12-409JR DATE: 20140228

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MARROCCO, WHITAKER, ELLIES J.J.

B E T W E E N:

Donald McCarten Applicant (Respondent on Appeal)

AND:

The Ministry of Transportation of Ontario Respondent (Appellant)

ENDORSEMENT

Released: February 28, 2014