MacLennan v. Her Majesty the Queen in Right of the Province of Ontario (as Represented by the Minister of Transportation)

[Indexed as: MacLennan v. Ontario (Minister of Transportation)]

Ontario Reports

Ontario Superior Court of Justice,

Divisional Court,

Marrocco A.C.J. Whitten and Thomas JJ.

June 12, 2014

121 O.R. (3d) 134 | 2014 ONSC 2946

Case Summary

Charter of Rights and Freedoms — Equality rights — Age discrimination — Regulation under Highway Traffic Act which requires drivers 80 years of age and older to be tested every two years not discriminating on ground of age contrary to s. 15 of Charter — Canadian Charter of Rights and Freedoms, s. 15.

A Regulation under the Highway Traffic Act, R.S.O. 1990, c. H.8 requires drivers 80 years of age and over to be tested every two years in order to demonstrate that they continue to meet the qualifications for a driver's licence. The applicant brought an application for a declaration that that requirement is unconstitutional as it discriminates on the basis of age contrary s. 15(1) of the Canadian Charter of Rights and Freedoms.

Held, the application should be dismissed.

The Divisional Court has jurisdiction to hear an original application challenging the constitutionality of regulations.

The older driver program is not based on prejudice or stereotype. It is an individualized program which responds to recognized concerns with respect to the problematic aspects of aging. It does not automatically deprive the mature driver of his or her driving privileges. It is not a program based on age per se; it is more of a program sensitive to the potential problems of aging and the context of maintaining a regime of road safety. Because of the individualized approach of the program, it cannot be said to be discriminatory.

British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, [1999] S.C.J. No. 73, 181 D.L.R. (4th) 385, 249 N.R. 45, [2000] 1 W.W.R. 565, J.E. 2000-43, 131 B.C.A.C. 280, 70 B.C.L.R. (3d) 215, 47 M.V.R. (3d) 167, REJB 1999-15531, 36 C.H.R.R. D/129, 93 A.C.W.S. (3d) 524, consd

Other cases referred to

80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., [1972] 2 O.R. 280, [1972] O.J. No. 1713, 25 D.L.R. (3d) 386 (C.A.); Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, [1989] S.C.J. No. 6, 56 D.L.R. (4th) 1, 91 N.R. 255, [1989] 2 W.W.R. 289, J.E. 89-259, 34 B.C.L.R. (2d) 273, 25 C.C.E.L. 255, 36 C.R.R. 193; Eaton v. Brant County Board of Education (1997), 31 O.R. (3d) 574, [1997] 1 S.C.R. 241, [1996] S.C.J. No. 98, 142 D.L.R. (4th) 385, 207 N.R. 171, J.E. 97-344, 97 O.A.C. 161, 41 C.R.R. (2d) 241, 68 A.C.W.S. (3d) 863; Gosselin v. Quebec (Attorney General), [2002] 4 S.C.R. 429, [2002] S.C.J. No. 85, 2002 SCC 84, 221 D.L.R. (4th) 257, 298 N.R. 1, J.E. 2003-126, 100 C.R.R. (2d) 1, 119 A.C.W.S. (3d) 43; [page135] Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), [2013] 3 S.C.R. 810, [2013] S.C.J. No. 64, 2013 SCC 64, 366 D.L.R. (4th) 62, 451 N.R. 80, J.E. 2013-2036, 312 O.A.C. 169, 235 A.C.W.S. (3d) 547, EYB 2013-229518, 2013EXP-3752, 58 Admin. L.R. (5th) 173; Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, [1999] S.C.J. No. 12, 170 D.L.R. (4th) 1, 236 N.R. 1, J.E. 99-700, 43 C.C.E.L. (2d) 49, 60 C.R.R. (2d) 1, 86 A.C.W.S. (3d) 1159; MacLennan v. Ontario (Minister of Transportation), [2013] O.H.R.T.D. No. 732, 2013 HRTO 714; McKinney v. University of Guelph, [1990] 3 S.C.R. 229, [1990] S.C.J. No. 122, 76 D.L.R. (4th) 545, 118 N.R. 1, J.E. 91-12, 45 O.A.C. 1, 91 CLLC Â17,004 at 16062, 2 C.R.R. (2d) 1, 24 A.C.W.S. (3d) 479; R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, [1986] S.C.J. No. 70, 35 D.L.R. (4th) 1, 71 N.R. 161, J.E. 87-82, 19 O.A.C. 239, 30 C.C.C. (3d) 385, 87 CLLC 12001, 87 CLLC para. 14,001 at 12001 , 55 C.R. (3d) 193, 28 C.R.R. 1, 1 W.C.B. (2d) 19; R. v. Kapp, [2008] 2 S.C.R. 483, [2008] S.C.J. No. 42, 2008 SCC 41, 175 C.R.R. (2d) 185, EYB 2008-135098, J.E. 2008-1323, [2008] 8 W.W.R. 1, 294 D.L.R. (4th) 1, 232 C.C.C. (3d) 349, [2008] 3 C.N.L.R. 347, 376 N.R. 1, 256 B.C.A.C. 75, 37 C.E.L.R. (3d) 1, 58 C.R. (6th) 1, 78 W.C.B. (2d) 343; Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, 175 D.L.R. (4th) 193, 241 N.R. 1, J.E. 99-1277, 124 B.C.A.C. 1, 135 C.C.C. (3d) 129, 25 C.R. (5th) 1, 63 C.R.R. (2d) 189, 42 W.C.B. (2d) 381; Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396, [2011] S.C.J. No. 12, 2011 SCC 12, 229 C.R.R. (2d) 329, 412 N.R. 149, 2011EXP-867, 2011EXPT-511, 87 C.C.P.B. 161, J.E. 2011-461, D.T.E. 2011T-181, EYB 2011-187170, [2011] 4 W.W.R. 383, 15 B.C.L.R. (5th) 1, 329 D.L.R. (4th) 193, 300 B.C.A.C. 120; Yuan v. Transitional Council of the College of Traditional Chinese Medicine Practitioners and Acupuncturists of Ontario, [2014] O.J. No. 420, 2014 ONSC 351, 316 O.A.C. 272, 300 C.R.R. (2d) 1 (Div. Ct.)

Statutes referred to

Canadian Charter of Rights and Freedoms, ss. 1, 15, (1), (2)

Courts of Justice Act, R.S.O. 1990, c. C.43, ss. 11(2) [as am.], 18(1) [as am.]

Highway Traffic Act, R.S.O. 1990, c. H.8 [as am.], ss. 31, 32 [as am.], (14), (e)

Human Rights Code, R.S.O. 1990, c. H.19, ss. 1 [as am.], 47

Rules and regulations referred to

O. Reg. 340/94 (Highway Traffic Act) [as am.], ss. 5, 14 [as am.], (1)(a) [as am.], 15 [as am.], (5), 16 [as am.], (a)

O. Reg. 339/94 (Highway Traffic Act) [as am.]

Authorities referred to

Monforton, Lisa, "Thanks for Taking my License Away", The Globe and Mail (April 17, 2014), D4

APPLICATION for a declaration of unconstitutionality.

H. Kenneth MacLennan, personally.

Sara Weinrib, Matthew Horner and David Milner, for respondent.

[1] BY THE COURT: -- This application commenced as an application for judicial review of the Ontario Human Rights Tribunal decision in MacLennan v. Ontario (Minister of Transportation), [2013] O.H.R.T.D. No. 732, 2013 HRTO 714, a decision made by Associate Chair David Wright. [page136]

[2] At the actual hearing before this court on April 7, 2014, it became readily apparent that neither side took issue with the decision of the tribunal member. Rather, the application was, in effect, an original application before this court for a declaration that the testing procedures set out in the regulations to the Highway Traffic Act, R.S.O. 1990, c. H.8 with respect to those of an advanced age are unconstitutional. This "evolved application", as it were, was actually suggested by the tribunal member.

Issues

[3] Essentially, what Mr. MacLennan is challenging is whether the Highway Traffic Act regulations with respect to the testing of those citizens beyond 80 years of age are discriminatory and offend s. 15 of the Canadian Charter of Rights and Freedoms. That question raises the collateral issue of whether, if some form of discrimination is found, the discrimination can be justified as a reasonable limit under s. 1 of the Charter.

[4] The thrust of Mr. MacLennan's argument is that the statistical basis for such testing, as revealed through the affidavit of Dr. Yoassry Elzohairy, is countered by other studies, and that the Ministry of Transportation (the "Ministry" or "MTO") cannot demonstrate that the measures in question are in fact effective in addressing safety concerns.

[5] The approach of this court will be as follows:

I. the ability of the Divisional Court to entertain an original Charter application will be reviewed;

II. the regulation in question will be set out within the legislative context of the Highway Traffic Act;

III. the jurisprudence with respect to claims of discrimination will be reviewed; and

IV. conclusions will be drawn as to the constitutionality of the impugned legislation.

I. The jurisdiction of the Superior Court (Divisional

Court) and stand-alone Charter applications

[6] Associate Chair Wright wrote that "the Superior Court is a court of general jurisdiction that can apply the Charter to determine whether [the regulations of the Highway Traffic Act] are invalid and strike them down" (at para. 5). Member Wright focused his analysis on the applicability of ss. 1 and 47 of the Human Rights Code, R.S.O. 1990, c. H.19. The member, notwithstanding the concessions of both sides, was not prepared to give [page137] himself jurisdiction to hear the stand-alone application with respect to the constitutionality of the regulations relative to ss. 15 and 1 of the Charter. Instead, the tribunal concentrated on the applicability of the Human Rights Code and its notwithstanding provision.

[7] Section 11(2) of the Courts of Justice Act, R.S.O. 1990, c. C.43 provides that "[t]he Superior Court of Justice has all the jurisdiction, power and authority historically exercised by courts of common law and equity in England and Ontario".

[8] As a superior court of general jurisdiction and the successor to the Supreme Court of Ontario, the Superior Court has "all of the powers that are necessary to do justice between the parties" and, unless specifically limited, unlimited jurisdiction in substantive law in civil matters (80 Wellesley St. East Ltd. v. Fundy Bay Builders Ltd., [1972] 2 O.R. 280, [1972] O.J. No. 1713, 25 D.L.R. (3d) 386 (C.A.), at para. 9). The Divisional Court is, by virtue of s. 18(1) of the Courts of Justice Act, a branch of the Superior Court. A recent example of the Divisional Court entertaining a challenge to the constitutionality of a statute's regulations in the first instance can be found in Yuan v. Transitional Council of the College of Traditional Chinese Medicine and Acupuncturists of Ontario, [2014] O.J. No. 420, 2014 ONSC 351 (Div. Ct.).

II. The [Highway Traffic Act](https://www.canlii.org/en/on/laws/stat/rso-1990-c-h8/latest/rso-1990-c-h8.html) and its regulations

The approach to the validity of regulations in general

[9] The regulations which flow from the enabling statute must be consistent with the objectives of that statute. This consistency is the backdrop against which a claim of discrimination is considered. The Supreme Court of Canada set out the factors to be applied by courts in determining whether regulations are consistent with the objective of their enabling statute in Katz Group Canada Inc. v. Ontario (Health and Long-Term Care), [2013] 3 S.C.R. 810, [2013] S.C.J. No. 64, 2013 SCC 64. These factors were summarized by the Divisional Court in Yuan v. Transitional Council of the College of Traditional Chinese Medicine and Acupuncturists of Ontario, at para. 3:

(i) Regulations benefit from a presumption of validity, which: (a) places the burden on the challengers to demonstrate invalidity, and (b) favours an interpretive approach that reconciles the regulation with its enabling statute so that, where possible, the regulation is construed in a manner which renders it intra vires:

(ii) Both the challenged regulation and the enabling statute should be interpreted using a broad and purposive approach; [page138]

(iii) The court's enquiry does not involve assessing the policy merits of the regulation or the underlying motive of enactment;

(iv) The court should not inquire into the underlying political, economic, social or partisan considerations for the regulations, and;

(v) To be found ultra vires on the basis of inconsistency with statutory purpose, regulations must be "irrelevant", "extraneous" or "completely unrelated" to the statutory purpose.

Driving legislation and regulations

[10] Driving an automobile is a privilege, not a right. This privilege is only granted to those who can demonstrate that they are likely to drive safely (Highway Traffic Act, s. 31).

[11] The objective of reasonable safety in the operation of a motor vehicle is achieved through a licencing system. In British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 S.C.R. 868, [1999] S.C.J. No. 73, at para. 26, Justice McLachlin (as she then was) described the task facing the Superintendent of Motor Vehicles:

The evidence suggests that the Superintendent set a goal of reasonable safety. It would have been unfeasible for the Superintendent to have set a goal of absolute road safety, as nobody is a perfect driver. Even among drivers with excellent vision, hearing and reflexes, there is a range of driving ability. Moreover, many people are licensed even though their physical characteristics might make them less safe than the average driver. The medical consultants at the Motor Vehicle Branch who assess the risk involved in licensing drivers with various disabilities seemed to be aware of the potential hardship involved in losing one's licence. The consultants balance the need for people to be licensed with the need for reasonable highway safety. For example, it appears the Superintendent licensed people with severe hearing difficulties, provided that they could pass an individualized test showing that they compensate reasonably well for their lack of hearing. Similarly, the Superintendent licensed people over 80, even though their age made them more susceptible to maladies like heart attacks and strokes and reduced their reaction time, provided again that they could pass an individualized test showing that they compensated reasonably well for any such disabilities that they had. To pass these tests, the hearing impaired or elderly were not required to demonstrate that they were perfectly safe drivers. They were merely required to demonstrate that they could drive reasonably safely.

[12] In Justice McLachlin's view, there was no question that a reasonable connection had to be demonstrated between the objective of maintaining highway safety and the licensing of drivers [at para. 28]:

Common sense and experience tells us that driver's licenses should only be issued to those who can demonstrate a reasonable degree of ability and safety in driving.

[13] Sections 31 and 32 of the Highway Traffic Act provide for a differentiated licensing scheme in Ontario and authorize the [page139] making of regulations which prescribe different types of licences, any appropriate conditions for the operation of a motor vehicle and any required examinations.

[14] Section 32(14) sets out the areas the regulations cover. Subsection 32(14)(e), which is relevant to this case, authorizes the making of regulations "respecting practical and written driving examinations, mental examinations and physical examinations, including ophthalmic and auditory examinations, for applicants for and holders of drivers' licences and endorsements" (emphasis added).

[15] O. Reg. 339/94 provides for the demerit point system that arises out of driver behaviour, usually manifested by infractions under the Highway Traffic Act, which may result in licence suspension or attendance for an interview. This is a system which is consistent with maintaining "quality control" of the privilege of driving.

[16] Ont. Reg. 340/94 ("the Regulation") prescribes the various classes of licences and the conditions which are required to operate certain vehicles. Section 5 deals with novice drivers who are subjected to certain conditions geared to their age and experience in this graduated system. For example, a novice cannot operate a vehicle on the 400 series highways without an accompanying adult passenger who, in turn, has less than 50 mg. of alcohol in 100 ml. of blood.

[17] Section 16 of the Regulation prescribes for individuals who have achieved a particular age and who possess a particular licence, that they successfully pass the applicable examination prescribed in s. 15 and demonstrate "that he or she continues to meet the qualifications prescribed in section 14".

[18] Section 14 focuses on the physical and mental health of the individual. Subsection 14(1)(a) states that the applicant or holder of a driver's licence must not "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 . . .". As can be anticipated, this section goes on to discuss reporting by medical practitioners and the applicable medical standards.

[19] Section 15 prescribes what may constitute "an examination" of either an applicant or a licence holder. Obviously, the use of the word of "may" denotes a discretion. The examination may include an examination of the person's knowledge of the Highway Traffic Act and the regulations; an actual demonstration by the individual of their ability to safely drive the type of vehicle for which they are licensed to drive; and a medical and physical examination, test or procedure to determine the person's fitness to drive or whether they meet the qualifications enumerated [page140] in s. 14. Subsection 15(5) specifically addresses the individual's "horizontal visual field".

[20] Returning to s. 16, subsection (a) requires that every two years those having reached 80 years of age are to complete successfully the applicable examinations referred to in s. 15 and demonstrate that they continue to meet the qualifications referred to in s. 14. It is this section that the applicant argues offends s. 15 of the Charter, in that it discriminates against those 80 years of age and older.

[21] The mechanics of the testing required by s. 15 for those 80 years of age and older, which have been observed to be discretionary, are described by Dr. Yoassry Elzohairy, manager of road safety, Policy Office for the Safety Policy and Educational Branch of the Ministry of Transportation of Ontario. In his affidavit, affirmed September 27, 2012, Dr. Elzohairy described how the licensing regime for drivers 80 years of age and over has evolved. Dr. Elzohairy also described various studies and what conclusions can be drawn from the statistics generated.

[22] Since 1996, the Senior Driver Group Education Program has had four mandatory components: vision screening; knowledge testing; driver record review; and classroom instruction. As of August 2007, a "MTO Driver Improvement Counsellor's Guide" was prepared to inform and guide those MTO personnel who administer the testing.

[23] The biennial renewal process requires a driver who has attained 80 years of age and over to attend a group educational session ("GES"), and pass a subsequent written knowledge test and vision test. Prior to the GES, the driving record of the individual driver is reviewed with the driver by a trained group counsellor. Those trained counsellors may, based on the individual driver's record, decide if the driver should be road-tested prior to the licence renewal.

[24] The actual GES focuses on "age related declines and how they may affect driving, the importance of self-awareness, compensation techniques and personal decision making with respect to the type of driving, and the frequency of driving that one should engage in". Obviously, the latter encourages the individual to consider the possibility of the cessation of driving.

[25] These sessions are designed to alert the individual as to those phenomena of aging which may negatively impact on the physical and mental dexterity necessary to operate a motor vehicle. Comparative situations of the risks facing older drivers are also discussed. [page141]

[26] If a driver fails to participate in the GES or the participation or lack thereof causes the instructor to have a particular concern, that driver may be "flagged" for a referral to a drive test centre.

[27] At the end of the GES, a driver takes a general knowledge test geared to the needs of elderly drivers.

[28] Statistics for 2011 revealed that of the 121,862 drivers who attended the GES, less than 2 per cent were referred on for a road test.

[29] Dr. Elzohairy emphasizes that the instructor's materials stress that the treatment of these older drivers must be individual, respectful and free from misconceived stereotypes concerning the elderly.

[30] The Ministry has performed satisfaction surveys of those who have gone through the process. Positive and negative feedback was received and was incorporated into improvements to the process.

III. Discrimination jurisprudence

[31] Section 15(1) of the Canadian Charter of Rights and Freedoms states:

Every individual is equal before and under the law and has the right to equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, nationality or ethnic origin, colour, religion, sex, age, or mental or physical disability.

(Emphasis added)

[32] Subsection 15(2) allows for laws that have as their objective the amelioration of the condition of disadvantaged individuals or groups because of their characteristics such as, for example, age.

[33] Age, like disability, is different "from other enumerated grounds such as race or sex because there is no individual variation with respect to [the latter] grounds" (Eaton v. Brant County Board of Education (1997), 31 O.R. (3d) 574, [1997] 1 S.C.R. 241, at para. 69, Lamer C.J.C.). This variability within "age" as a ground was referred to above by Justice McLachlin in British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights). It is beyond question that there is a genuine relationship between advancing age and declining ability. Nevertheless, it is a matter that must be approached delicately, as each individual ages in his or her own unique way (McKinney v. University of Guelph, [1990] 3 S.C.R. 229, [1990] S.C.J. No. 122, at para. 88, La Forest J.).

[34] The right to equality protected by the Charter does not necessarily mean that everyone within an enumerated group is treated identically. It may be necessary to treat people differently [page142] in some contexts in order to accommodate individual differences and to produce equal treatment in a "substantive sense" (Law v. Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497, [1997] S.C.J. No. 12, at para. 25).

[35] Inevitably, any assessment as to the possibility of discrimination is "contextual".

[36] The negative discrimination to be avoided has been identified by Justice McIntyre in Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at para. 19:

. . . discrimination may be described as a distinction, whether intentional or not but based on grounds relating to personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or groups not imposed upon others, or which withholds or limit access to opportunities, benefits and advantages available to other members of society. Distinctions based on personal characteristics attributed to an individual solely on the basis of association with a group will rarely escape the charge of discrimination, while those based on an individual's merits and capacities will rarely be so classed.

[37] As the last phrase of the above definition indicates, negative discrimination can be countered by legislation that takes into account the needs, capabilities and circumstances of individuals, while respecting their intrinsic value.

[38] In Law, supra, Justice Iacobucci spoke of an objective approach to the possibility of discrimination, focusing on the circumstances of the individual in a particular context, with an eye to whether or not the treatment in question demeaned the dignity of the individual affected (at para. 75).

[39] As for the evidential burden upon a discrimination claimant, the claimant does not have to (1) provide social science data, as the court can take judicial notice of certain phenomena; or (2) establish the intent of the legislature. What must be shown is that either the purpose or the effect of the legislation infringes upon s. 15 (Law, supra, at para. 80).

[40] In R. v. Kapp, [2008] 2 S.C.R. 483, [2008] O.J. No. 42, 2008 SCC 41, at para. 17, Chief Justice McLachlin and Justice Abella stated that precedent has established a two-part test for demonstrating discrimination: "(1) Does the law create a distinction based on an enumerated or analogous ground? (2) Does the distinction create a disadvantage by perpetuating prejudice or stereotyping?"

[41] In Withler v. Canada (Attorney General), [2011] 1 S.C.R. 396, [2011] S.C.J. No. 12, 2011 SCC 12, at para. 39, Chief Justice McLachlin and Justice Abella wrote of the substantive equality referred to above and its interaction with the two-part test:

Substantive equality, unlike formal equality, rejects the mere presence or absence of difference as an answer to differential treatment. It insists on [page143] going behind the facade of similarities and differences. It asks not only what characteristics the different treatment is predicated upon, but also whether these characteristics are relevant considerations under the circumstances.

[42] Therefore, differential discrimination is not bad per se. It is not necessary to look at comparable groups. In fact, it can actually become problematic if, for example, elderly drivers are compared with novice drivers as to accident rates, because with closer scrutiny the differences between the two groups become accentuated. Differential discrimination may actually ameliorate the circumstances of the group. Again, this distinction emphasizes the need for a contextual approach.

[43] However, the measures adopted in the legislation with this aim of amelioration must still be proportionate and appropriate to the ends of the legislation. In this case, it is the licensing of drivers who can safely operate a motor vehicle. Proportionality involves three aspects: (1) careful designing of the limiting measures or a rational connection between the measures and the objective of the legislation; (2) minimum impairment of the right; and (3) any encroachment must not be of such a magnitude that the legislative objective is outweighed (R. v. Edwards Books and Art Ltd., [1986] 2 S.C.R. 713, [1986] S.C.J. No. 70, at para. 117, Dickson C.J.C.).

[44] Legislative measures which provide for an individualized process is antithetical to the notion of a stereotype (Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 S.C.R. 625, [1999] S.C.J. No. 31, at para. 89, McLachlin J.). As Justice Sopinka noted in Eaton v. Brant County Board of Education, supra, "[i]t is recognition of the actual characteristics, and reasonable accommodation of these characteristics which is the central purpose of s. 15(1) in relation to disability" (at para. 67). The same can be said of age.

IV. Conclusion

[45] The elderly driver program is not based on prejudice or stereotype. The same could be said of the other age-related testing which is set out in s. 16 of the Regulation. The program responds to recognized concerns with respect to the problematic aspects of aging. It is an individualized program. It does not automatically deprive the mature driver of his or her privilege. It provides an opportunity for driver education and, if concerns emerge during the contact with Ministry officials, further testing may be required. All in all, it is an unobtrusive approach to a delicate issue. There is no hint of the negative discrimination referred to above. It cannot be said that it is a program based per se on age; it [page144] is more a program sensitive to the potential problems of aging in the context of maintaining a regime of road safety.

[46] There is a statistical basis for the concerns in relation to road safety, the expressed objective of the legislation. Although Mr. McLennan has produced studies which have challenged some of the conclusions reached by the studies relied upon by the Ministry, or which have questioned how effective the program is, the analysis of discrimination does not have to be performed to mathematical or statistical certainty. As Chief Justice McLachlin stated in Gosselin v. Quebec (Attorney General), 2002 SCC 84, [2002] 4 S.C.R. 429, [2002] S.C.J. No. 85, at para. 56, "[t]he legislator is entitled to proceed on informed general assumptions without running afoul of s. 15 . . . provided these assumptions are not based on arbitrary and demeaning stereotypes."

[47] Statistics aside, the problematic aspects of aging in some individuals are a matter of public knowledge and common sense, as Chief Justice McLachlin noted. Some elderly citizens do have issues with the "side effects" of medication, illnesses such as diabetes and dementia, physical disabilities and impaired vision (Lisa Monforton, "Thanks for Taking my License Away", The Globe and Mail (April 17, 2014)).

[48] Dr. Elzohairy's affidavit and supplementary affidavit reveal a program that is sensitive to the needs of its clientele. The elderly driver can actually learn how to identify risk factors and the program is reviewed periodically as to its effectiveness.

[49] Because of the individualized approach of the program it cannot be said to be discriminatory in the negative sense as described by Justice McIntyre. It is not substantively discriminatory. It is this connection to the objective of s. 15(1) and (2) of the Charter that removes the legislation from this characterization.

[50] The challenge to this legislation does not survive the first part of the test annunciated by Chief Justice McLachlin and Justice Abella in R v. Kapp, supra. Therefore, any further analysis into the second part of that test, or into whether the testing regime can be saved under a s. 1 analysis, is moot. For all of the above, the biennial renewal process provided for under s. 16(a) of the Regulation is consistent with s. 15 of the Charter, and the applicant's constitutional challenge is dismissed.

[51] As noted by the panel, Mr. McLennan and counsel for the Ministry are to be commended for the breadth and quality of their submissions and, perhaps more importantly, the civility with which they treated each other and the court.

[52] It was agreed by all that there would be no order as to costs, whatever the outcome.

Application dismissed.

End of Document