Mitanidis v Ontario (Minister of Transportation), 2024 ONSC 1838
Court File and Parties
CITATION: Mitanidis v Ontario (Minister of Transportation), 2024 ONSC 1838
DIVISIONAL COURT FILE NO.: 122/24
DATE: 20240327
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: PHILIP MITANIDIS, Applicant
-and -
ONTARIO (MINISTER OF TRANSPORTATION), Respondent
BEFORE: FL Myers J.
COUNSEL: Philip Mitanidis, assisted by his son Kevin Mitanidis
Priscila Atkinson, for the Respondent
Morgana Kellythorne, for the Licence Appeal Tribunal
HEARD at Toronto: March 27, 2024
CASE CONFERENCE ENDORSEMENT
[1] The applicant seeks judicial review of the exercise of the Minister’s authority to require him to provide medical evidence of his cognitive fitness to drive based on the report of a police officer. He also challenges the Minister’s suspension of his driver’s license when he failed to deliver evidence as required.
[2] The applicant appealed the Ministers decisions to the LAT. It ruled that it had no jurisdiction to hear appeals from license suspensions on the basis applicable here. The notice of application before this court is not clear whether the LAT’s decision is being appealed or if it is just recited as among the grounds of judicial review of the Minister’s decisions.
[3] Mr. Mitanidis is 83 years old. He passed his most recent biennial fitness examination last August. He cannot understand why he was then required to produce fresh evidence of his fitness to drive based on a police officer’s report to the MTO this past November.
Mr. Mitanidis cannot be Represented by a Paralegal in this Court
[4] To this point, Mr. Mitanidis has been represented in this proceeding by his son who is a licensed paralegal. A paralegal has no entitlement to represent a party before this court. Moreover, the court has no discretion to allow a licensed paralegal to act as agent for a client. Equiprop Management Ltd. v. Harris, 2000 29053 (Div. Ct.), at paras. 53 and 57. Whether individual judges might allow the applicant to be assisted by his son while representing himself is for them to decide.
[5] Kevin Mitanidis submits that his father needs help in the complex world of administrative law and court proceedings. I accept that is true for most of us.
[6] Kevin Mitanidis advises that he has numerous university degrees including a law degree. He is working on a Master of Law and may then try to obtain his call to the bar. I accept that is true as well. But it is not relevant.
[7] If the applicant needs help with the processes of legal proceedings, he needs to retain a licensed lawyer. I allowed Kevin Mitanidis to speak today because I needed to understand the issues that he has purported to raise for his father. But as I deal below with steps necessary to manage this proceeding, I would not expect to hear Kevin Mitanidis again.
The Applicant Needs an Extension of Time
[8] The application was brought beyond the 30-day time limit from the date of the decisions that are challenged. The attempted appeal to the LAT may explain the bulk of the delay, however. This may be an issue on which the parties can agree. If Ms. Atkinson can get instructions to agree to an order extending the time, then the parties may submit a consent and draft order for signing. If the Minister is not willing to consent, then a case conference will be required to resolve the issue (or to set a schedule to do so if necessary).
The Applicant is Not Entitled to a Stay of the Minister’s Decisions
[9] The applicant seeks a stay of the suspension of his license and the decision requiring him to produce medical evidence of his fitness to drive pending the hearing of the application. The triage judge put the parties on notice that the issue could be dealt with today at this case conference. (See: Rule 50.13 (6)).
[10] Ms. Atkinson requested that a formal motion be scheduled. But she was able to make some submission on the issues.
[11] I accept Mr. Mitanidis’ submission that the issue is important and should not wait. Moreover, no more evidence is required than the basic outline of facts presented.
[12] To obtain a stay of proceedings, Mr. Mitanidis needs to show:
a. that he has advanced a serious question to be heard by the court in this application;
b. that without a stay of his suspension and the order to provide evidence of fitness he will suffer harm that cannot be compensated by money damages paid to him later; and
c. that the harm to him of being denied a stay outweighs the harm to the respondent if the court grants a stay. This third point is referred to as the “balance of convenience”.
[13] I am very dubious that there is a serious issue to be heard. Mr. Mitanidis submits that he was entitled to notice before the Minister acted on the police officer’s tip that led the Minister to require Mr. Mitanidis to deliver evidence of his fitness to drive. He submits that the decision so interfered with his dignity as to amount to a breach of his right to liberty under the Charter of Rights. He also submits that as a matter of statutory construction, the Minister can act only on the advice of a prescribed person i.e., a health professional, before deciding a license holder is unfit.
[14] None of these points are compelling. Driving is a privilege not a right. Horsefield v. Ontario (Registrar of Motor Vehicles), 1999 2023 (ON CA). Each of us bears the statutory burden to continuously meet the requirements to drive.
[15] The statute and applicable regulation do not require the Minister to show any grounds before requiring a license holder to submit evidence of fitness. It allows, and in some cases requires, prescribed people to report fitness concerns. But nothing precludes the Minister from acting on information otherwise obtained.
[16] Neither does the decision to require a person to deliver evidence of his fitness to drive raise procedural concerns. If he provided the requisite evidence and then a licensure decision was required on contested facts, the duty of procedural fairness might impose some constraints. But I am not aware of any basis to say that one is entitled to a hearing before being required to supply evidence so as to allow the substantive fitness or licensing decision to be considered.
[17] Mr. Mitanidis proposes the Minister hold a hearing into his fitness before he is required to provide medical evidence. He is trying to read into the statute a form of precondition -like the Minster having to show reasonable grounds- before being entitled to call on a license holder to prove his fitness. There is no such requirement in the statute or the regulation.
[18] I recognize that the test for raising a serious issue is a light one. I am not deciding the merits today. But I have read the lengthy notice of application as well as the applicant’s comprehensive legal submission supporting a stay and I am hard put to find anything approaching a prima facie or arguable case on the merits.
[19] I accept that there will be no monetary compensation to Mr. Mitanidis if he has to wait several on months to have this case heard and then he succeeds (despite my preliminary view of the merits). I also accept that driving can be a symbolic manifestation of a senior person’s independence and self-worth. We have state funded transportation alternatives. So, the symbolism of driving is likely more important than the actual mobility.
[20] But having said that, Mr. Mitanidis has the ability today to end the harm from which he suffers. He can go to the doctor and obtain the medical evidence required by the Minister. If he is, in fact, unfit, he cannot complain about being deprived of his license. So, he suffers harm only if is he is fit and chooses to fight the good fight rather than just doing as he is being required to do. I understand that Mr. Mitanidis asserts that what is being asked of him is an unlawful intrusion into his rights and dignity. Others have raised concerns with, for example, having to have their pictures displayed on their drivers’ licenses. The cost of asserting such claims is not being entitled to exercise the privilege to drive. Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37.
[21] Finally, the balance of convenience is straightforward. If I do not grant the stay, Mr. Mitanidis is put to his choice of obtaining medical evidence or not driving until the matter is resolved in the fall. If I grant a stay as sought, Mr. Mitanidis will be entitled to drive without providing the evidence of fitness required by the Minister until the hearing. The risk of harm on this branch of the test is to other drivers, pedestrians, and the users of public streets who may be put at risk.
[22] The very purpose of the statutory regime is to protect the public. The Minister’s powers are exercised for that goal. The granting of the stay then undermines the statutory purpose and puts the public at risk. This far outweighs the harm to Mr. Mitanidis of choosing to obtain a doctor’s letter if he is able do so.
[23] In all, I find there is no or a most minimal issue to be tried. The applicant may suffer some incompensable harm if denied a stay; but it is harm that he can readily avoid. And the balance of convenience overwhelmingly favours the denial of stay.
[24] I therefore refuse to grant a stay of the Minister’s decisions at this time. If the applicant wishes to bring a motion on full evidentiary and legal material he may seek leave to do so at a case conference.
Schedule and Case Management Directions
[25] The following schedule applies for the hearing of this application:
a. The Minister and the LAT will provide records of the proceedings before them by the end of April. The Minister’s record shall contain communication exchanged with the police officer who reported the applicant to the Minister;
b. The applicant will deliver his factum by June 28, 2024;
c. The Minister and the LAT will deliver their factums by August 23, 2024;
[26] The following standard case management directions apply:
The parties are to follow and to seek court approval for any modifications to the foregoing schedule.
The Toronto Registrar of the Divisional Court is asked to provide the parties with a hearing date before a panel of three judges of the Divisional Court for an estimated one-half day on a date no earlier than September 1, 2024 and to advise the parties of the date as soon as practicable.
The parties will receive an invitation to upload their materials to CaseLines.
The parties are to upload their materials to CaseLines promptly after service or as soon as practicable after the CaseLines link has been provided. All materials are to be uploaded at least four weeks before the hearing date.
Materials are to be uploaded in accordance with Part III.A of the current Consolidated Practice Direction for Divisional Court Proceedings. The parties are also required to file their materials with the Court electronically and pay filing fees in accordance with the Part I.D of the Consolidated Practice Direction:
Information about CaseLines is available on the Court’s website, including Tips for Counsel and Self-represented Parties, at:
The parties are reminded of the following:
• To hyperlink the indexes to all documents uploaded to CaseLines;
• To upload any agreement on costs or their costs outlines the week before the matter is scheduled to be heard; and
• During oral argument, the court expects them to refer to materials by CaseLines page numbers, and not by reference to the page number or tabs in the record.
Additional Resources:
https://www.ontariocourts.ca/scj/files/pubs/guide-div-ct-judicial-review-EN.pdf
ontariocourts.ca/scj/files/pubs/guide-div-ct-judicial-appeals-EN.pdf
The LAT’s Role
[27] Finally, the LAT is entitled to be heard if the applicant is challenging its dismissal of his appeal. The LAT’s counsel is to be copied on all correspondence with the court or included in general correspondence among the parties.
FL Myers J.
Date: March 27, 2024