Ontario not violating elderly drivers’ Charter rights if requiring testing every two years: Court

The Supreme Court of Canada announced Thursday it has denied an 86-year-old Ontario man’s leave to appeal a finding that the province is not violating the Charter of Rights if it requires drivers 80 years and older to get tested every two years.

Therefore, a 2014 ruling from Ontario’s Divisional Court stands.

Court records indicate that Kenneth MacLennan argued that the Ontario regulation providing for testing every two years for people 80 and over contravenes section 15 of the Canadian Charter of Rights and Freedoms, which prohibits discrimination based on age, as well as on race, national origin, religion, gender and disability.

MacLennan had sought judicial review of a 2013 decision by the Ontario Human Rights Tribunal. He asked the Divisional Court for a declaration that part of Ontario Regulation 340/94 – a driver licensing law – is unconstitutional. MacLennan was 84 when the OHRT released its decision in 2013.

Section 16 of Ontario Regulation 340/94 stipulates that Ontario’s transportation minister “may require” that people with Class G or M license who reach the age of 80 “complete successfully the applicable examinations” stipulated in section 15 of that regulation every two years. Sections 14 and 15 refer to medical, written and road tests.

Once Ontario drivers turn 80, they must attend a renewal session which entails a vision test, driver record review and educational session, according to the Ministry of Transportation website. Elderly drivers are also required to take a road test “if necessary.” Prior to April, 2014, drivers aged 80 and over had to take a knowledge test every two years. Since then they have been required to complete “non computerized screening assignments.”

That program “is not based on prejudice or stereotype,” wrote the Divisional Court, in a ruling released June 12, 2014, in explaining why the Ontario regulation does not contravene the Charter.

In 2013, the Human Rights Tribunal of Ontario ruled it had no jurisdiction to rule on MacLennan’s application. So his application to Divisional Court was treated as an “original application.”

Ontario’s licensing regulation for drivers 80 and over “responds to recognized concerns with respect to the problematic aspects of aging,” wrote the Ontario Divisional Court.

MacLennan was denied leave to appeal to the Court of Appeal for Ontario. In March, 2015 he applied for leave to Canada’s highest court. On July 9, the Supreme Court of Canada announced it dismissed MacLennan’s leave application.

Ontario’s senior driver’s licence renewal program does not automatically deprive the mature driver of his or her privilege,” Ontario’s Divisional Court found in 2014. “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.”

Ontario’s driver regulation is not “based per se on age,” the Divisional Court added. “It is more a program sensitive to the potential problems of aging in the context of maintaining a regime of road safety.”

The Divisional Court quoted from case law, including a ruling from the Supreme Court of Canada – released Dec. 16, 1999 – in favour of the estate of Terry Grismer, who suffered from a condition that eliminated most of his left-side peripheral vision in both eyes. The British Columbia Superintendent of Motor Vehicles had cancelled Grismer’s licence. The British Columbia Council of Human Rights ruled in Grismer’s favour in 1994, the Superintendent of Motor Vehicles appealed and the Supreme Court of Canada decision is cited as British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights).

Medical consultants with the B.C. government’s motor vehicle branch “balanced the need for people to be licensed with the need for reasonable highway safety,” Madam Justice Beverly McLachlin (now Canada’s chief justice) wrote in 1999.

“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,” Justice McLachlin added. “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.”

In B.C. (Superintendent of Motor Vehicles) v. B.C. (Council of Human Rights), the Supreme Court of Canada found, based on case law, that if a plaintiff in a human rights case establishes that a standard is discriminatory (in the context of B.C.’s Human Rights Code) then the defendant must prove, on a balance of probabilities, that the standard has a “bona fide and reasonable justification.”