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Highways - License Suspension. Mitanidis v Ontario (Minister of Transportation)
In Mitanidis v Ontario (Minister of Transportation) (Div Court, 2024) the Divisional Court dismisses a JR stay motion against the Minister of Transportation's "suspension of his license and the decision requiring him to produce medical evidence of his fitness to drive pending the hearing of the application", here where the applicant is 83 years old.
These quotes illustrate procedures and considerations applied by the court in such a case:[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.
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[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 CanLII 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 (CanLII).
[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.
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