Petition for judicial review from decision of Human Rights Tribunal dismissing complaint because it was not filed in time.

Administrative law – Decisions of administrative tribunals – Human Rights Tribunal – Human Rights – Discrimination – Disability – Motor vehicles – Suspension of driver’s licence – Judicial review – Compliance with legislation – Limitation of actions – Standard of review – Patent unreasonableness

Lewis v. British Columbia (Ministry of Public Safety), [2013] B.C.J. No. 2390, 2013 BCSC 1980, British Columbia Supreme Court, October 31, 2013, E.M. Myers J.

In April 2009, the Superintendent of Motor Vehicles, on the basis of a police report, required the petitioner to complete a DriveABLE assessment. The petitioner took and failed the computerized test in May 2009. In June 2009, her driver’s license was cancelled. In November 2009, the petitioner took and failed the computerized test again. Her driver’s license remained cancelled. The petitioner then took remedial driving instruction on her own initiative. In July 2010, the petitioner wrote to the Superintendent complaining of unfair treatment in the DriveABLE process because of her age and unfamiliarity with computers. In September 2010, the Superintendent responded that the DriveABLE assessment was determinative of her medical fitness to drive.

In February 2011, the petitioner filed a human rights claims with the Human Rights Tribunal alleging discrimination on the basis of age, physical disability, and mental disability. Section 22 of the Human Rights Code, R.S.B.C. 1996, c. 45, requires a complaint to be filed within six months of the alleged contravention or, if a continuing contravention is alleged, within six months of the last alleged instance of the contravention. In response, the Superintendent applied to dismiss the complaint on the basis it was filed out of time. The Tribunal dismissed the complaint.

The petitioner applied for judicial review to the British Columbia Supreme Court. After the petition was filed, the DriveABLE program was changed to permit an on-road test. The petitioner took an on-road test and failed. Her license was not re-instated. The court held the petition was not completely moot because, even though the impugned policy changed, the petitioner could still maintain a claim for injury to dignity, feelings, and self-respect under the Human Rights Code.

The court found the Tribunal’s determination as to whether the complaint should be dismissed for late-filing is a discretionary decision. The standard of review is patent unreasonableness.  Whether the complaint was characterized as the refusal to grant her license or the Superintendent’s refusal to accept anything other than the DriveABLE test to determine medical fitness to drive, the discrimination was the same. Therefore, the only actions that were within the six month limitation period, the Superintendent’s letter in September 2010, conveyed no new information. It reiterated the Superintendent’s position. A complainant cannot extend the time for filing by being persistent and continuing to ask for reconsideration of a prior decision or policy. A continuing contravention requires a succession or repetition of separate acts of discrimination of the same character.

The court held the Tribunal’s decision was not patently unreasonable. The petition was dismissed.

This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at jmorris@harpergrey.com or review his biography at http://www.harpergrey.com.

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