Wills v. Ministry of Public Safety and Solicitor General, 2024 BCHRT 264
Date Issued: September 13, 2024
File(s): CS-003421
Indexed as: Wills v. Ministry of Public Safety and Solicitor General, 2024 BCHRT 264
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Norma Wills
COMPLAINANT
AND:
His Majesty the King as represented by the Ministry of Public Safety and Solicitor General
(RoadSafetyBC)
RESPONDENT
REASONS FOR DECISION
APPLICATION TO DISMISS A COMPLAINT
Section 27(1)(c)
Tribunal Member: Emily Ohler
Counsel for the Complainant: Odette Dempsey-Caputo
Counsel for the Respondent: Joanne Kim
I INTRODUCTION
[1] The Complainant, Norma Wills, alleges that the Respondent, His Majesty the King as represented by the Ministry of Public Safety and Solicitor General (RoadSafetyBC) [Ministry], discriminated against her in the area of services on the ground of mental disability in breach of s. 8 of the BC Human Rights Code [Code]. Ms. Willis alleges the Ministry discriminated against her when it required her to complete a Driver’s Medical Examination report following an RCMP report that raised concerns about her driving fitness.
[2] The Ministry applies to dismiss the complaint under s. 27(1)(c) of theCode. It argues that Ms. Wills has no reasonable prospect of succeeding in her complaint because she experienced no adverse impact given it imposed no conditions or restrictions on her driver’s license following the medical report. Alternatively, it argues that it was justified in seeking medical information from Ms. Wills. Ms. Wills argues that being asked to provide the medical report was an adverse impact in itself. She disputes that the Ministry’s conduct was justified.
[3] For the following reasons, I allow the application and dismiss the complaint. To make this decision, I have considered all the information filed by the parties. In these reasons, I only refer to what is necessary to explain my decision. I make no findings of fact.
II BACKGROUND
[4] Drivers of motor vehicles in British Columbia are regulated by the Motor Vehicle Act, RSBC 1996 c. 318 [MVA]. The Ministry has the authority under s. 29 of the MVA to ensure that drivers’ license holders in the province are able and fit to drive safely. Section 29 provides that:
The superintendent may require a person to whom a driver’s licence has been issued to attend at a time and place for one or both of the following purposes:
(a) to submit to one or more of the following tests, to be conducted by the Insurance Corporation of British Columbia: a knowledge test; a road test; a road signs and signals test;
(b) to be otherwise examined as to the person’s fitness and ability to drive and operate motor vehicles of the category for which the person is licensed.
[5] In administering this authority, the Ministry houses a Driver Medical Fitness Program [Program] to manage situations involving people who may have medical conditions impacting their ability to safely drive. Staff of this Program rely, among other things, on Driver’s Medical Examination Reports [Medical Report], which are completed by an individual driver’s doctor.
[6] Anyone with knowledge of a driver’s driving ability can submit a report to the Program, which must include objective supporting reasons for any concerns raised about the driver’s ability to drive safely. The Ministry explains that the Program “gives serious consideration to a full report from a reliable source such as a medical professional or police, recognizing that they have the necessary expertise to identify any safety concerns …” In this respect, the program gives credible reports from a reliable source of this kind priority for referral to an adjudicator or nurse case manager. That person will review the report to determine whether further medical information may be needed. If so, for example where the report involves a person with a known or possible medical condition that may impair driving, the Program contacts them directly to request a Medical Report.
[7] The Program conducts individualized assessments based on each person’s personal driving fitness and ability, using what it calls a functional approach to driver fitness. This means focusing on functional ability rather than diagnosis. An assessment of fitness may result in the determination that a person is medically fit to drive; requires periodic medical reporting; requires conditions or restrictions placed on their license; or is unfit to drive. The Program seeks to give drivers the maximum licensing privileges appropriate to their particular circumstances, taking into account their medical condition, its impact on necessary driving functions, and a driver’s ability to compensate for any impairment related to the condition.
[8] On November 5, 2012, the program received a police report from the RCMP outlining concerns about the complainant’s driving fitness [Police Report]. The Police Report said that the RCMP had previous encounters with the complainant who had various police files related to mental health issues. The Police Report also indicated that the complainant had been the subject of a report of possible impaired driving. The RCMP requested a review of the complainant’s medical fitness to drive.
[9] On December 20, 2012, the Program mailed the complainant a letter advising her of the Police Report, informing her that more information was needed, and giving her notice that a Medical Report form would be sent to her. The Program sent the Medical Report to the complainant on December 27, 2012 to take to her doctor to complete.
[10] On April 10, 2013, the complainant returned the completed Medical Report, which indicated that the complainant was in a stable condition physically and mentally but may require medical follow-up in the future. A Program adjudicator reviewed the Medical Report on October 10, 2013, and determined that the complainant was fit to drive. No restrictions of conditions were placed upon the complainant. A follow-up Medical Report was scheduled as per the opinion of the complainant’s doctor.
III DECISION
[11] As part of the Tribunal’s gate-keeping function, s. 27(1)(c) allows the Tribunal to dismiss complaints that do not warrant the time and expense of a hearing.
[12] Under s. 27(1)(c), the Tribunal reviews all of the evidence to decide whether “there is no reasonable prospect that findings of fact that would support the complaint could be made on a balance of probabilities after a full hearing of the evidence”: Berezoutskaia v. British Columbia (Human Rights Tribunal), 2006 BCCA 95at para. 22, leave to appeal ref’d [2006] SCCA No. 171. The Tribunal decides this based on the materials filed by the parties, and not on speculation about what evidence may be filed at the hearing: University of British Columbia v. Chan, 2013 BCSC 942 at para. 77. In doing so, the Tribunal does not make findings of fact.
[13] In a dismissal application, a complainant does not have to prove their complaint or show the Tribunal all the evidence they may introduce at a hearing. They only have to show that the evidence takes their complaint out of the “realm of conjecture”: Workers’ Compensation Appeal Tribunal v. Hill,2011 BCCA 49 at para. 27.
[14] To prove her complaint at a hearing, Ms. Wills would have to prove she has a mental disability, was adversely impacted in respect of the service the Ministry provides to the public, and that her mental disability was a factor in the adverse impact: Moore v. British Columbia (Education), 2012 SCC 61 at para. 33. If she did that, the burden would shift to the Ministry to justify the impact as a bona fide reasonable justification under the Code. If the impact is justified, there is no discrimination.
[15] There is no dispute as to whether Ms. Wills has a mental disability or whether this was a factor in the Ministry’s request that Ms. Wills have her doctor complete a Medical Report. There is similarly no dispute that this request arose in response to the Police Report. At issue first, is whether Ms. Willis has no reasonable likelihood of proving the Ministry’s request for the Medical Report – and concomitant requirement that Ms. Wills have it completed and return it -constituted an adverse impact.
[16] Ms. Wills argues that it did. She notes that the Police Report did not relate to her driving at all, aside from referencing the one issue of possible impaired driving. Rather, it referenced the fact that she has a mental disability and had contact related to same with the RCMP in the past, but nothing within those facts related to her fitness to drive. She asserts that the suggestion that she is more likely than the average person to drive dangerously because of her mental disability was unfounded and based on stereotypical assumptions and beliefs. The Ministry argues that Ms. Wills experienced no adverse impact, as her license was not impacted by any conditions or restrictions.
[17] Ms. Wills’ having a mental health-related condition gave rise to her being treated differently from other drivers, and being made to take additional, burdensome steps. She had to seek additional services from her medical practitioner and submit personal information to the Ministry. I am satisfied that Ms. Wills has brought her complaint beyond the realm of conjecture, and that being asked to provide medical information about fitness to drive as a result of the Police Report could constitute an adverse impact.
[18] I turn now to whether it is reasonably certain that the Ministry would establish that it was justified in its conduct.
[19] If the Ministry persuades me that it is reasonably certain to establish a bona fide and reasonable justification for its treatment of Ms. Wills in requesting a Medical Report, the Tribunal can dismiss the complaint. To establish a bona fide and reasonable justification, the Ministry must demonstrate that its actions were based on a standard (which may mean a rule, requirement, policy, procedure, practice, norm, etc.), and:
1) it adopted the standard for a purpose rationally connected to the function it performs;
2) it adopted the standard in an honest and good faith belief that the standard was necessary to the fulfillment of that purpose; and
3) the standard is reasonably necessary to the accomplishment of that purpose.
The third element encompasses the Ministry’s duty to accommodate the complainant to the point of undue hardship: British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1999] 3 SCR 868 [Grismer] at para. 20.
[20] There is no dispute about the first two steps in Grismer . At issue is whether the Ministry is reasonably certain to prove it could not have taken other steps in respect of Ms. Wills in the circumstances without incurring undue hardship.
[21] The Police Report submitted to the Program said that the RCMP had received a report from a member of the public who saw Ms. Wills in a shop speaking to herself, swearing at people, telling people to stop staring at her, and had to be assisted to find the exit. The member of the public said that Ms. Wills appeared unsteady on her feet and seemed to have an odour of alcohol on her breath. The Police Report also noted that in the past, the RCMP had some mental-health related interactions with Ms. Wills. In this context, the RCMP requested a review of Ms. Wills’ medical fitness to drive.
[22] The Ministry administers the standard through the Program, which takes a functional, individualized approach to assessing each driver as set out earlier in this decision. The Ministry argues that in this case, when it received the Police Report, it had a statutory obligation to investigate the concerns outlined.
[23] The Ministry says that it was reasonable to take the question to Ms. Wills herself and it had a statutory obligation to do so. When the Program received the Police Report, it was referred to and reviewed by a Nurse Case Manager. The Nurse Case Manager determined that personalized medical information was needed about whether Ms. Wills had a medical condition impacting her ability to drive. The Nurse Case Manager reached this conclusion through an individualized assessment of the factors pertinent to the safe operation of a motor vehicle and the information received about the possibility of Ms. Wills having a relevant medical condition that may impact those factors. The Program wrote to Ms. Wills to advise it would be seeking medical information, sent her the report, and Ms. Wills returned the completed Medical Report from her doctor, which indicated there were no concerns related to her driving fitness but that she may require some medical follow-up in future. Based on this, the Ministry determined that Ms. Wills could continue to drive with no conditions or restrictions.
[24] Ms. Wills asserts that the suggestion that she is more likely than the average person to drive dangerously because of her mental disability was unfounded and based on stereotypical assumptions and beliefs. Ms. Wills argues that while the RCMP may have been a credible source of the Police Report, “their reasons for reporting the Complainant to RoadSafetyBC were unjustified and ultimately based on prejudice.” She submits that the Ministry was aware or ought to have been aware that there was no connection between the RCMP’s past interactions with her and her ability to drive. Alternatively, she argues that the Ministry should have followed up with the RCMP rather than simply trusting them.
[25] In the circumstances, the Ministry has persuaded me that it is reasonably certain to prove its conduct was justified. I am not satisfied that at a hearing, the Tribunal would find that it would have been reasonable, or more reasonable, for the Ministry to rely on the RCMP for information about whether Ms. Will’s has a medical condition that impaired her driving ability. Rather, the Tribunal is reasonably certain to find that it was appropriate for the Ministry to go to the person about whom the Police Report was submitted in order to obtain the information required. Insofar as Ms. Wills submits that the Ministry should not have acted on the Police Report because the Police Report itself was discriminatory, it is unclear how the Ministry was to determine that the Police Report was discriminatory without seeking information from Ms. Wills herself. It took the step of seeking information from Ms. Wills in response to the Police Report, and determined that there was no medical basis on which to impose conditions or restrictions on her driving license. While Ms. Wills may believe that the RCMP’s action in submitting the Police Report to the Ministry was discriminatory, the Ministry cannot be held responsible, in these circumstances, for taking what the Tribunal is reasonably certain to find were reasonable steps within its specific legislative mandate to respond to it. It seems to me that Ms. Wills complaints of the Police Report itself being discriminatory is a complaint that rests with the RCMP, not the Ministry.
[26] I am satisfied it is reasonably certain that, at a hearing, the Ministry would establish that it was justified in its conduct in this case.
IV CONCLUSION
[27] I allow the Ministry’s application and dismiss the complaint under s. 27(1)(c) of the Code. The complaint is dismissed in its entirety.
Emily Ohler
Tribunal Chair