Terry Grismer Wins

British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights)  (1999), 36 C.H.R.R. D/129 (S.C.C.)

The Supreme Court of Canada ruled that the B.C. Superintendent of Motor Vehicles discriminated against Terry Grismer by refusing him a driver’s licence because he had homonymous hemianopia (H. H.) which eliminated most of his left side peripheral vision in both eyes.

Terry Grismer had a stroke in 1984 at age 40. As a result of the stroke, he suffered H.H. Persons with H.H. always have less than 120 degrees of peripheral vision and no person with H.H. is issued a driver’s licence in B.C. The Motor Vehicles Branch cancelled Grismer’s licence.

Grismer claimed that through the use of glasses with prisms, extra mirrors on his truck, and regular movement of his head, he could compensate for his disability and drive safely. He alleged that he was discriminated because he was not given an individual assessment. Instead, the simple fact that he had H.H. barred from having a driver’s licence.

Applying the new unified test that was fashioned in British Columbia (Public Service Employee Relations Comm.) v. B.C.G.E.U (1999), 35 C.H.R.R. D/257 ("Meiorin"), McLachlin J., writing for a unanimous Court, ruled that the Superintendent of Motor Vehicles was required to show that the impugned standard was adopted for a purpose rationally connected to the regulation of driving; that the standard was adopted in good faith; and that the standard was reasonably necessary because the Superintendent could not accommodate persons such as Mr. Grismer without undue hardship, whether that hardship took the form of impossibility, serious risk or excessive cost.

The Superintendent’s goal was to maintain reasonable highway safety. The evidence showed that the Superintendent had not set a goal of absolute safety since he licenced many people with various forms of disability. Such a goal would not be feasible in any case, since no one is a perfect driver.

The central issue was whether the "no H.H." standard was necessary to meet the goal of reasonable highway safety. There were two ways that the Superintendent could show that a standard like this one, that permits no accommodation, is reasonably necessary. First, he could show that no one with H.H. could ever meet the desired objective of reasonable highway safety. Alternatively, he could show that accommodation is unreasonable because testing individuals to determine whether they can drive safely despite their disabilities is impossible short of undue hardship.

The Court found that the Superintendent had not demonstrated that no person with H.H. could drive safely. In fact, there was evidence to show that some people with H.H. may be able to drive safely and that Terry Grismer may have been among them. The Superintendent also failed to show that individual assessment was impossible without incurring undue hardship. Some forms of testing were available. The Superintendent alluded to the cost associated with assessing people with H.H., but offered no precise figures. The Court responded that while in some circumstances excessive cost may justify a refusal, it is too easy to cite increased cost as a reason for refusing disabled persons equal treatment. Impressionistic evidence of increased expense will not generally suffice.

The Court concluded that the Superintendent erred in this case because he abandoned his reasonable approach to licensing and adopted an absolute standard, which was not supported by convincing evidence. The Superintendent was obliged to give Mr. Grismer the opportunity to prove whether or not he could drive safely, by assessing him individually. His failure to do so was a breach of the B.C. Human Rights Act.

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