Decision Date: March 7, 2008
Panel: Gabriella Lang
Keywords: Wildlife Act – s. 19; Permit Regulation – s. 3; Motor Vehicle Prohibition Regulation – s. 2, 3; motor vehicle closed areas; motor vehicle hunting closed areas; physical disability; discrimination; accommodation; duty to give reasons; costs
In May 2007, Mr. Chanski applied for a permit to exempt him from the prohibition against operating a motor vehicle in areas closed to motor vehicles, as set out in the Motor Vehicle Prohibition Regulation, which designates hunting areas in which motor vehicles may not be operated. The application was based upon his physical disability. The Regional Manager, Environmental Stewardship (the “Regional Manager”), issued a permit granting Mr. Chanski access to four of the thirty-six closed areas Mr. Chanski had requested access to. Mr. Chanski appealed the Regional Manager’s decision on the basis that the Regional Manager failed to accommodate him as a disabled hunter by not granting all of the exemptions he had requested. Mr. Chanski also applied for costs.
The Board confirmed that regulatory bodies have a duty, under human rights legislation and judicial decisions, to accommodate persons with disabilities, unless they can establish that accommodation would result in undue hardship. In the context of disabled hunters seeking to use a motor vehicle to hunt in areas that have been closed to motor vehicles, this involves balancing the rights of the disabled hunter against the reasons for the closure. Closures may be motivated by the goals of reducing hunting pressure on wildlife, or protecting the environment from impacts associated with motor vehicle use, for example.
Turning to the case at hand, the Board found that Mr. Chanski’s application was not sufficiently specific about the roads he wished to be granted vehicle access to, the species to be hunted and the timing of hunts for the Regional Manager to assess the extent to which the requested closed areas would have been impacted by motor vehicle access. However, the Board also found that the Regional Manager’s decision to grant access to four of the thirty-six closed areas requested, without providing reasons for that decision, did not amount to reasonable accommodation. The Regional Manager should have assessed each of the closed areas identified in Mr. Chanski’s application and should have determined on a case-by-case basis whether accommodating Mr. Chanski would have resulted in undue hardship in each area. The Regional Manager should also have provided reasons when denying access to a particular area.
Turning to the question of remedy, the Board determined that, although the Board had the jurisdiction to make a new decision in relation to the permit, it was unable to do so based on the information that was available. Neither party had provided sufficient information for the Board to make a new decision on the thirty-two remaining closed areas. Therefore, the matter was sent back to the Regional Manager with directions to consult with Mr. Chanski about the specific hunting locations, species and hunting times, and to issue a new permit within two weeks of Mr. Chanski providing the required information.
Accordingly, the appeal was allowed. The application for costs was denied on the basis that there were no special circumstances in this case to warrant an order for costs.