Licence Appeal Tribunal
FILE: 10052/MED
CASE NAME: 10052 v. Registrar of Motor Vehicles
Appeal under section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a Decision of the Registrar of Motor Vehicles pursuant to section 47(1) of that Act - to Suspend a Licence
10052 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kevin Flynn, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Kyle M. Biel, Agent
Heard by teleconference: March 16, 2016
REASONS FOR DECISION AND ORDER
This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Appellant respecting a decision of the Registrar of Motor Vehicles (the “Registrar”) pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
OVERVIEW
The Appellant, in her reasons for appeal, claims that because she was driving defensively, not erratically, and because she was wearing a face mask due to the smell of gas fumes in her rental vehicle, she was arrested by police on the sidewalk. Following an altercation with police outside her vehicle, in which she refused to give proof of identification, she was handcuffed and taken to the Emergency Room (“E.R.”) under the Mental Health Act (“MHA”), and she was admitted as an involuntary patient under the MHA Form 3.
The Registrar was notified by a physician pursuant to section 203 of the Act with a diagnosis of “Mental or Emotional Illness”.
Subsequently, her driving privilege was suspended on October 8, 2015, under section 47(1) of the Act. The reason given was: “Evidence of medical condition that would affect your ability to safely operate a motor vehicle”.
After considering the evidence and submissions made by the parties, the Tribunal finds that the Appellant does not suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with her ability to drive a motor vehicle of the applicable class safely.
Therefore, the Tribunal sets aside the decision of the Registrar to suspend the Appellant’s driver’s licence.
FACTS
Evidence of the Registrar
A citizen, J.F., in an unsigned statement “will say” to police on October 7, 2015, stated that she was driving on a city street and observed that she was being “tailgated” by an erratic driver who was following very closely to her car and was occasionally swerving aggressively. Upon approaching a cross street, she (the Appellant) overtook another car “making a left turn, overtook me by driving in the opposite lane, and overtook another car making a left turn as she turned left. She then did a 3 point turn prior to reaching a stop light after which she made several attempts to park her car”.
She also observed the Appellant exiting her car “wearing a gas mask” and “wearing a hoodie”. She later observed the police talking to the Appellant.
Police notes are summarized as follows:
At 08:47 the above complaint was received by police who on arrival at the scene observed the Appellant standing on the sidewalk. She refused to speak with police and was described as “confrontational” and “refused to identify herself”. Police advised her that they had received a complaint about her driving and they advised her that they were placing her under arrest “for failing to identify herself”. Police had difficulty applying handcuffs and she was “taken to the ground”.
At 09:15 she was taken to hospital under “a section 17 MHA apprehension” and she was admitted. Police interviewed Dr. M. at the E.R. and informed him that the Appellant was “driving erratically, tailgating, etc. with a gas mask”. She refused to identify herself and was combative & aggressive.
Police located the driver’s licence and confirmed that she was driving a rental car.
The Tribunal notes that the police arrested the Appellant for “Fail to identify” under the HTA, s. 39.1(6) and also charged her with “fail to notify change of address” under O. Reg. 340/94, s. 33(1) of the Act.
The charges of “Failing to notify change of address” and “Fail to identify self” were withdrawn by the prosecutor.
Upon admission to the E.R., a Certificate of Involuntary Admission (Form 3) was completed by Dr. N. on the following grounds:
Threatened or attempted or are threatening to cause bodily harm to yourself. And that you are suffering from a mental disorder of a nature or quality that likely will result in serious bodily harm to yourself.
That physician has certified that he has reasonable cause to believe that you have previously received treatment for mental disorder of an ongoing or recurring nature that, when not treated, is of a nature or quality that likely will result in substantial mental or physical deterioration of you.
Given your history of mental disorder and current mental or physical condition, you are likely to suffer substantial mental or physical deterioration.
A Medical Condition Report was completed by Dr. N.S., pursuant to section 203 of the Act, stating the condition as:
Mental or Emotional Illness-Unstable; being admitted for Paranoia, “Psychosis, Unknown duration of symptoms.
The Registrar wrote to the Appellant on October 8, 2015, informing her that “The Ministry has received a report indicating that you have a condition that affects your ability to drive safely”. The reported condition is cited as “Psychiatric Condition”.
The Appellant was requested to take the letter of suspension to her physician or nurse practitioner and to have a Mental Health Assessment completed and forwarded to the Medical Review Section.
In hospital, the Appellant was admitted to Psychiatry where she refused to allow nurses to do vital signs or blood work, but she was ambulatory, interacting with patients and not appearing to have any significant physical symptoms.
While under care of a psychiatrist, Dr. N.S., she maintained that she had been falsely accused by police of driving dangerously and that she had the right to refuse to show her driver’s licence. She claimed that the police had used excessive force causing bruises to her elbows. She claimed that she was wearing a painting mask due to “gas” fumes in the rental car she was driving. She also noted that three people had told her that there was a smell of gas in her rental car.
The Appellant did inform the psychiatrist that she had been accused by her mother of causing a fire in the home they shared about two weeks previously.
Dr. N.S. spoke to a long-time friend of the Appellant, Ms. J., who lives in Florida. Ms. J. advised Dr. N.S. that she and the Appellant were close friends who kept in touch regularly and that she had no concerns for any bizarre or delusional thoughts and that the Appellant is not psychotic or paranoid. There has been no evidence of unsafe behaviour or threats of violence. She believed that the police had been quite rash and abrupt in making the decision to bring the Appellant to the hospital. Dr. N.S. believed that this information was “quite consistent with the story that the Appellant had given that she had been on the road with an erratic driver”.
Dr. N.S. discussed the case with the nurses in psychiatry who found her to be calm, cooperative, not violent, nor had she done anything to harm herself. She was reading a book and attending breakfast, lunch and dinner.
On this basis, the psychiatrist decided to discharge the Appellant to the care of her family physician.
The Appellant wished to return to her home and declined to remain in hospital as a voluntary patient. It is noted that the Appellant does not have a family physician and is a believer in naturopathic medicine.
A second psychiatrist, Dr. F.S., who attended the Appellant on October 11, 2015, noted that the police did not stop her while driving and had no direct evidence other than the information provided by another driver. Dr. F.S. did not find her to be delusional and noted that she preferred to use naturopathic methods when she refused to allow the nurse to take her vitals and to do blood work. Dr. F.S. found the Appellant’s thoughts to be logical and organized and showed no evidence of responding to internal stimuli.
She had previously attended the E.R. for dust in her eyes. Dr. F.S. attempted to contact the Appellant’s mother for corroboration but failed to get an answer.
The discharge diagnosis was “Query delusional disorder”.
Dr. N.S. wrote on her discharge status:
She was made a voluntary patient on October 13 as she was no longer certifiable under the Mental Health Act. There were no safety concerns voiced by the nursing staff. In all my meetings during the 6 day admission on our unit did not notice any agitation. She voiced no suicidal or homicidal thoughts. At no time did she appear to be responding to internal stimuli. She maintained that her beliefs regarding an erratic driver on the road were indeed true. I did obtain collaboration with the consent of (Appellant) from a friend of hers who informed me that (Appellant) has no previous psychiatry history and at no time has she presented to her with any safety concerns.
She refused all medications during her time on the unit. She was calm and cooperative.
When she was made a voluntary patient, she chose to sign herself out of the unit “AMA” (Against Medical Advice).
Evidence of the Appellant
In her reasons for the appeal, the Appellant stated that she has an excellent driving history over a 30 year period.
She stated she was driving defensively in order to avoid an accident with another female driver who did not yield to oncoming traffic and cut in front of her car. The police did not observe her driving and chose to believe the other driver. The police arrived after she (the Appellant) had exited the car.
She maintains that she is not obliged to give identification when not in the car and was standing on the sidewalk, and noted that she is innocent of wrongdoing.
She states that the E.R. doctor, Dr. N.S., did not speak to her and that he acted on incorrect information provided by police.
She stated that three people had told her they smelled gas in the car which was a rental and which had the driver’s side mirror attached with tape. She decided to protect herself by wearing a painter’s mask purchased at Home Depot. The description of the mask given to the Tribunal was not that of a military or fireman’s type of gas mask, but it had a filter on each side.
ISSUES
Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?
In particular:
Does the Appellant suffer from a mental, emotional, nervous or physical disability likely to significantly interfere with her ability to drive a motor vehicle safely?
LAW
O. Reg. 340/94, section 14 states:
(1) An applicant for or a holder of a driver’s licence must not,
(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely; or
(b) be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.
(2) In determining whether an applicant for or a holder of a driver’s licence of any class meets the qualifications described in subsection (1), the Minister,
(a) may take into consideration the relevant medical standards for applicants or holders of that class of driver’s licence set out in the CCMTA Medical Standards for Drivers; and
(b) may require the applicant or holder to provide evidence satisfactory to the Minister that he or she is able to drive a motor vehicle of the applicable class safely, including,
(i) any reports of examinations under section 15, and
(ii) any additional medical information.
Section 47(1) of the Act gives the Registrar the power to suspend or cancel a driver’s licence on the ground(s) set out in section 14 (1) of the Regulation set out above.
Section 50 of the Act states:
- (1) Every person aggrieved by a decision of the Minister made under subsection 32(5) for which there is a right of appeal pursuant to a regulation made under clause 32 (14) (n) or a decision of the Registrar under section 17 or 47 may appeal the decision to the Tribunal.
(2) The Tribunal may confirm, modify or set aside the decision of the Minister or the Registrar.
APPLICATION OF THE LAW TO FACTS
The Registrar’s Agent, Mr. Biel, in submissions, asked that the Tribunal confirm the suspension on the following grounds:
The Medical Condition Report completed by the E.R. physician, Dr. N.S., stating that the Appellant suffered from a mental or emotional illness-unstable.
The Registrar was authorized to issue a suspension of the Appellant’s driving privilege under section 47(1) (g) of the Act, for “any other sufficient reason not referred to in clause (d), (e) or (f)”.
The Notice to Patient under subsection 38(1) of the MHA states that the patient is “suffering from mental disorder or quality that likely will result in serious physical impairment to you”.
The Registrar in the letter of October 8, 2015 informed the Appellant that her licence was suspended under section 47(1) of the Act due to a Psychiatric Condition.
The hospital records of two psychiatrists, Dr. N.S. and Dr. F.S., contain references to erratic driving and refusal to cooperate with police or nursing and psychiatric staff.
The Hospital Discharge Summary confirmed that the Appellant discharged herself against medical advice.
O. Reg. 340/94, section 14 that states:
(1) An applicant for or a holder of a driver’s licence must not,
(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely;
- Canadian Council of Motor Transport Administrators (CCMTA), section 14.6.1, refers to Psychiatric Disorders.
All drivers are eligible for a licence if
the condition is stable
the driver has sufficient insight to stop driving if condition becomes acute
the functional abilities necessary for driving are not impaired
a treating physician supports a return to driving, for drivers who have stopped driving due to a psychiatric condition, and
the conditions for maintaining a licence are met.
The Appellant, in her submissions, relies on the following:
Thirty years of safe driving and stability without accident.
The police officers were very aggressive and caused bruising to her arms when they forced her to the ground to apply handcuffs.
Police had no reasonable grounds for arresting her.
Evidence of the police was not credible when they told the E.R. physician that she was driving erratically when they should have been looking at the other driver.
Several references were made in the hospital record by psychiatrists that she was calm, stable and collected.
At the submissions stage of the hearing, the Appellant also requested that she be able to make a written submission. The Tribunal advised her that while written submissions are sometimes requested by the Tribunal, in this case, the Tribunal only required oral submissions from the parties.
The Tribunal has carefully considered the evidence presented by the Registrar and the Appellant, which includes copies of the hospital chart, police officers’ notes and various documents obtained by the Appellant under a Freedom of Information and Protection of Privacy Act (“FOI”) request. The large volume of documentation submitted provides some background to the Appellant’s belief in naturopathic medicine.
It would appear that the circumstances that brought police to the scene are somewhat vague with only an unsigned, unsworn statement by the only witness to the Appellant’s driving.
The Tribunal finds that when police arrived at the scene, after the Appellant stopped her car and was standing on the sidewalk, they informed her that they were responding to a citizen’s complaint of erratic driving by a woman driver who was wearing a “gas mask” and a “hoodie”.
These circumstances may have caused some alarm for the police. The Tribunal does note, however, that many citizens may be seen in other cities wearing paper masks in public places to protect themselves from contracting infection. In this case, too much attention was paid to the mask and insufficient attention to a citizen standing on the sidewalk who refused to give identification based on her understanding of the law.
The situation escalated with the arrest of the Appellant for “Failing to provide identification”. The arrest took place against resistance causing the Appellant to be pinned against the ground, and the evidence suggests that at the E.R. there was a rush to judgment and resort to the Mental Health Act.
The Tribunal finds that there is insufficient medical evidence of either psychosis or personality disorder that would justify a suspension of the Appellant’s driving privilege.
The attending psychiatrists did not make a diagnosis of a mental condition. The discharge record of “query delusional disorder” does not constitute confirmation of a psychiatric diagnosis. The psychiatric status on discharge states that there were no safety concerns either by the nursing staff or the psychiatrists who record several interventions with the Appellant during the stay in hospital.
Weighing the evidence on a balance of probabilities, the Tribunal finds that the Appellant is not suffering from a condition which is likely to significantly interfere with her ability to operate a motor vehicle safely.
DECISION
Upon the application by the Appellant to appeal the Registrar’s decision, effective October 8, 2015, to suspend her driver’s licence pursuant to section 47(1) of the Act, and having considered the evidence filed with the Tribunal, and the submissions of the Registrar and of the Appellant;
IT IS THE DECISION OF THE TRIBUNAL pursuant to the authority vested in it under section 50(2) of the Act that the decision of the Registrar be set aside.
LICENCE APPEAL TRIBUNAL
Kevin Flynn, M.D., Member
Released: April 7, 2016