Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 10567/MED
CASE NAME: 10567 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
Appellant
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 Biel, Agent
Heard in Toronto: February 22, 2017
DECISION AND REASONS
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”) to suspend the Appellant’s licence. The Appellant’s licence was suspended after the Registrar received a report from a physician that the Appellant was suffering from a condition that may make it dangerous for the Appellant to drive.
For the reasons below, the Tribunal sets aside the decision of the Registrar to suspend the Appellant’s licence.
ADMINISTRATIVE MATTERS
The Appeal was heard initially by teleconference on January 4, 2017 and adjourned in order to allow the Appellant time to have the Mental Health Assessment Form completed.
Mr. Biel confirmed that a copy of the Respondent’s disclosure had been delivered to the Appellant.
Mr. Biel noted at the hearing, and the Appellant agreed, that the Medical Condition Report was incorrectly dated May 10, 2014. It was actually sent April 10, 2014, which is the date that it was faxed to the Ministry of Transportation.
Exhibit #1 is the Letter of Suspension dated April 14, 2014.
Exhibit #2 is the Notice of Appeal received on December 8, 2016.
Exhibit #3 is a copy of the video (undated) submitted by the Appellant on February 22, 2017.
FACTS
Evidence for the Respondent
On April 10, 2014, Dr. L., a psychiatrist at a psychiatric hospital, completed a Medical Condition Report based on an examination on the same date. The report was completed in compliance with section 203 of the Act, which requires all medical practitioners to report to the Registrar any person older than sixteen who is suffering from a condition which may make it dangerous for the person to drive.
The condition reported was: Mental or Emotional Illness: Unstable.
The Report contained the following optional information:
Patient appears to be manic or hypomanic, but is not agreeable to formal psychiatric assessment.
There was no indication that the patient was aware of the report.
The Registrar wrote to the Appellant on April 14, 2014, stating that a report of a psychiatric condition had been received and considering all relevant facts available, it has been decided to suspend her driving privilege under section 47(1) of the Act, effective April 24, 2014.
The Appellant was requested to take the Letter of Suspension to her treating physician, specialist or nurse practitioner when her condition improved and have the following information sent to the Medical Review Section:
- The enclosed Mental Health Assessment form completed in full and all questions answered.
On June 13, 2014, the Appellant wrote to the Ministry:
Please find the business card of my doctor, Dr. S.
I have just visited her medical practice and she told me to write you this note.
She confirmed to me that I am perfectly healthy and she does not understand at all how can such a letter have been sent to me. Please contact her at (phone number provided) if you need more information.
Thank you very much. Please make the correction as soon as possible. I need my vehicle for work.
On July 4, 2014, the Appellant wrote to the Registrar. Her letter stated as follows:
I DO NOT have any “psychiatric condition”.
I DO NOT know this man named Dr. L.
Last April, when I opened a letter from Ministry of Transportation, and read that my license has been suspended, I have to say that I was profoundly shocked.
- I could not understand anything. I could not have any clue, any idea – why my driver’s licence was suddenly, out of the blue, suspended.
- I could not understand anything. I could not have any clue, any idea – who could have written such a letter to the Ministry of Transportation.
It took me days to complete the puzzle.
On April 10, on a beautiful sunny day, I remember pretty well my visit to (the psychiatric hospital)
I remember pretty well to have kindly talked, and very briefly, with two ladies.
I also remember pretty well to have kindly talked, and very briefly, with two men at the security office. That’s it.
On April 10, I DID NOT TALK with any doctor.
- A serious mistake has been made – I DO NOT have any “psychiatric conditions”.
I drive a car since I am sixteen years old. I am an excellent driver with a clean & remarkable driving record for now 27 years. I do not take any medication. I am a very healthy woman enjoying a very busy and happy life. Please. I am asking you to correct this serious mistake at your earliest convenience. Please.
- A serious mistake has been made – I DO NOT know Dr. L.
I DO NOT even know what this man looks like. Dr. L. is NOT my doctor. Dr. L. has NO knowledge of me. Dr. L. DOES NOT know me.
After days of digging – trying to discover who could have sent such a letter to the Ministry of Transportation, I finally discovered that this letter has been written by a man named Dr. L.
I then right away called him at his office to ask to meet with him for serious explanations, and very surprisingly, HE HAS REFUSED. (Moreover, I have tried to kindly ask him some questions over the phone and very surprisingly, he hung up the phone on me!)
The day after, desiring so much to have serious explanations, I went to (the psychiatric hospital) in order to schedule a time to meet in person with this man. BUT AGAIN, HE HAS REFUSED TO TALK WITH ME. Very surprisingly, he did not have one second to talk with me. And consequently, he refused again to schedule a time to meet with me in person.
I believe that this kind of behaviour from a doctor is a total nonsense.
I then contacted Ms. H., Client Relations Officer at (the psychiatric hospital) and explained that a serious mistake has been made, and moreover, asked to please have a chance to talk over the phone/meet in person with this man, Dr. L. Very unfortunately, Ms. H. told me she has asked Dr. L. to arrange a time for me to meet in person with this man. BUT HE HAS REFUSED. Dr.L. has told Ms H. that he does not want any contact with me.
I continue to believe that this kind of behaviour from a doctor is a total nonsense.
On another note, thank you very much for your fax on June 26, 2014
To try to please you and in order to get my license back as soon as possible, around one hour after talking with C. over the phone that day, I met with Dr. S. for the third time at her medical clinic – regarding this alleged suspension of my driver’s license. Dr. S. has again told me for the third time that she cannot fill this three page form.
Dr. S. told me that she cannot fill such a form because she said that:
She is not the one who has written such a letter to the Ministry of Transportation last April and she has never diagnosed me with “psychiatric conditions”.
In order to continue to try to please you, I went to a medical clinic on June 30th and presented the letter of the Ministry of Transportation with the three page form to Dr. St.
Again, the same results. Dr. St. told me that he cannot fill this three pages because he said he has never diagnosed me with “psychiatric conditions” and he is not the one who has written such a letter to the Ministry of Transportation last April
My driver’s licence is wrongly suspended since April 10th. This is now a very long period of time.
I cannot live without MY car. And I cannot live without MY driver’s licence. Moreover. It is my right to drive my car. I am a very healthy woman, my car insurance is paid. My car immatricriculation (sic) is paid- just as in the last 27 years of my life.
Please I am asking you to correct this serious mistake at your earliest convenience. Please.
I look forward to driving to Quebec City with my dog to visit my family and my friends.
On July 21, 2014, the Registrar wrote to the Appellant, acknowledging that the above two letters were received.
She was informed that further information is required and she was requested to take this letter to her treating physician, specialist or nurse practitioner and have the following information sent to the Medical Review Section:
- The reason for her visit to the psychiatric hospital on April 10, 2014 including copies of any medical notes, reports or assessments
- The results of any investigations conducted, a diagnosis, treatment, current status, confirmation that the condition is controlled,
- Details of residual deficits and other disqualifying medical concerns, if any.
On September 1, 2014, the Appellant responded:
Thank you for your letter of July 21, 2014.
But please understand that on April 10, I went to (the psychiatric hospital) only to get my parking ticket reimbursed.
Mistakes can happen, I understand, but I look forward to your resolving this mistake as early as possible.
On November 10, 2014, the Registrar replied:
The information previously requested has not been received.
Take this letter to your treating physician, specialist or nurse practitioner and have the following information sent to the Medical Review Section:
- The enclosed Mental Health Assessment form completed in full and all questions answered
- The form must make reference to your reported attendance at (the psychiatric hospital) on April 10, 2014
- Details of residual deficits and other disqualifying medical concerns, if any
If you are having difficulty finding a health care practitioner who will complete the form and supply the information we require, please contact the College of Physicians & Surgeons (contact info provided).
Mr. Biel referred to the Appellant’s driver record that shows the following convictions in addition to the licence suspension for medical reasons on April 24, 2014:
- Conviction on January 19, 2016 for offences on September 14, 2015: No validation on plate, driving with hand held device, failure to use seat belt, driving while licence is suspended.
- Conviction on February 24, 2016 for offences on November 6, 2015: No validation on plate, driving while licence is suspended.
Evidence by the Appellant
Notice of Appeal was received on December 8, 2016. The Appellant’s Reasons for Appeal were given as follows:
I do not know Dr. L: Dr. L. is NOT my doctor.
I do not have any psychiatric condition.
I look very forward to driving my car again – it is my right.
The Appellant was affirmed by teleconference on January 4, 2017.
The Appellant, now age 45, is bilingual; her first language is French. She stated that she works in real estate and land development and lived alone with her dog until he died in 2016.
Her testimony commenced with a review of the background information contained in her correspondence with the Registrar, as presented by Mr. Biel for the Respondent.
The Appellant stated that she has been trying to find a physician who would complete the Mental Health Assessment Form, without success.
The Tribunal advised the Appellant that an adjournment would be considered if she needed more time in order to find a physician who would agree to complete the Mental Health Assessment Form. Mr. Biel objected to an adjournment. The Tribunal determined that an adjournment was appropriate in the circumstances.
The Appellant agreed to an adjournment in person in Toronto on February 22, 2017. Mr Biel agreed to that date.
The Appeal was continued in Toronto on February 22, 2017.
The Appellant was reminded that her testimony was still under affirmation.
Mr. Biel informed the Tribunal that the Appellant had submitted new information to the Medical Review Section on February 13, 2017.
A family physician at a clinic in Toronto, Dr. B., completed a Mental Health Assessment Form on February 13, 2017.
The following is a summary of information contained in the Assessment:
Seen for first time today
Primary mental illness: none
Onset of most recent illness episode: N/A
Current status of the patient’s condition: N/A
Current symptoms: N/A
Difficulties to cognition, attention or memory: No impairment
To your knowledge, any difficulties with judgement: No
How many times admitted to hospital in the last 12 months due to psychiatric illness: None.
Seen for first time today. No past history available.
To the best of your knowledge, substance abuse dependence, abuse or misuse?: No
Any medication/treatment for any condition?: No
Adherence to recommended treatment regimen: N/A
Any pattern of non-adherence: N/A
Under medical supervision from a regulated health practitioner? : No
Does patient require an independent functional assessment: No
Patient seen for first time today. She denies ever having a psychiatric condition, substance abuse, or use of psychotropic meds.
The Registrar informed the Appellant on February 21, 2017, as follows:
The Ministry has reviewed your case in light of the subsequent report filed on your behalf.
However, further information is required as the report submitted was not from a treating physician or a physician who has knowledge of your medical condition/history.
Your reported condition is: Psychiatric Condition
What the Ministry requires from you:
Take this letter to your treating physician, specialist or nurse practitioner, and have the following information sent to the Medical Review Section:
- The enclosed form (Mental Health Assessment) completed in full and all questions answered.
The Appellant stated that her dog died and that she was again admitted to the psychiatric hospital on August 11, 2016. Mr. Biel asked if she informed Dr. B. about this admission to hospital and she stated: “Yes.”
The Appellant stated that she began to see her family physician, Dr. S., in 2003. In 2014, she had ended a stressful relationship with a man whom she had been seeing for nine years, and also she had changed to a vegetarian diet recently. There was no evidence of admission to the psychiatric hospital prior to April 10, 2014.
In April, 2014, the Appellant saw Dr. S. regarding abdominal pain and had an ultrasound test. When she returned to the doctor for the ultrasound result, Dr. S. wrote a referral note to the psychiatric hospital and the Appellant drove herself there. The Appellant explained that she did not read the contents of the referral and that Dr. S. was very busy and did not explain why she had been referred. The Appellant stated that she was seen at the hospital by a nurse for about fifteen minutes and was told, “We will keep you here”. No reason was given.
When asked by the Tribunal if she was admitted under the Mental Health Act, the Appellant stated that she was not free to leave the hospital for three days. She asked about leaving her car at the hospital and was told that it would be taken care of. She was also concerned about leaving her dog alone at her apartment.
The Appellant stated that she rarely saw a doctor during the three days and was under observation. She asked staff why she was in the hospital and was not given a diagnosis. She was not interviewed by an advocate while there. She stated that she was not seen by Dr. L. during the three days she was in the hospital. She was not informed about a report to the Ministry of Transportation.
The Appellant stated that before the admission to the psychiatric hospital, she had a good job and also that she had started a new relationship and was happy. She stated that she received three parking tickets during her stay at the hospital.
She stated that following receipt of the suspension, she contacted the Ministry about the medical report and was advised to go to see Dr. L. in person. She stated that Dr. L. refused to see her or to give her an appointment.
When asked by the Tribunal if she had requested a copy of her hospital record, the Appellant stated that she did so at a cost of forty-five dollars. She stated that the records were in a box which was stolen from her locker in her apartment building on January 23, 2017. The box also contained her copy of the Respondent’s disclosure.
The Tribunal asked if she wished to have the hearing adjourned in order to obtain a summary of the hospital admission in April 2014. The Appellant stated that she wished to complete the hearing without adjournment.
The Appellant stated that she no longer has a family physician since Dr. S. retired. She saw Dr. B. at a Toronto clinic on the advice of a friend.
The Appellant submitted a video taken by her on her telephone some time following her licence suspension, showing a visit made by her to the psychiatric hospital in an attempt to speak to Dr. L.
Mr. Biel viewed the video off the record and then informed the Tribunal that he had no objection to entering it as an exhibit. The Tribunal viewed the video and entered it as Exhibit #3.
The brief video depicts the Appellant seeking Dr. L.’s location in the hospital and having found him, there was an attempt by her to speak to him. Over a period of several seconds, there is a brief rejection by Dr. L. to see her and a threat to have her removed from the hospital by Security.
ISSUES
Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?
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
The Registrar has the power under s. 47(1) of the Act to suspend or cancel a driver’s licence for any of the grounds listed in paragraphs (d), (e), (f) or (g) of that section.
Paragraph (d), (e) and (f) do not apply in this case, as they relate to misconduct, criminal convictions, and commercial motor vehicles respectively. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f)”.
One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the Act is that the driver suffers from a medical condition or disability likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the Act states:
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
According to s. 14(2)(a) of the Regulation, if the Minister of Transportation is determining whether the requirements of s. 14(1) are met, the Minister may take into consideration the CCMTA Medical Standards for Drivers, which is published by the Canadian Council of Motor Transport Administrators. Similarly, the Tribunal may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.
Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.
The Registrar has the burden to establish the ground for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the decision or order of the Registrar.
SUBMISSIONS
The Registrar’s Submissions
During Mr. Biel’s submission on behalf of the Registrar of Motor Vehicles, the Appellant stated that she did not have a copy of the Respondent’s disclosure and, after a brief recess, a copy was prepared and handed to her.
Mr. Biel submitted that the Medical Condition Report, which was completed by a physician in compliance with s. 203 of the Act and indicated that the Appellant was diagnosed with an unstable psychiatric condition, authorized the Registrar to issue a suspension of the Appellant’s driving privilege under section 47(1) of the Act. The physician who completed the report also stated that the Appellant “appeared to be manic or hypomanic but is not agreeable to formal psychiatric assessment.”
Mr. Biel cited the CCMTA Guidelines for Determining Driver Fitness in Canada. Mr. Biel stated that the Guidelines have been adopted across Canada to assist licencing authorities in assessing the fitness of drivers with medical conditions that may affect road safety.
Guideline 14.6.1 applies to all drivers with psychiatric disorders. The standard under 14.6.1 states:
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 disorder, and
- the conditions for maintaining a licence are met
Conditions for maintaining licence:
- Stop driving and report to the authority if hospitalized due to a psychiatric disorder
- Remain under regular medical supervision and comply with prescribed psychotropic medication regime or other recommended treatment
Reassessment:
- Routine or more frequently at the discretion of the licensing authority
Information from health care providers:
- Opinion of treating physician whether the condition is stable and controlled
- Opinion of treating physician whether the driver has sufficient insight to stop driving if condition becomes acute
- Opinion of treating physician whether the functional abilities necessary for driving may be persistently impaired by the condition or its treatment, and if yes, the results of a functional assessment
- Whether the driver remains under regular medical supervision
- Details of any prescribed psychotropic medication regime or other recommended treatment and opinion of treating physician whether the driver is compliant with the treatment
- A specialist’s report supporting a return to driving, for drivers who have stopped driving due to a psychotic episode
- Date of most recent psychotic episode
- Opinion of treating physician as to the appropriate reassessment interval
Mr. Biel submits that the Appellant’s driving record shows two convictions for driving while under suspension, which suggests impaired judgement.
Mr. Biel also submits that the Mental Health Assessment Form submitted on February 13, 2017, was not completed by a physician who is the Appellant’s regular physician or has sufficient knowledge of the Appellant’s psychiatric history.
The Registrar is requesting confirmation of the Appellant’s licence suspension on the ground that she suffers from a mental condition that is likely to significantly interfere with her ability to drive a motor vehicle safely.
The Appellant’s Submissions
The Appellant submitted that Dr. L., the physician who submitted the Medical Condition Report, was not her physician and she denies being examined or treated by that physician.
The Appellant does not have a regular physician now because she is healthy and she had difficulty finding a physician, after two failed attempts, who was willing to complete the Mental Health Assessment Form for the Ministry in 2017. The Appellant managed to locate Dr. B., who completed the forms.
The Appellant insists that she is an excellent and careful driver. She stated that she had a sick dog in her car when she was stopped and charged by police while under suspension.
The Appellant asks to have the suspension of her driver’s licence set aside on the basis that she does not have a psychiatric illness and she is a safe driver.
APPLICATION OF THE LAW TO THE FACTS
The Tribunal has carefully reviewed the evidence and submissions of the parties and also the relevant legislation and guidelines.
There is little evidence in this case of what, if any, psychiatric condition the Appellant may have. The only medical evidence presented by the Registrar is the April 10, 2014 report by Dr. L. that states that her medical condition was “Mental or Emotional Illness: Unstable”. The report goes on to state, “Patient appears to be manic or hypomanic, but is not agreeable to formal psychiatric assessment.” The Appellant denies that she has any mental illness.
The Registrar has the onus to establish on a balance of probabilities both that the Appellant suffers from a physical or mental condition and that her condition is likely to significantly interfere with her ability to drive safely. The Registrar has not established that the Appellant suffers from a mental condition. The only medical evidence of the alleged condition is the brief report completed by Dr. L. in April 2014, which provided no context or explanation for the opinion that the Appellant’s condition was “unstable” or that she “appeared to be manic or hypomanic”. This report is insufficient to establish what, if any, mental condition the Appellant may have been suffering from in 2014. It also does not establish that she currently suffers from any such condition.
The Mental Health Assessment Form completed by Dr. B. on February 13, 2017 and submitted by the Appellant is also insufficient to establish whether or not the Appellant suffers from mental illness. That report was based on self-reporting by the Appellant without the benefit of the Appellant’s medical history. The Tribunal understands that the Appellant has been unable to find a physician with knowledge of her medical history to fill out the Mental Health Assessment Form.
With respect to the Appellant’s driving convictions, they are evidence of poor judgment, but have limited relevance to the issue of whether she has a mental condition. In the absence of adequate evidence, it is not the Tribunal’s role to speculate about the Appellant’s mental condition.
The Tribunal is concerned about the lack of evidence regarding the Appellant’s three-day stay at a psychiatric hospital in April 2014. However, without further evidence of the Appellant’s condition and the safety risk presented by such a condition, the Tribunal is not satisfied that the Appellant suffers from a condition that is likely to significantly interfere with her ability to drive a motor vehicle safely.
DECISION
Upon appeal of the Registrar’s Decision to suspend the Appellant’s 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: March 3, 2017