LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017-04-12

Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8, from a decision of the Registrar of Motor Vehicles to suspend a driver’s licence under subsection 47(1) of the Act

Between:

10671 Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Katherine Whitehead, M.D.

Appearances: For the Appellant: Self-represented For the Respondent: Steve Grootenboer, Agent

Place and date(s) of hearing: By Teleconference March 24, 2017

REASONS FOR DECISION AND ORDER:

A. Overview

1The Appellant has struggled with mental illness for a number of years. In 2012, her licence was suspended after a physician reported to the Ministry of Transportation that the Appellant purposely drove her vehicle into a hydro pole making no attempt to stop. The Appellant’s licence was subsequently reinstated based on medical evidence that her condition was stable. However, the Registrar of Motor Vehicles (the “Registrar”) decided to suspend the Appellant’s licence again on January 18, 2017 after receiving a report from an emergency room physician who filed the report in compliance with section 203 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), which requires all medical practitioners to report any person older than sixteen who is suffering from a condition which may make it dangerous for the person to drive. The Appellant visited the emergency room on that date after she had cut her arm, which the Appellant does on a regular basis as a result of her mental illness. The report indicated the Appellant’s condition as “Mental or Emotional Illness-Unstable”.

2The Appellant has appealed the suspension of her driver’s licence to this Tribunal under s. 50(1) of the HTA. She submits that although she suffers from mental illness, her licence should be reinstated because her condition is stable, her condition does not affect her ability to drive, and her physician supports the reinstatement of her driving privilege.

3For the reasons that follow, I find that the Appellant has a medical condition likely to significantly interfere with her ability to drive safely. Accordingly, I confirm the Registrar’s decision to suspend the Appellant’s driver’s licence.

B. ISSUES:

4The issue in this appeal is whether the Appellant suffers from a mental, emotional, nervous or physical condition or disability likely to significantly interfere with her ability to drive a motor vehicle safely. It is not in dispute that the Appellant suffers from a mental or emotional condition. The issue to be determined is whether that condition is likely to significantly interfere with her ability to drive safely.

C. facts and EVIDENCE:

Registrar’s Evidence

5The Registrar relies on evidence in relation to both the current suspension of the Appellant’s licence and the prior suspension in 2012.

6On July 15, 2012, Dr. L sent a Medical Condition Report to the Registrar in compliance with section 203 of the HTA. The Medical Condition Report indicated the Appellant’s condition as “Mental or Emotional Illness-Unstable”. In addition, it stated, “[Patient] purposely drove her vehicle into a hydro pole. Police stated no attempt to stop.”

7Based on that report, the Registrar decided to suspend the Appellant’s driver’s licence under s. 47(1) of the HTA on August 7, 2012.

8The Appellant had a physician, Dr. C, complete a Mental Health Assessment of her on August 14, 2012. It stated that the Appellant had major depressive disorder and that her condition was stable and ongoing with mild symptoms. Dr. C provided the following additional comments:

Patient suffered recurrence of symptoms due to not taking meds [illegible] due [to] temporary financial difficulties. Patient now aware of consequence of not taking meds and is now compliant.

9A letter dated June 2, 2014 from a psychiatrist who had cared for the Appellant since December 16, 2013, Dr. R, stated that the Appellant was hospitalized in a rehabilitation program, that her condition had improved significantly since her admission, she was fully compliant with her treatment, that she does not suffer from any major psychiatric disorder and her judgment and cognitive abilities can be considered to be in the normal range. The letter stated that the Appellant’s condition was stable since the end of January 2014 and that she is fully capable of driving.

10The Appellant’s licence was reinstated on July 28, 2014. On June 19, 2015, the Registrar required the Appellant to provide an up-to-date Mental Health Assessment in order to maintain her licence. Her licence was temporarily suspended for failing to provide the requested document. The Registrar subsequently received a Mental Health Assessment completed by Dr. S, a psychologist who had been involved in the Appellant’s treatment since 2013. It stated that she suffered from symptoms of anxiety, depression, impulsive or reckless behaviour, emotional control and “suicidal ideation/thoughts of self-harm”. The Assessment stated that her symptoms were mild and that she had not been admitted to hospital in the last 12 months due to her psychiatric illness. It stated that her “mental health diagnoses do not impair her ability to drive”. After receiving this report, the Appellant’s licence was again reinstated on November 5, 2015.

11On January 7, 2017, Dr. L, an emergency room physician, sent a Medical Condition Report to the Registrar in accordance with s. 203 of the HTA. The reported condition is “Mental or Emotional Illness-Unstable”. No further information was included on the Report.

12On January 18, 2017, the Registrar notified the Appellant of the Registrar’s decision to suspend her licence under s. 47(1) of the HTA. The letter enclosed a Mental Health Assessment form and stated that in order to have her licence reinstated, the Appellant should have the form completed in full by a physician, specialist or nurse practitioner.

13On January 25, 2017, the Appellant had the Mental Health Assessment completed by Dr. S. The Assessment states that the Appellant has personality disorder, and that her condition is stable with ongoing symptoms that are “moderate” and include anxiety, depression, impulsive or reckless behaviour, emotional control, “suicidal ideation/thoughts of self-harm” and a suicide attempt in the last year. It states that the Appellant has difficulties with judgment and has been admitted to hospital two or more times in the last 12 months due to psychiatric illness. It states that the Appellant complies with her recommended treatment regimen and that the Appellant has appropriate insight sufficient to understand her medical condition and the impact on her functional ability to drive. Dr. S included the following additional comment:

[The Appellant’s] diagnosis is borderline personality disorder. The diagnosis is unlikely to have any impact on her ability to drive safely at this time.

14On February 1, 2017, the Registrar notified the Appellant that her licence would remain under suspension and that the following was required in order to reinstate her licence:

• Confirmation of a six-month period of mental and emotional stability;
• Confirmation of improvement in condition with confirmation symptoms being successfully treated and/or resolved;
• Confirmation of improved judgment; and
• The Mental Health Assessment completed in full.

15Dr. S completed another Mental Health Assessment on March 9, 2017, which was very similar to the January 25, 2017 Mental Health Assessment. A letter from Dr. S was attached, which stated, among other things:

While she experiences significant emotional lability, thoughts of suicide and self-harm, and difficulties in interpersonal relationships, she is able to function effectively in other areas of her life, including maintaining employment, accommodation, and financial responsibilities….

[She] has difficulty regulating her emotions and behaviour. She can be impulsive and reckless when dysregulated. Typical behaviours when dysregulated include suicidal and self-harming gestures such as cutting, head-banging, asphyxiation, and overdose. To my knowledge she has never engaged in such behaviour while driving a vehicle. She has not been homicidal and has not used a vehicle to harm another person.

[The Appellant] demonstrates poor judgement in the following areas: self-disclosure, intimate relationships, sexual risk-taking, and self-destructive behaviour. Her judgement when driving – following the rules of the road, safely operating her vehicle, being mindful of other drivers or pedestrians, etc. – is considered intact.

In my opinion [she] has adequate insight about her diagnosis and strategies to manage it. I do not believe her illness impacts her functional ability to drive her vehicle.

16The Registrar notified the Appellant on March 15, 2017 that her licence would remain under suspension.

Appellant’s Evidence

17The Appellant is a single mother of three teenagers. Her evidence is that she has suffered from mental illness her entire life. She states that sometimes she has bad days and needs to seek help to get by. She believes that she should not be punished for doing so.

18The Appellant states that on January 7, 2017, she went to the emergency room in order to get stiches on her arm, after she had cut herself. She states that the physician who saw her in emergency put her on a “Form 1”, which allows the hospital to hold her until she has been seen by a psychiatrist. She was seen by a psychiatrist and then allowed to go home.

19The Appellant testified that she has visited the hospital 12 times in the last year for stitches resulting from cutting. She was put on a “Form 1” in three of those 12 visits. However, each time has been put on a “Form 1”, she was released after for 3-4 hours. She states that she continues to take medication for her psychiatric condition.

20The Appellant says that her symptoms have been the same on the various Mental Health Assessment forms that have been filled out since 2012, and she does not understand how the Registrar can pick and choose which ones to accept.

21With respect to the 2012 incident when she purposely drove into a hydro pole, the Appellant says that was a bad time in her life and a lot has happened since then. She states she has received treatment and the right medication. She says that she is not the same person that drove into a hydro pole, and that she operates heavy machinery at work without any distraction.

22The Appellant states that she saw the emergency room physician, Dr. L, for only 10 minutes on January 7, 2017 but has known Dr. S for 3 years. She states that Dr. S knows her well and that he is of the opinion that she is more than capable of operating a motor vehicle safely.

23The Appellant was asked by the Registrar’s agent whether Dr. S was aware of the 2012 incident, as that incident was not mentioned in his report. The Appellant testified in response that she did inform Dr. S of the 2012 incident and that it probably slipped his mind when he wrote the report.

D. LAW:

24The Registrar has the power under s. 47(1) of the HTA 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) are not applicable to this appeal as they relate to misconduct, 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).”

25One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA 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;

26Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators (CCMTA) Medical Standards for Drivers when determining whether the requirements of 14(1) are met. Similarly, the Tribunal may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.

27Under 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.

28The 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 HTA, confirm, modify or set aside the decision or order of the Registrar.

E. SUBMISSIONS:

Registrar’s Submissions

29The Registrar submits that the Tribunal should confirm the suspension. The Registrar submits that the Appellant’s licence should not be reinstated until her condition has been stable for six months and her judgment has improved. The Registrar submits that this is a reasonable request due to her continuing symptoms and the fact that she has previously used her vehicle to cause harm.

30The Registrar submits that although the Appellant testified that Dr. S must have forgotten about the 2012 incident and omitted it on the Mental Health Assessment form, the comments attached to the form state that she has never used the vehicle to cause harm.

Appellant’s Submissions

31The Appellant submits that the suspension of her licence should be set aside. She relies on Guideline 14.6 of the CCMTA Medical Standards for Drivers, which apply to drivers with psychiatric disorders. Guideline 14.6 states that 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.

32The Appellant submits that each of those criteria is met as follows:

• There is medical evidence that her condition is stable;
• Dr. S states in his report that she has appropriate insight and sufficient understanding about her condition and the impact on her functional ability to drive;
• Dr. S states in his report that he does not believe that her condition affects her functional ability to drive;
• Dr. S supports her return to driving; and
• The conditions for maintaining her licence are met, including that she sees Dr. S on a regular basis and takes her medication as required.

33The Appellant submits that her condition does not affect her ability to drive. She submits that the Tribunal should rely on the opinion of Dr. S, who has known the Appellant for three years, over the opinion of Dr. L who saw the Appellant for only 10 minutes. Dr. S knows how the Appellant functions and knows what she is capable of doing. Dr. L’s Medical Condition Report was based on the fact that she cut her arm. However, other doctors in the same situation understand that she is fine and send her home.

F. Analysis:

34I am satisfied that the Appellant’s mental condition is likely to significantly interfere with her ability to drive safely. The Appellant continues to experience symptoms of her psychological condition, continues to have difficulty regulating her emotions and behaviour and experiences periods of dysregulation in which she can be impulsive and reckless. She has had 12 hospital visits in a 12-month period following attempts at self-harm, three of which have resulted in a physician requiring the Appellant to remain in hospital.

35The medical evidence of Dr. S is that the Appellant’s psychiatric condition makes it difficult for her to regulate her emotions and behaviour. Dr. S states that when the Appellant is dysregulated, she can be impulsive and reckless, and that her typical behaviours when dysregulated include “suicidal and self-harming gestures such as cutting, head-banging, asphyxiation, and overdose”. Her psychiatric condition has impaired her ability to drive at least once in 2012 when she drove purposely into a hydro pole and made no attempt to stop. If the Appellant is dysregulated and becomes impulsive and reckless while driving, her ability to operate the motor vehicle safely would be significantly impaired. Based on the evidence of the Appellant’s continuing symptoms, I find that this is likely to occur.

36Dr. S states in his January 25, 2017 report that the Appellant’s diagnosis is “unlikely to impact on her ability to drive safely at this time”. However, I am unable to accept this opinion because he did not appear to take into consideration the fact that the Appellant’s psychiatric condition has previously interfered with her ability to drive. He states in his letter attached to the Mental Health Assessment dated March 9, 2017 that he does “not believe her illness impacts her functional ability drive a vehicle.” However, it appears that in forming that opinion, Dr. S did not take into account the 2012 incident in which the Appellant purposely drove her vehicle into a hydro pole. Dr. S wrote in his letter dated March 9, 2017 that to his knowledge, the Appellant “has never engaged in such behaviour [i.e. dysregulated behaviour] while driving a vehicle. She has not been homicidal and has not used a vehicle to harm another person.”

37Dr. S began to be involved in the Appellant’s care in 2013, after the 2012 incident. The Appellant testified that Dr. S knew about the 2012 incident. When the Appellant was asked in cross-examination why Dr. S did not refer to the 2012 incident in his report, the Appellant suggested that he probably forgot about it.

38Regardless of whether Dr. S knew about the 2012 incident, I find that he did not take it into consideration in filling out the Mental Health Assessment on January 25, 2017 or the Mental Health Assessment on March 9, 2017. I make this finding because he wrote in the letter attached to the Mental Health Assessment dated March 9, 2017 that the Appellant had never, to his knowledge, engaged in her dysregulated behaviours when driving, when in fact she had. If Dr. S had considered the 2012 incident in which the Appellant purposely drove her vehicle into a hydro pole, he would not have made that statement. That is not to say that Dr. S would necessarily have come to the opposite conclusion if he had taken the 2012 incident into account. However, I am unable to speculate on what Dr. S’s opinion on the Appellant’s fitness to drive would have been if he had considered that incident. For that reason, I am unable to give any weight to Dr. S’s assessment that the Appellant’s condition is unlikely to impact her ability to drive.

39Dr. S also states that the Appellant’s “judgement when driving – following the rules of the road, safely operating her vehicle, being mindful of other drivers or pedestrians, etc. – is considered intact.” However, my finding that the Appellant’s condition is likely to significantly interfere with her ability to drive safely is not based on any deficiency in the skills required for driving on a day-to-day basis, but rather on the likelihood that the Appellant will become dysregulated while driving.

40I understand that the Appellant has worked hard to seek the help that she needs to manage her mental illness. I recognize that the Appellant feels that her condition has improved significantly since 2012 when she drove her vehicle into a hydro pole. However, Dr. S states that the Appellant continues to be impulsive and reckless when dysregulated. Further, she has previously used her vehicle to cause harm. Upon consideration of all of the evidence, I find that the Appellant’s mental condition is likely to significantly interfere with her ability to drive safely.

ORDER:

41For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the Appellant’s driver’s licence is confirmed.