LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards

Tribunals Ontario

Date: 2017-06-09

Appeal under section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8m, from a Decision of the Registrar of Motor Vehicles pursuant to section 47(1) of that Act – to Suspend a Licence

Between:

Appellant

and

Registrar of Motor Vehicles Respondent

RECONSIDERATION DECISION

Before: Linda P. Lamoureux, Executive Chair

Written Submissions By: For the Appellant: n/a For the Respondent: Patrick Moore, Counsel

Date of Order: June 9, 2017

OVERVIEW

1On February 15, 2017, the Licence Appeal Tribunal (the “Tribunal”) issued its decision in 10567 v. Registrar of Motor Vehicles, setting aside the suspension of the Appellant’s driver’s licence for medical reasons. The Respondent, the Registrar of Motor Vehicles (the “Registrar”), requests a reconsideration of the Tribunal’s decision pursuant to Rule 18 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) (the “Rules”).

2For the reasons that follow, I dismiss the Respondent’s request for reconsideration.

BACKGROUND

3The Registrar suspended the Appellant’s driver’s licence on April 24, 2014 under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”) after receiving a report from a psychiatrist at a psychiatric hospital who reported the condition of “Mental or Emotional Illness: Unstable”. The report about the Appellant stated, “Patient appears to be manic or hypomanic, but is not agreeable to formal psychiatric assessment”. The report was completed in compliance with section 203 of the HTA, which requires all medical practitioners to report to the Registrar any person older than sixteen who is suffering from a condition that may make it dangerous for the person to drive. The Registrar provided the Appellant with a Mental Health Assessment Form to be completed by her medical practitioner.

4On December 8, 2016, the Appellant appealed the Registrar’s decision to suspend her licence to the Tribunal under s. 50(1) of the HTA.

5The hearing was initially scheduled for January 4, 2017. At that time, the Appellant had not yet had the Mental Health Assessment Form filled out. She testified that she had been trying to find a physician who would complete the Mental Health Assessment Form, without success. The hearing was adjourned to provide the Appellant with additional time to have the form completed.

6The Appellant had the Mental Health Assessment Form completed on February 13, 2017, by a physician at a clinic who saw her for the first time that day. The form reported no mental impairment, but noted that he or she had no knowledge of the Appellant’s medical history. The Appellant testified that she no longer had a family doctor, as her previous family doctor had retired.

7At the hearing, the Registrar requested that the suspension be confirmed on the ground that the Appellant suffers from a mental condition that is likely to significantly interfere with her ability to drive safely. The Registrar submitted that a physician with sufficient knowledge of the Appellant’s psychiatric history did not complete the Mental Health Assessment Form.

8The Appellant submitted that she does not have a psychiatric illness and denied being examined by the doctor who reported her to the Registrar in the first place. She stated that she had difficulty finding a physician who was willing to complete the Mental Health Assessment Form, but she managed to have the clinic physician complete the form.

9In a decision released March 3, 2017, the Tribunal set aside the Registrar’s decision to suspend the Appellant’s licence. The Tribunal found that there was insufficient evidence to establish that the Appellant had a psychiatric illness. The Tribunal found both the Medical Condition Report that triggered the suspension and the Mental Health Assessment Form completed on February 13, 2017 to be insufficient to establish one way or the other whether the Appellant suffered from a psychiatric illness. The Tribunal’s reasons provide, among other things, that it “[understood] that the Appellant [had] been unable to find a physician with knowledge of her medical history to fill out the Mental Health Assessment Form”. As no mental illness had been established, the Tribunal found that the Registrar failed to prove that the Appellant suffered from a physical or mental condition likely to significantly interfere with her ability to drive safely.

10On March 23, 2017, the Registrar filed a request for reconsideration pursuant to Rule 18. On March 31, 2017, the Tribunal provided the Appellant with an opportunity to make responding submissions by April 17, 2017. The Tribunal has not received any submissions from the Appellant.

11The Registrar submits that the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision. The Registrar does not dispute the Tribunal’s finding that the Registrar did not prove on a balance of probabilities that the Appellant suffers from a medical condition likely to significantly interfere with her ability to drive safely. Rather, the Registrar argues that the Tribunal erred by failing to fully consider whether there were “other sufficient reasons” for suspending her licence under s. 47(1)(g) of the HTA. Specifically, the Registrar submits that the Tribunal failed to consider the following:

• whether the original suspension of the driver’s licence was justified based on the Ministry of Transportation’s receipt of a report from a medical practitioner under s. 203 of the HTA; and
• whether the Registrar was justified in maintaining the suspension after the Appellant failed to provide the Ministry with a proper medical report, as the Ministry had required in several letters.

12The Registrar submits that the Tribunal unreasonably narrowed the issues in a way that made it very difficult for the Registrar to meet the onus of proof in a case where the driver was uncooperative.

ISSUES

13The issue to be determined is whether the Tribunal failed to fully consider whether there were “other sufficient reasons” for the suspension of the Appellant’s licence and, thereby, made a significant error of law or fact such that the Tribunal would likely have reached a different decision.

LAW

14Rule 18.2 states that the Executive Chair will not grant a request for reconsideration unless one or more of the following criteria are met:

a. The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;

b. The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;

c. The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or

d. There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

15As stated in Rule 18.4, upon consideration of a request for reconsideration, the Executive Chair may:

a. Dismiss the request; or

b. After providing all parties an opportunity to make submissions,

i. Confirm, vary, or cancel the decision or order; or

ii. Order a rehearing on all or part of the matter.

ANALYSIS

16I am not satisfied that the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision.

17Paragraph 47(1)(g) of the HTA states that the Registrar may suspend a driver’s licence for “any other sufficient reason” not referred to in paragraphs 47(1)(d)-(f). It is true that “any…sufficient reason” may include reasons other than non-compliance with s. 14(1) of O. Reg. 340/94 (the “Regulation”), which states in part that a driver must not 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. However, I am not satisfied that the Tribunal erred by failing to consider either of the two considerations put forward by the Registrar.

18First, the Registrar alleges that the Tribunal failed to consider whether the original suspension was justified based on the Ministry’s receipt of a report filed by a medical practitioner under s. 203 of the HTA. I do not find this to be an error, as the Tribunal is not required to determine whether the suspension was initially justified. There is no time limit to appeal a decision under s. 47(1) of the HTA to suspend a licence, and a driver may appeal at any time. The Tribunal must determine whether there is a sufficient reason to suspend the licence upon considering all of the evidence available at the time of the hearing. Asking whether the original suspension was justified does not assist the Tribunal in determining whether, at the time of the hearing, the decision to suspend the licence should be confirmed or set aside. Even if the Tribunal had found that the original suspension was justified, it would not affect the result, as the Tribunal will only confirm the Registrar’s decision if, at the time of the hearing, there remains a sufficient reason for the suspension. In any event, the Tribunal considered whether the initial s. 203 report is sufficient evidence on which to confirm the suspension, and found that it was not.

19Second, the Registrar alleges that the Tribunal failed to consider whether the Registrar was justified in maintaining the suspension because the Appellant failed to provide the medical documentation required by the Ministry. The Registrar notes that section 14(2)(b) of the Regulation states that in determining whether the requirements in s. 14(1) are met, the Minister of Transportation may require a driver to provide satisfactory evidence that he or she is able to drive safely.

20I do not find that the Tribunal erred in this regard. The Tribunal must be satisfied that there is a sufficient reason to suspend a licence. Failure to provide medical documents is not, on its own, a sufficient reason. Rather, a failure to provide medical documentation requested by the Ministry may be taken into consideration in determining whether the person suffers from a medical condition likely to significantly interfere with the ability to drive safely, which is a sufficient reason.

21The onus is on the Registrar to introduce evidence that is sufficient to support a finding that the Appellant suffers from a medical condition likely to significantly interfere with the ability to drive safely. The Appellant has an opportunity to provide evidence to the contrary. If the Appellant does not introduce any reliable evidence, then the Tribunal must determine whether the Registrar’s evidence is sufficient to meet the test in s. 14(1) of the Regulation. It is open to the Tribunal to draw an adverse inference from the Appellant’s failure to introduce medical evidence despite being provided with the opportunity to do so. However, it is also open to the Tribunal to find that the Registrar’s evidence is insufficient on its own to meet the test in s. 14(1).

22In any event, it is clear in this case that the Tribunal did consider the fact that the Appellant failed to submit a Mental Health Assessment Form completed by a doctor with knowledge of her medical history. After finding that the Medical Condition Report that triggered the suspension was insufficient to establish that the Appellant suffered from mental illness, the reasons go on to state:

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. [Emphasis added]

23The Tribunal considered the fact that the Appellant had the Mental Health Assessment Form completed by a physician without knowledge of her medical history, but decided that this was understandable in the circumstances and did not draw an adverse inference against the Appellant. It was certainly open to the Tribunal to decline to do so.

24Accordingly, I am not satisfied that the Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision.

ORDER

25Upon consideration of the submissions of the Respondent, and having provided an opportunity to the Appellant to make submissions, I dismiss the Respondent’s request for reconsideration.