LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017-06-30

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:

M.F. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Kevin Flynn, M.D., Member

Appearances:

For the Appellant: No appearance For the Respondent: Kyle Biel, agent

Place and date of hearing:

By teleconference June 7, 2017

REASONS FOR DECISION AND ORDER

A. Overview:

1The appellant is a 73-year-old woman. On April 26, 2016, the appellant’s family physician reported to the Registrar of Motor Vehicles (the “Registrar”) that the appellant suffered from drug dependence and motor impairment and that, as a result, she was unsafe to drive. This report was sent to the Registrar in compliance with s. 203 of the Highway Traffic Act, RSO 1990, c H.8 (the “HTA”), which requires all physicians in Ontario to report to the Registrar any patient 16 years of age or over who is suffering from a medical condition that may make it dangerous for the person to operate a motor vehicle.

2Based on that report, on April 27, 2016, the Registrar decided to suspend the appellant’s driver’s licence pursuant to s. 47(1) of the HTA. The appellant appeals that decision.

3The respondent submits that the appellant’s licence should remain under suspension because her substance dependence impairs the functions necessary to drive a motor vehicle safely. The appellant states in her notice of appeal that she “still [is] able to drive a car and conduct herself in an appropriate way.” As explained below, the appellant did not attend her hearing and did not give evidence.

4For the reasons that follow, I find that the appellant is addicted to a drug to an extent likely to significantly interfere with her ability to drive a motor vehicle safely. Accordingly, I confirm the decision of the Registrar to suspend her driver’s licence.

B. Preliminary Issue

5This appeal was initially scheduled to be heard by teleconference on December 21, 2016, but was adjourned to be held in person on December 23, 2016. A Case Management Officer (“CMO”) at the Tribunal spoke to the appellant on December 22, 2016 in order to remind her about the hearing. However the appellant did not attend the hearing on December 23, 2016. The Tribunal waited 30 minutes for the appellant, and then rescheduled the hearing for February 1, 2017. The appellant was advised of the new hearing date by mail. I am advised by tribunal staff that the CMO also spoke to the appellant on the telephone and advised her of the new hearing date.

6The appellant failed to attend the rescheduled hearing on February 1, 2017. As a result, on February 6, 2017, the Tribunal issued a Notice of Intent to Dismiss the appeal as abandoned, pursuant to Rule 3.5 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016). The appellant was provided with 10 days to make submissions on why the appeal should not be dismissed as abandoned. The Tribunal attempted to mail the Notice of Intent to Dismiss to the appellant, but it was returned as undeliverable. I am advised by tribunal staff that the CMO made numerous attempts to contact the appellant by telephone, and that the CMO ultimately spoke with the appellant and advised her of the Notice of Intent to Dismiss.

7On February 22, 2017, the appellant contacted the CMO by telephone to request an extension of time to make submissions on the Notice of Intent to Dismiss. I granted that extension of time. The appellant provided written submissions on March 13, 2017, in which she stated that she missed the previous Tribunal appointments due to “unforeseen circumstances” and requested that the hearing be rescheduled for the first week of June 2017. The appellant also advised the CMO by telephone that she had not received any written documents from the Tribunal because she had recently moved and was in the hospital.

8Based on the information provided by the appellant, I decided not to dismiss the appeal as abandoned. The hearing was rescheduled for June 7, 2017. On March 17, 2017, the Tribunal sent a letter advising the appellant of the new hearing date by e-mail to the appellant’s brother-in-law, R.B. I am advised by tribunal staff that the appellant had previously asked the Tribunal to communicate with R.B. I am also advised by tribunal staff that the CMO spoke with the appellant by telephone and confirmed the June 7, 2017 hearing date.

9On March 28, 2017, a Declaration of Representative form was submitted to the Tribunal appointing R.B. as the appellant’s representative “for the purpose of helping with paper work only.”

10I am advised by tribunal staff that the Registrar’s agent contacted the Tribunal on May 11, 2017 to inform the Tribunal that the appellant had left him a message which, if the agent understood correctly, appeared to be requesting more time. The CMO then left voicemail messages for both the appellant and R.B. asking the appellant to contact the CMO if she wished to request an adjournment. As the CMO received no response, on May 12, 2017, she sent an e-mail to R.B. attaching the Tribunal’s adjournment request form. The CMO received no response and sent the adjournment request form to R.B. again on May 23, 2017. The Tribunal received no contact from the appellant after that time.

11The CMO attempted to contact the appellant and R.B. several times in the days leading up to the June 7, 2017 hearing, without success. I am advised by tribunal staff that a representative of the Tribunal was able to reach R.B. by telephone the day before the hearing. R.B. indicated that he had not been in touch with the appellant lately but that he had thought that the hearing had been further adjourned. R.B. was advised that the hearing would proceed.

12The appellant did not attend the in-person hearing on June 7, 2017, nor did anybody attend on her behalf. The hearing was put on hold for 30 minutes, but the appellant did not arrive.

13The hearing then proceeded in the appellant’s absence in accordance with s. 7(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, and Rule 3.7 of the Tribunal’s Rules of Practice and Procedure.

C. ISSUES

14The issue in this appeal is whether the appellant suffers from a medical condition or addiction likely to significantly interfere with her ability to drive a motor vehicle safely. In order to answer that question, I will address the following issues:

1. Is the appellant dependent on a drug?
2. Does the appellant have a motor function impairment?
3. Is the appellant’s medical condition or addiction, if any, likely to significantly interfere with her ability to drive safely?

D. EVIDENCE:

15On April 26, 2016, the appellant’s family physician, Dr. G., sent a Medical Condition Report to the Registrar in accordance with s. 203 of the HTA. Dr. G. had been the appellant’s physician since October 2012. Dr. G. reported the conditions of “Drug Dependence” and “Motor Function/Ability Impaired”. Dr. G. stated in the report:

[72-year-old female] with drug dependence and abuse with mobility impairment. The drug abuse impairs cognition. Currently she is unsafe to drive and should be tested by [the Ministry of Transportation] to see if she has the ability to drive.

16On April 27, 2016, the Registrar advised the appellant by letter that it had decided to suspend her driver’s licence under s. 47(1) of the HTA due to the report condition of “Substance Use/Abuse”. The letter enclosed a Substance Use Assessment form to be completed by the appellant’s medical practitioner and sent to the Ministry of Transportation’s Medical Review Section in order to determine whether her licence can be reinstated.

17The appellant had the Substance Use Assessment form completed by a psychiatrist, Dr. D. The copy of the form that was sent to the Registrar and is in evidence before me is missing the second page. The form is dated August 3, 2016, but the Registrar reports that it did not receive it until the appellant submitted her notice of appeal to the Tribunal in November 2016.

18The Substance Use Assessment form provides the following information:

• the appellant is diagnosed with misuse of prescription medication;

• the appellant’s current medication regimen results in the following side effects: “impairment of concentration/attention” and “impairment of judgment”;

• the appellant reports adherence to the recommended treatment regimen but demonstrates a pattern of non-adherence, such as a pattern of misuse of medication or missed appointments

19The comment section states, “Patient out of control with sedative use. Now stable on meds 1 month.”

20On December 16, 2016, the Registrar advised the appellant by letter that the second page of the Substance Use Assessment was not received and further information is required. The letter stated that her reported conditions are: “Motor Function Impairment/Musculoskeletal Disability” and “Substance Use/Abuse”. The letter enclosed a new Substance Use Assessment form and a Musculoskeletal Condition/Motor Function Ability Impairment form to be completed by the appellant’s medical practitioner. The letter further stated that the Registrar required confirmation that the appellant is adhering to the recommended treatment regimen and is taking her medication at the prescribed dosage.

21The appellant did not submit those forms to the Registrar.

22The Registrar has not requested a functional road assessment, as the Registrar was not of the view that it would be safe for the appellant to attempt the functional road assessment.

23As the appellant did not attend the hearing, she did not give testimony. Her notice of appeal dated November 19, 2016 states, “I still am able to drive a car and conduct myself in an appropriate way.”

E. 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; 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.

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 s. 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 of establishing 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.

F. ANALYSIS:

29I am satisfied based on all of the evidence that the appellant is addicted to prescription medication to an extent likely to significantly interfere with her ability to drive safely.

30I accept the opinion of Dr. G. that the appellant’s drug abuse impairs her cognition, and that she is currently “unsafe to drive”. I also accept the opinion of Dr. D. that the appellant’s use of medication impairs her concentration, attention and judgment. These are all functions necessary for safe driving.

31Both Dr. G. and Dr. D. have been involved in the appellant’s care since 2012, and would have substantial knowledge of the appellant’s medical conditions and history.

32Although Dr. D. states that the appellant has been stable on medication for one month, this does not change Dr. D.’s opinion that the appellant’s concentration, attention and judgment are impaired or that she is “out of control with sedative use”. Nor does it contradict Dr. G.’s opinion that the appellant is unsafe to drive. In any event, I do not find that one month of stability is sufficient to sufficiently reduce the risk to road safety caused by the appellant’s abuse of prescription medications.

33Accordingly, after considering the evidence and submissions of the Registrar and the documents submitted by the appellant, I am satisfied that the appellant is addicted to a drug to an extent likely to significantly interfere with her ability to drive safely.

34There is no medical evidence that the appellant’s musculoskeletal issues are likely to significantly interfere with her ability to drive.

ORDER:

35For 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.