Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2017-10-06

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:

J.P. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Kevin Flynn, M.D., Member Avril A. Farlam, Vice-Chair

Appearances: For the Appellant: J.P. For the Respondent: Kyle Biel, Agent

Heard by teleconference: August 11, 2017

REASONS FOR DECISION AND ORDER

A. Overview:

1The appellant is a 26-year-old man. The Registrar of Motor Vehicles (the “Registrar”) suspended the appellant’s driver’s licence after receiving from the appellant’s physician a Mental Health Assessment dated April 13, 2017.

2Pursuant to s. 203(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), all medical practitioners are required to report any person 16 years of age or older who is suffering from a condition that may make it dangerous for the person to drive. The Mental Health Assessment noted that the appellant had been diagnosed as having behavioural/learning disability, ADHD, depression/dysthymia and anxiety disorder. The Registrar suspended the appellant’s driver’s licence on April 28, 2017, under s. 47(1) of the HTA due to the appellant’s psychiatric condition.

3For the reasons that follow, we find that the appellant suffers from a mental condition that is likely to significantly interfere with his ability to drive safely. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

PRELIMINARY ISSUE

4The hearing was initially scheduled to be heard on June 19, 2017. At the appellant’s request, the hearing was adjourned to August 11, 2017. The appellant indicated that he needed the adjournment to obtain and submit an independent assessment. As of the August 11, 2017 hearing date, no new information was provided to the Tribunal or to the respondent. The appellant requested that the hearing proceed.

B. ISSUE:

5The issue in this appeal is whether the appellant suffers from a mental, emotional, nervous condition or disability that is likely to significantly interfere with his ability to drive a motor vehicle safely. In order to answer that question, we will address the following issues:

1. Does the appellant suffer from a behavioural/learning disability, ADHD, depression/dysthymia and anxiety disorder?

2. Is the appellant’s medical condition, if any, likely to significantly interfere with his ability to drive safely?

C. EVIDENCE:

6The respondent filed three Mental Health Assessment reports (“assessment”) completed in 2017 by Dr. L., the appellant’s family physician. The April 13, 2017 assessment diagnosed the appellant as having behavioural/learning disability, ADHD and depression/dysthymia and reported that the appellant used one gram of marijuana per day. This assessment also stated that the appellant had stopped taking medication prescribed by the appellant’s psychiatrist because he felt it affected his concentration. The May 10, 2017 assessment gives the same diagnosis and notes marijuana use and the additional diagnosis of anxiety disorder. In this assessment Dr. L. recommended the appellant attend for an Independent Functional Assessment being an on-road assessment. The doctor expressed concern over the fact that the appellant was not taking his prescribed medication, not adhering to medical treatment and suggested that the appellant return to see his psychiatrist. He further indicated that he felt the appellant lacked insight into his condition. Dr. L. noted the appellant was hospitalized in September 2016 and October 2016 due to psychiatric illness. The June 15, 2017, assessment gives the same diagnosis as found in the May 10 assessment with the additional diagnosis of substance use (marijuana). This June 15, 2017, assessment also indicates that the appellant needs to see a psychiatrist, suggesting that this course of action, which was suggested to the appellant in May 2017, has yet to be done.

7The respondent filed a Substance Use Assessment dated May 10, 2017 completed by Dr. L. which notes that the appellant “states only using marijuana” and suggests a urine drug screen. The lab report from the drug test performed May 17, 2017 notes that cannabinoids (THC) and cocaine were detected in the appellant’s urine indicating continuing and escalating drug use after the licence suspension.

8The respondent filed a certified copy of the appellant’s driving record dated May 25, 2017 obtained from the Ministry of Transportation which shows that the appellant has eight convictions for driving infractions including driving under suspension.

9The appellant admitted in his testimony that he is functionally illiterate and has ADHD. He also admitted that the hospitalizations in September and October, 2016 resulted from anger management issues and arguments with his girlfriend. On one of these occasions he put his fist through the vehicle window and was cut. He admitted to some tendency toward self-harm.

10The appellant stated that on November 2016 he was involved in a motor vehicle accident which occurred one week after he started on a new medication. He has not seen his psychiatrist since December 2016 but has now booked an appointment and expects to see his psychiatrist soon. The appellant explained that he went to a party the night before his drug test and used cocaine. He stated that this is not his usual behaviour. He also said that although his mental condition causes him much social grief, it does not affect his ability to drive. The appellant stated that his communication difficulties with Dr. L. caused the doctor to exaggerate his condition. He is now seeking a new family physician. The appellant admitted that he forgets to take his prescribed medication. He acknowledged that he uses one to two grams of marijuana for two hours in the evening.

D. LAW:

11The 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).”

12One 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.

13Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”) when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

14Under 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.

15The 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.

E. ANALYSIS:

Does the appellant have a behavioural/learning disability, ADHD, depression/dysthymia and anxiety disorder?

16As set out below, we find that the appellant has a behavioural/learning disability, ADHD, depression/dysthymia and anxiety disorder.

17All three of the assessments filed by the Registrar confirm that the appellant was diagnosed as having a behavioural/learning disability, ADHD and depression/dysthymia and that the appellant uses one or two grams of marijuana per day. The May 10, 2017 assessment states the additional diagnosis of anxiety disorder. The June 15, 2017 assessment states the further additional diagnosis of substance use (marijuana). Dr. L. has recommended an Independent Functional Assessment, that the appellant return to see his psychiatrist and also see a psychologist. There is clear and ample evidence of the diagnosis of the appellant’s mental condition and that the mental condition is ongoing.

18The appellant’s mental condition has resulted in his hospitalization twice in the last twelve months. The appellant has been prescribed medication by his psychiatrist but is not taking it. He is not adhering to recommended medical treatment. He has not seen his psychiatrist since December 2016 and has failed to follow through and complete an Independent Functional Assessment. Further, the appellant has not seen a psychologist. Dr. L. says the appellant lacks insight into his condition. The appellant’s driving record shows eight convictions for driving infractions including driving under suspension. The Substance Use Assessment dated May 10, 2017 notes marijuana use and the drug test detected cannabinoids (THC) and cocaine.

19The appellant did not offer any medical evidence in support of his contention that his medical condition does not affect his ability to drive safely. The appellant stated that he believes Dr. L. has exaggerated his mental condition, but offered no medical evidence to challenge Dr. L’s diagnosis.

20With respect to the appellant’s diagnoses, we prefer the evidence of the medical specialists to that of the appellant, as the medical specialists are better qualified to assess the appellant’s physical and mental conditions. Accordingly, we find, based on the totality of the evidence, that the appellant has a behavioural/learning disability, ADHD, depression/dysthymia and anxiety disorder.

Is the appellant’s mental condition likely to significantly interfere with his ability to drive safely?

21We find the appellant’s mental condition is likely to significantly interfere with the appellant’s ability to drive safely, and confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

22The appellant testified about the challenges, and possible loss of independence and employment he will face as a result of the suspension of his licence. The appellant’s position is that he is a safe driver and the suspension of his licence should be set aside.

The Registrar submits that the appellant’s mental condition is severe enough that he should not be permitted to drive, and that the ability to drive is impaired. The Registrar also submits that the appellant is not following prescribed medical treatment in that he is not taking his medication, not seeing his psychiatrist yet, not yet seeing a psychologist, using illicit substance and has no insight into his medical condition. In these circumstances he should not be allowed to drive. The Registrar’s position is that the appellant presents a safety risk at this time. The Registrar relies on the guidelines contained in the CCMTA Medical Standards for Drivers (the “Standards”) with respect to psychiatric disorders (chapter 14) and substance abuse or dependence (chapter 15).

23Chapter 14 of the Standards indicates that individuals with psychiatric disorders are at a higher risk for adverse driving outcomes. Guideline 14.5 indicates that drivers with psychiatric disorders are not able to compensate for their impairments.

24Guideline 14.6.1 states that individuals with psychiatric disorders 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 hospitalised due to a psychiatric disorder, and remain under medical supervision and comply with prescribed psychotropic medication regime or other recommended treatment.

25Based on this standard, the appellant would not be eligible for a licence. The appellant’s medical condition is not stable. He has been prescribed medication which he is not taking, has not seen his psychiatrist since December 2016 and has not yet seen a psychologist. The appellant’s family doctor says he does not have insight into his condition. The appellant has not taken an Independent Functional Assessment although his doctor recommended he do so. The appellant has demonstrated poor judgment and erratic behavioural pattern, inadequate management of his anger and has not demonstrated a pattern of compliance with his medical and psychiatric requirements.

26The following warning from the CCMTA section on Psychiatric Disorders states that Mood Disorders, Anxiety Disorders ADHD and Schizophrenia, episodic impairment requires medical assessment of the likelihood of impairment for cognitive and psychomotor abilities. ADHD affects planning and forethought, flexibility, problem solving, working memory and response inhibition. ADHD symptoms relevant to driving include inattention (close attention to details or makes careless mistakes), hyperactivity- impulsivity (often is ‘on the go’ or acts as if “driven by a motor” and often has difficult awaiting his turn).

27We find that the appellant has manifested many of these features in his behaviour in the past few months, and that he does not meet the functional abilities necessary for driving.

28Chapter 15 of the Standards indicates that individuals who are under the influence of alcohol and illicit drugs such as opioids, cocaine, amphetamines are at a higher risk for adverse driving outcomes.

29Guideline 15.6.3 states that an individual who is under the influence of alcohol and illicit drugs such as opioids, cocaine, amphetamines is eligible for a licence if he or she:

• Meets the criteria for remissions and/or has abstained from the substance for 12 months.

• Earlier re-licencing may be considered upon favourable recommendation from an additional specialist and/or treating physician and successful completion of a drug rehabilitation program

• The functional abilities necessary for driving are not impaired

• Where required, a road test or other functional assessment shows the functional abilities for driving are not impaired

30The respondent has submitted that the decision to request a functional road assessment would be made following adequate cognitive assessment and a psychiatric assessment.

31Based on this standard, the appellant would not be eligible for a licence. The assessments and the drug test demonstrate that the appellant has used marijuana and cocaine during the past 12 months. The Tribunal is not bound by CCMTA Guidelines but in the complex environment of driving with his diagnosis, he requires supervision by his physician including adherence to treatment.

32The Tribunal finds that the appellant has acknowledged evidence of dependence to marijuana to an extent that significantly affects his ability to operate a motor vehicle safely. We find that the appellant has demonstrated very poor insight and judgment in using cocaine the evening before the drug test. We find, on a balance of probabilities, that while dependence on either marijuana or cocaine has not been independently confirmed, the appellant’s ADHD, behavioural disorders and poor insight would indicate his susceptibility to further substance abuse and warrants professional assessment and avoidance. Accordingly, we find, based on the totality of the evidence that the appellant’s mental condition is likely to significantly interfere with his ability to drive safely.

Conclusion

33We appreciate that the loss of a driver’s licence can have significant consequences for the individual affected. While we understand the appellant’s concerns about the practical challenges that result from a licence suspension, we must apply the provisions of the HTA and regulations, keeping in mind the objective of ensuring public road safety.

34After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant suffers from a mental condition that is likely to interfere with his ability to drive a motor vehicle safely.

F. 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.