Date: 2018-10-15

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 pursuant to section 47(1) of the Act to suspend a Driver’s Licence

Between:

D.G.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Erica Weinberg, M.D., Member

Avvy Yao-Yao Go, Member

Appearances:

For the Appellant: D.G., Appellant

For the Respondent: Stephen Grootenboer, Agent

Place and Date of Hearing: By Teleconference

September 28, 2018

REASONS FOR DECISION AND ORDER:

A. Overview:

1On August 26, 2017 Dr. C, an emergency room physician, submitted a medical condition report to the Registrar about the appellant, citing unstable mental or emotional illness and drug dependence, which triggered a suspension of the appellant’s driving privilege. By a letter dated August 30, 2017, the Registrar wrote to advise the appellant of the suspension, noting the appellant may have substance use/abuse and psychiatric conditions which may affect her ability to drive. The Registrar asked for a Substance Use Assessment form and a Mental Health Assessment form to be completed by the appellant’s physician.

2The appellant moved from one region to another in Ontario more than two years ago. Since that time, she has attended a number of walk-in clinics in the region, but has had limited continuity of her care with primary care physicians in her community.

3Dr. S., a psychiatrist the appellant met only once, wrote a letter dated October 4, 2017 concerning her condition. This letter was submitted to the Registrar on April 18, 2018.

4The appellant appealed the suspension to the Licence Appeal Tribunal on August 10, 2018.

5As the letter received at the Ministry by Dr. S. was more than 6 months old, the Registrar asked for up-to-date mental health assessment and substance use forms based on a recent examination before it would reinstate the appellant’s driving privilege. Until very recently, the appellant has not been able to find a new primary care physician who could take her on as a patient. Thus, the appellant has not been able to provide updated mental health assessment and substance use assessment forms.

6For reasons to follow, we find the appellant suffers from a mental or physical condition that is likely to significantly interfere with her ability to drive safely. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

B. ISSUES:

7The issue in this appeal is whether the appellant suffers from a mental or physical disability likely to significantly interfere with her ability to drive a motor vehicle safely.

C. LAW:

8The Registrar has the power under s. 47(1) of the Highway Traffic Act to suspend or cancel a driver’s licence on various grounds.

9Subsection 14(1) of O. Reg. 340/94 (“Regulation”) under the HTA states in part:

(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....

10Section 14(2)(a) of the Regulation allows the Registrar of Motor Vehicles to consider the Canadian Council of Motor Transportation 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 documents.

11Under s. 14(2)(b) of the Regulation, the Registrar 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.

12The 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.

D. EVIDENCE AND ANALYSIS:

Respondent’s Evidence

13The respondent went through the various medical reports that have been submitted by the appellant, including the August 26, 2017 medical condition report by a Dr. C. who reported as follows:

Patient is agitated; overdosed on medication; paranoid/delusional; says is on Suboxone for Percocet use. I cannot rule out mania and psychiatric assessment is needed. I only met today.

14The respondent also referred to the October 4, 2017 report from Dr. S. which noted that the appellant needs to be detoxified from narcotics if she wanted to get her driving licence back.

15The respondent further stated that the report of Dr. S. was more than 6 months old and to date, the Registrar has yet to receive an updated Mental Health Assessment form from the appellant’s treating physician, as requested.

16Furthermore, as the urine toxicology reports submitted by the appellant and received by the Registrar indicated the use of opioids such as Suboxone, methadone and ‘opiates’ in general, the Registrar requested up-to-date information regarding the appellant’s substance use. Until these reports are received, the Registrar’s position is that the appellant’s driving privilege should remain suspended.

17Finally, the respondent submitted that the Registrar’s request for updated mental health assessment report and substance use report is reasonable and is consistent with the CCMTA guidelines on psychiatric disorders (Chapter 14) and on drugs, alcohol and driving (Chapter 15).

Appellant’s Evidence

18The appellant gave a very detailed testimony about her longstanding and ongoing issue with police harassment. The appellant had filed a complaint against the police with the Office of the Independent Police Review Director, but her complaint was dismissed. The appellant testified that her licence was suspended in the past as a result of retaliation by the police who worked in concert with the medical professional to suspend her licence.

19The appellant testified that she does not suffer from any psychiatric disorder other than Post Traumatic Stress Disorder (PTSD), which the appellant pointed out, was not mentioned in the CCMTA guidelines. The appellant also denied having episodes of erratic driving.

20As well, the appellant denied having any substance use issues. The appellant said she suffered for a long time from back pain and severe menstrual pain. The appellant managed to deal with her back pain by losing weight. The appellant stated she had tried to access different programs to address her pain and need for opioids. She stated that when she approached a pain management program, they informed her that she needed an addiction specialist, and when she dealt with addiction programs they told her they did not treat pain.

21The appellant was asked why she was seen by Dr. C. on August 26, 2017. The appellant explained the police came to her apartment and took her to the hospital. The appellant said she did not know why the police were there in the first place. The appellant said she was put on a Form 1, but she also said she was released after she had spent only a couple of hours at the hospital. The appellant stated it is fundamentally unfair for the Registrar to take away her licence based on a report by a doctor who only saw her for 2 or 3 minutes.

22The appellant noted that when her licence was suspended in 2016, Dr. C., her then psychiatrist whom followed her care for over 9 years, was able to help her get her licence back. However, since she moved, she was no longer able to see Dr. C.

23When the panel pointed out that Dr. C. had diagnosed her with bipolar disorder, anxiety disorder and situational stress/crisis on the October 24, 2016 Mental Health Assessment form, the appellant was surprised and stated she was not aware of this before. However, the appellant also noted that Dr. S. who wrote the October 7, 2017 report, stated that there was no evidence of bipolarity so far to him/her, only a history of major depression perhaps with some psychotic features.

24The appellant gave great details about the difficulties she has had finding a new primary care physician. The appellant finally found a physician, approximately two weeks prior to this hearing, whom she is seeing now. The appellant refused to name the new physician as she said her phone is tapped.

25Just prior to the hearing the appellant submitted a report by Dr. J., a gynecologist whom the appellant has seen several times, who said the appellant was taking Tylenol #3 and Percocet, among other medications for her pain.

26Upon questioning, the panel understood that the appellant has been on Suboxone for a probable total period of time of approximately 1 year, prescribed by at least two different clinicians. She was also on methadone for approximately two weeks before starting one of the Suboxone programs. According to the appellant, she is not currently in any formal opioid/addiction program.

27The appellant admitted to abusing Tylenol #1 in the past, taking up to 30 tablets in a day on 6 or 7 occasions. She also stated that she not uncommonly took 3 or 4 tablets of Tylenol #1 at a time, even though the recommended dosage is no more than 2 tablets at a time.

28The appellant also admitted to not taking any of her previous psychiatric medications (prescribed by Dr. C.) for over 2 years. She has obtained thyroid-replacement medications primarily from walk-in clinics since her move. According to the appellant, her new family physician started her on low dose Trazodone (25 mg) at night. Trazodone is an anti-depressant, which is often used off-label as a sleep aid as per Dr. S.’s report.

Panel’s Analysis

29We start by reviewing the various medical reports including the report by Dr. S. dated October 4, 2017, which noted, among other things, that the appellant was suffering from PTSD, depression and anxiety. The report noted that the appellant was previously prescribed a number of anti-psychotic medications and anti-depressants but the appellant stopped all these medications. As noted above, while Dr. S. ruled out bipolar disorder at that time, Dr. S. was nevertheless of the view that the appellant needed to be detoxified from narcotics such as hydromorphone and suboxone if she wanted her licence back.

30We find the testimony given by the appellant with regard to both her medications and treatment program confusing to the point of being unreliable. For instance, we note that the dates of the two different Suboxone clinics referred to at the hearing did not correspond to the dates and ordering physicians of the urine drug toxicology results we had before us.

31We also find her testimony with respect to her driving history is contradictory to the evidence submitted by the respondent. At the hearing, the appellant denied having episodes of erratic driving. However, documents submitted by the respondent included a report from the police indicating the appellant demonstrated erratic behaviour during an incident on April 28, 2016, and an earlier Medical Condition Report filed by an emergency room physician on June 12, 2016, stating that the appellant has unstable emotional illness and was found by police driving erratically on the road.

32We are also concerned that the appellant admits to having stopped taking any stabilizing psychiatric medication (for depression, anxiety and/or bipolar disorder) for the past 2 years, and had not restarted any until very recently. Our concern is further reinforced by the appellant’s apparent lack of insight into her mental condition, and her apparent lack of knowledge that her long time psychiatrist, Dr. C., had diagnosed her with bipolar disorder.

33In conclusion, the appellant’s lack of insight into her condition, the lack of stability in her mental health since she last saw Dr. S., and Dr. S.’s October 2017 report noting the need for the appellant to be detoxified from narcotics and to be followed at an outpatient psychiatric clinic, all lead us to conclude that the appellant does suffer from a mental condition that affects her ability to safely drive.

34The Registrar has a duty to ensure public safety for all users on the road. The Registrar’s request for additional medical reports in order to assess the appellant’s ability to drive is a reasonable one given the circumstances of this case.

E. OrdER:

35We confirm the decision by the Registrar to continue to suspend the appellant’s driving privilege under section 47(1) of the HTA.