S.P. v. Registrar of Motor Vehicles, 2018 CanLII 127578

S.P. v. Registrar of Motor Vehicles

Date: 2018-12-11

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:

S.P. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Erica Weinberg, M.D., Member Avril A. Farlam, Vice-Chair

Appearances: For the Appellant: S.P., Self-represented For the Respondent: Sanjay Kapur, Agent

Heard by Teleconference: November 23, 2018

REASONS FOR DECISION AND ORDER

A. Overview:

1The appellant appeals the September 16, 2018 suspension of her driver’s licence by the Registrar of Motor Vehicles (the “Registrar”). Pursuant 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 Registrar suspended the appellant’s driver’s licence on September 16, 2018, under s. 47(1) of the HTA due to receiving a medical report from an emergency room physician diagnosing the appellant with substance use disorder (alcohol) and a psychiatric illness.

B. PRELIMINARY MATTER:

2At the hearing the Registrar’s agent confirmed that the Registrar was no longer of the view that the appellant has alcohol use disorder (dependence/addiction) but asked that the appellant’s alcohol use be a factor taken into consideration as it relates to the appellant’s psychiatric condition.

C. ISSUE:

3The issue in this appeal is whether the appellant has a psychiatric illness/ condition, specifically major depressive disorder, likely to significantly interfere with her ability to drive a motor vehicle safely. In order to answer that question, we will address the following issues:

(a) Does the appellant suffer from major depressive disorder?

(b) Is the appellant’s psychiatric illness, specifically major depressive disorder, likely to significantly interfere with her ability to drive safely?

D. CONCLUSION:

4For the reasons that follow, we find that the appellant suffers from a psychiatric illness, specifically major depressive disorder, but that this illness is not likely to significantly interfere with her ability to drive safely. Accordingly, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

E. LAW:

5The 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 (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

6One 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

7Section 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.

8Under 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.

9The 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. EVIDENCE AND ANALYSIS:

(a) Does the appellant suffer from major depressive disorder?

10Based on the admission of the appellant and the report of her treating psychologist Dr. B., we find that the appellant has major depressive disorder.

11The appellant admitted in her testimony that she has major depressive disorder but said that this does not affect her ability to drive safely. She explained that she is 21 years old, has been prescribed medication for this condition by her family physician Dr. S. for the past eight years, takes the prescribed medication, and that the medication is not causing her any problems. The appellant said her condition is stable. She sees her family physician regularly every one to two months. In addition, she has been treated by Dr. B., a psychologist, for the last five years and has developed coping strategies which she uses daily. She admitted to suicidal thoughts on occasion, mostly self-harm in nature, but has never acted on them and has never had a plan to do so. The appellant testified that she has never had a suicidal plan involving a vehicle or an intent to use a vehicle to harm others.

12On two occasions in 2018 (May, September), the appellant said that she felt overwhelmed and drove herself to the hospital to seek treatment. It was during the trip to the hospital on September 1, 2018 that she was interviewed by Dr. Y., an emergency room physician, who the appellant says saw her for about 10 minutes and asked her questions about alcohol, even though she had not consumed alcohol that day. The appellant testified that on this occasion she was hospitalized for three days, her medication was changed and she attended group therapy. She stated that this hospitalization was not dissimilar to other previous hospitalizations when she felt overwhelmed. The appellant testified that she works full-time and lives at home with her parents.

13The appellant stated she has never had a motor vehicle accident or driving charge. The appellant said that Dr. B. and Dr. S. are supportive of her driving. In cross-examination, the appellant admitted that in the past year her medical condition has worsened symptomatically and that is why she drove herself to the hospital on two occasions when she felt she needed treatment.

14The appellant’s father testified that the appellant is a responsible young adult, a good driver and arranges for a designated driver if she is going out and will be consuming alcohol. Her father testified that when she is in a down state, the appellant is forthcoming about it. He stated that he has complete trust in her, she was a good student and she has been able to complete specialized education despite her health which has led to a full-time job in her field. The appellant’s father was not cross-examined.

15The Registrar filed three medical reports. In a Medical Condition Report, dated September 1, 2018, Dr. Y., an emergency room physician, diagnosed major depressive disorder and substance use disorder (alcohol). Although the Registrar no longer relies on substance use disorder as a reason for suspension of the appellant’s licence, in September, 2018 the Registrar asked for completion by the appellant’s physician of a Substance Use Assessment report. In the completed Substance Use Assessment report dated September 27, 2018, Dr. S., the appellant’s family physician since 2009, checks off the condition ‘alcohol misuse’. Attached blood work, including the required biochemical markers, are all within normal limits. In a separate letter, dated September 27, 2018, Dr. S. states that “She denies to me, ever drinking and driving. Her MCV blood work for the past 12 months has been normal….her latest blood test was on September 26, 2018 and shows a normal result.” Nowhere in this letter does Dr. S. comment on the appellant’s major depressive disorder.

16In a Mental Health Assessment report, dated October 10, 2018, Dr. B., the appellant’s psychologist since 2013, diagnoses major depressive disorder, rates her stability as “moderate”, notes current symptoms of anxiety, depression, suicidal ideation/thoughts of self-harm, and records two hospitalizations in the last 12 months. Furthermore, in a letter, dated October 9, 2018, appended to the Mental Health Assessment report, Dr. B. records that based on her clinical impression of the appellant dating back to 2013, a two hour interview conducted that week and psychometric testing, the appellant does not present with any personality traits indicative of poor impulse control or problems making responsible decisions, and does not pose a physical threat to others. Dr. B. notes that the appellant, like many young people her age, has admitted to using alcohol in excess. However she (the appellant) is acutely aware of the responsibility that comes with having a driver’s licence: “I do not question her truthfulness, her sincerity or her ability to make responsible choices when it comes to the safe operation of a motor vehicle.”

(b) Is the appellant’s psychiatric medical condition, specifically major depressive disorder likely to significantly interfere with her ability to drive safely?

17We find that although the appellant does suffer from major depressive disorder, this medical condition is not likely to significantly interfere with her ability to drive. Therefore, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

18It is clear from the evidence that the appellant’s medical condition is ongoing and fluctuates. However, the appellant has insight into her condition as demonstrated by the fact that she drove herself to the hospital on two occasions in 2018 to seek treatment when she felt she needed it. There was no evidence from the respondent that her functional abilities are impaired. The appellant has the support of her treating psychologist and her family doctor. She is under structured medical supervision from both of these health care professionals and sees them regularly. The appellant has the support of her parents. Her father testified that the appellant is a responsible young adult who does not drink and drive and who, when in a down state, is forthcoming about it and does not drive because she would not be going out. We accept the appellant’s testimony that she takes the medication prescribed by her doctor, that the medication is not causing her any problems and that she does not have any suicidal plan, including a suicidal plan involving a vehicle or an intent to use a vehicle to harm others, and has never acted on any of her self-harm suicidal ideations. There was no evidence submitted that the appellant is psychotic.

19The Registrar submits that the appellant’s major depressive disorder is severe enough that she should not be permitted to drive at this time. The Registrar filed the guidelines contained in the CCMTA Medical Standards for Drivers (the “Standards”) with respect to “psychiatric disorder – all drivers” (chapter 14), but the Registrar’s agent conceded at the hearing that Guideline 14.6.1 is not supportive of the Registrar’s position and it is not relied on in this appeal. Instead, the Registrar relies on the internal Ministry policy requiring a six month period of stability if there is more than one hospitalization for a specific condition in a 12 month period. Based on the Registrar’s position at the hearing we decline to apply Guideline 14.6.1. The internal Ministry policy referred to by the Registrar’s agent is a policy, not having the force of law, and was not provided to us at the hearing.

20Of the three medical reports filed by the respondent, we find that Dr. B., the appellant’s treating psychologist, is best qualified to assess and objectively report on the appellant’s current medical condition in dispute (major depressive disorder), and we prefer Dr. B.’s evidence over that of Dr. Y., the emergency room physician. Dr. B. is the appellant’s treating psychologist and Dr. B.’s report, with clinical impressions dating back to 2013 and her conclusions are supported by a very recent two hour clinical interview and concomitant psychometric testing. Both the respondent and the appellant relied on Dr. B.’s report in their submissions. We find that Dr. B.’s report, dated October 9, 2018, and the attached letter from Dr. B., dated October 10, 2018, support the appellant’s submission that she is able to drive safely, and we accept Dr. B.’s evidence that she does not question the appellant’s ability to drive and make responsible choices when it comes to the safe operation of a motor vehicle.

21We find based on the evidence, that the appellant’s medical condition, specifically major depressive disorder, is not likely to significantly interfere with her ability to drive safely.

G. ORDER:

For 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 set aside.