I.C.G. v. Registrar of Motor Vehicles, 2018 CanLII 50222

Date: 2018-05-11

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:

I.C.G.

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Katie Awad, Member Joanne E. Foot, Member

Observing: Dr. Peter Savage

Appearances:

For the Appellant: I.C.G., Self-represented

For the Respondent: Sanjay Kapur, Agent

Place and date(s) of hearing: By Teleconference April 18, 2018

REASONS FOR DECISION AND ORDER

A. OVERVIEW

1The appellant is a 68-year-old man whose driver’s licence was suspended pursuant to s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”) due to a psychiatric condition. The appellant developed a major depressive disorder, attempted suicide on two occasions, and was hospitalized in January and February 2018. As a result of the diagnosis and hospital admissions, the Registrar of Motor Vehicles (the “Registrar”) suspended the appellant’s driver’s licence under s. 47(1) of the HTA, effective March 16, 2018.

2The question for our determination is whether the appellant suffers from a mental or physical condition that is likely to significantly interfere with his ability to drive safely.

3For the reasons set out below, we find that the appellant does not suffer from a mental or physical condition to an extent that is likely to significantly interfere with his ability to drive safely.

4For these reasons, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

B. ISSUES

5The issue in this appeal is whether the appellant suffers from a mental or physical condition that is likely to significantly interfere with his ability to drive safely.

6To answer that question, we will address the following issues:

a. Does the appellant have a mental or physical condition?

b. Is the appellant’s mental or physical condition, if any, likely to significantly interfere with his ability to drive safely?

C. LAW

7The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence. In this case, s. 47(1)(g) is the relevant ground for suspension. It states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

8One 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 disability 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;

9According to s. 14(2)(a) of the Regulation, if the Minister of Transportation is determining whether the requirements of s. 14(1) are met, the Minister may take into consideration the Canadian Council of Motor Transport Administrators (“CCMTA”) Medical Standards for Drivers. Similarly, the Tribunal may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.

10The Registrar has the burden to establish the grounds for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the decision or order of the Registrar.

D. ANALYSIS

a. Does the appellant suffer from a physical or mental condition?

11The Ministry of Transportation learned of the appellant’s condition by way of a Driver Information Request for Driver’s Licence Review dated February 4, 2018 completed by Toronto Police Services. This form indicated that the appellant had attempted to commit suicide by cutting himself while in a parked vehicle. Shortly after receipt of this information, the Registrar corresponded with the appellant indicating that his driver’s licence was under review and requesting that he have two forms completed by his doctor, specifically, the Mental Health Assessment Form and the Medical Report Form.

12The completed Mental Health Assessment Form dated February 16, 2018 indicates “Major Depressive Disorder”. Dr. S.B., psychiatrist, in completing this form also checks the boxes for “Depressive Symptoms” and “Suicide Attempt (within the last year)”. The form requests information relating to the current status of the condition. Dr. S.B. checks the box for “Improving with on-going symptoms”, with the on-going symptoms characterized as “Mild”. This form also indicates that the appellant has been hospitalized twice in the past 12 months as a result of his psychiatric illness. In the Medical Report Form, also dated February 16, 2018, Dr. S.B. ticks the box for “Psychiatric Disorders”. In the summary portion of this form, Dr. S.B. writes that the appellant “had taken overdose and also lacerated self while depressed.”

13Both the Mental Health Assessment Form and the Medical Report Form disclose that the appellant suffers from a depressive disorder. We note that a relatively short period of time has elapsed between the appellant’s second suicide attempt and the hearing date – slightly over 10 weeks. In a letter to the Registrar dated April 9, 2018, Dr. S.B. writes that the appellant is not depressed, is eating and sleeping well, is not weepy, is not suicidal, is working on a full-time basis, and is fully compliant with his anti-depressant medications. This is evidence that the appellant has made significant strides towards fully regaining his health. On the other hand, he continues to be followed by this psychiatrist on a monthly basis and has begun working with a psychotherapist.

14We find that the appellant suffers from a depressive illness, albeit far less severe than in the early months of this year.

b. Is the appellant’s physical or mental condition, if any, likely to significantly interfere with his ability to drive safely?

15Having found that the appellant suffers from a depressive illness, we now must consider whether this condition is likely to significantly affect his ability to drive safely.

16The Registrar has the burden to establish how the appellant’s medical condition will interfere with his ability to drive safely. The Registrar did not lead any evidence linking the appellant’s depressive illness to his ability to drive safely.

17However, the Registrar’s agent (the “Agent”) expressed concern about the stability of the appellant’s condition, referring to the box ticked in the Mental Health Assessment Form indicating “Improving with on-going symptoms”. Other choices in that portion of the form not chosen by Dr. S.B. are “Stable – symptoms resolved” or “Stable with ongoing symptoms”. We accept that at the time this form was completed, less than two weeks after the appellant’s second suicide attempt, the appellant’s condition was not stable.

18As evidenced by Dr. S.B.’s April 9, 2018 letter, the evidence is clear that the appellant has now achieved greater stability, including his return to work, his improved mood, and the steps taken to safeguard his mental health namely, moving away from his difficult landlord and seeking the ongoing assistance of mental health professionals. The appellant confirmed these matters in his oral testimony. In the letter to the Ministry dated March 16, 2018, Dr. S.B. described the appellant’s mood as “level” and went on to note that “he has no thoughts of self-harm”.

19The Registrar takes the position that the appellant is required to demonstrate a six-month period of mental and emotional stability before his driver’s licence can be reinstated. The Agent acknowledges that this requirement is not included in the CCMTA Medical Standards for Drivers but submits that an internal policy of the Ministry of Transportation requires this. The Agent further submits that s. 14(2)(b) of the Regulation permits the Ministry of Transportation to impose its own policies.

20This provision of the Regulation is set out below:

14 (2) In determining whether an applicant for or a holder of a driver’s licence of any class meets the qualifications described in subsection (1), the Minister, …

(b) may require the applicant or holder to provide evidence satisfactory to the Minister that he or she is able to drive a motor vehicle of the applicable class safely, including,

(i) any reports of examinations under section 15, and

(ii) any additional medical information.

21The key words to consider here are “…the Minister… may require … [the] holder … to provide evidence satisfactory to the Minister … “ [emphasis added]. This provision clearly relates to the ability of the Minister to require the production of evidence. It is our strong view that the Minister, pursuant to this section, may require an applicant to provide evidence that he can drive a motor vehicle safely, this section does not permit the Minister to require the applicant to show a six-month period of stability before reinstatement of his licence.” It does not appear to us that s. 14(2)(b) gives the Ministry of Transportation the authority to impose an internal policy as submitted by the Agent. In any event, such a policy would not be binding on the Tribunal and we choose not to apply it in this case.

22Dr. S.B., the appellant’s psychiatrist, is strongly of the view that the appellant is able to drive safely. He expresses this first in a letter to the appellant’s employer dated February 21, 2018 where he writes that the medication prescribed to the appellant “will not affect his driving and he is able to operate a motor vehicle”. In the letter to the Ministry dated March 16, 2018 Dr. S.B. states “I do not feel that he is a safety risk while operating a motor vehicle and feel that his licence can be reinstated”. In a further letter to the Ministry dated April 9, 2018 Dr. S.B. writes “It is my opinion that [the appellant] is at this point safe to operate a motor vehicle in the province of Ontario.” These letters are strong evidence that the appellant’s condition will not significantly interfere with his ability to drive safely.

23There may well be cases where persons who have attempted suicide pose a danger to others as well as themselves. This is not such a case. This is the first mental health crisis suffered by the appellant in 68 years. He received immediate medical treatment and showed significant recovery very quickly. He continues to see both a psychiatrist and a psychotherapist regularly and is wholly compliant in taking his medications. He rarely drinks and does not take illicit drugs. Moreover, he has changed his rental house living situation which is what triggered the depressive episode. He is employed at a job that he loves and is meaningful to him. He lives with his wife and values his daughters and grandchildren. His psychiatrist strongly supports his return to driving and the Registrar has not provided any evidence linking the appellant’s depressive illness to his ability to drive safely.

24After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant does not suffer from a physical or mental condition that is likely to interfere significantly with his ability to drive a motor vehicle safely.

E. ORDER:

25For 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.