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: 2020-05-01

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 that Act – to suspend a licence.

Between:

Hamsharan Mahalingam Appellant

And

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

PANEL: Dr. Peter Savage, Member

APPEARANCES:

For the Appellant: Hamsharan Mahalingam, Self-represented For the Respondent: Stella Velocci, Agent

Heard by Teleconference: April 15, 2020

REASONS FOR DECISION AND ORDER

A. OVERVIEW

1This is an appeal from a decision of the respondent, the Registrar of Motor Vehicles (the “Registrar”), to suspend the appellant’s class G drivers licence because the appellant suffers from drug abuse causing acute brain injury (ABI). The appellant was notified of the suspension by a letter from the Registrar dated January 3, 2020.

B. ISSUE

2The legal issue for the Tribunal to determine is whether the appellant suffers from a medical condition, specifically, substance abuse and ABI, which is likely to significantly interfere with his ability to drive safely.

C. CONCLUSION

3For the reasons that follow, the Tribunal finds that the respondent does suffer from a medical condition likely to significantly interfere with his ability to drive and affirms the decision by the Registrar to suspend the appellant’s class G driver’s licence.

D. LAW

4The Registrar has the authority under s.47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), to suspend or cancel a driver’s licence for any grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (g) states that a licence maybe suspended for “any other sufficient reason not referred to in clause (d), (e), or (f).”

5One 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.

6Subsection 14(1)(a) of O. Reg. 340/94 enacted under the HTA requires that a holder of a driver’s licence must not suffer from “any…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 O. Reg. 340/94 allows the Registrar to consider the CCMTA Medical Standards for Drivers when determining whether the requirements of s. 14(1) are met. The CCMTA Standards are not binding on the Minister of Transportation or on this Tribunal but may be persuasive.

8The Registrar has the burden of establishing on a balance of probabilities that one or more grounds for suspending a driver’s licence has been made out.

9Pursuant to section 50(2) of the HTA, after a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar.

E. THE EVIDENCE AND ANALYSIS

10The Registrar outlined the legislation that allowed the ministry to suspend the licence.

11The Registrar received an unsolicited medical report from Dr. Dhillon of the West Park Health Care Centre dated May 01, 2019. The report stated the appellant had suffered an anoxic brain injury and this injury may cause cognitive impairment that affects attention, judgement and other effects that will result in substantial limitation of his ability to perform the activities of daily living.

12The Registrar sent a letter to the Appellant May 27, 2020 informing him of the report and suspending his G driver licence. The letter included a cognitive impairment questionnaire to be filled out by his healthcare provider.

13On September 12, 2019 Dr. Jim Tsang, the appellant’s family doctor, completed the cognitive assessment questionnaire for the appellant. He noted at the time of the assessment there was no cognitive impairment. He indicated that any residual impairment was likely to resolve in less than 3 months. He felt that a functional driving assessment was not needed. He however noted the ABI was due to toxic encephalopathy. He included drug screening reports that showed no illicit drugs were evident in the appellant’s blood.

14On October 15, 2019, the Registrar sent a letter to the appellant indicating he had reviewed the reports sent in by Dr. Tsang and that his driving privileges remained suspended. This letter included a cerebrovascular disease and traumatic brain injury questionnaire that Registrar required to be filled out.

15On November 24, 2019 the appellant saw Dr. Tsang who filled out the cerebrovascular disease questionnaire. He noted in a written note that the appellant suffered an ABI from toxic encephalitis related to cocaine ingestion. He also noted slight cognitive impairment and now indicated that a functional assessment (driving road test) was required.

16On January 3, 2020 the respondent sent the appellant a letter indicating his licence remained under suspension. This letter required the appellant to have a substance abuse questionnaire filled out by his medical care provider and it also noted that he would require a functional driving assessment.

17On April 13, 2020, Dr. Tsang filled out the substance use assessment. He noted the appellant had a severe substance use disorder. He noted the substances that were involved were alcohol and cocaine. He noted the appellant had abstained from alcohol for 6 to 12 months and that he had abstained from cocaine for less than 6 months. He noted the appellant had completed a program for the management of his ABI. He did also note that on March 3, 2020 there was a positive drug test for cocaine. A follow up test on March 31, 2020 was negative for any illicit drugs.

18The Registrar sent a letter April 15, 2020 notifying the appellant that his licence remained under suspension

19The Registrar drew my attention to the recommendations of the CCMTA. The Registrar pointed out the dangers of driving with an ABI or a substance use disorder. The registrar drew my attention to s. 6.6.1 of the CCMTA Standards. It noted that in order to have the driver’s licence returned the appellant’s cognitive functions for driving must not be impaired and if a functional driving test had been recommended the test needs to show the cognitive functions needed for driving were not impaired. The Registrar drew my attention to s. 15.6.3 of the CCMTA Standards, which recommends a 12-month period of abstinence from substance as a criteria of remission. Alternatively, completion of an approved rehabilitation program may reduce the time period required to 6 months of abstinence.

20The Registrar pointed out that the CCMTA Medical Standards were drafted by a group of road safety experts from across Canada. They made recommendations regarding the effect of medical conditions on the ability to drive a motor vehicle safely. The Registrar noted that the recommendations of the CCMTA were recommendations and not the law.

21The appellant testified that on the night he went to hospital, he fell asleep in his car while it was parked at a gas station. His friends located him and found him confused and disoriented. They called an ambulance and he was taken to hospital. He testifies he doesn’t know what happened but he thinks he may have hit his head getting into his car. He testified that he had not used cocaine in the week prior to his hospitalization. He went on to testify the Occupational Therapist treating him in the rehab hospital thought he was fit to drive. The rehab doctor, however, reported his condition to the Registrar.

22The appellant testified he is no longer using cocaine and the last time he took some cocaine was at a Christmas party in December 2019. He testified that the positive drug test on March 3, 2020 was a result of being near another person who was using cocaine. The appellant testified he has not used alcohol since his hospitalization in April 2019. The appellant testified that while he has not been involved in a rehab program for drug and alcohol, he has taken steps to change his life. He has changed some of his friends and he is living with his family. The appellant testified that he has been punished enough and really doesn’t need a rehab program.

23The appellant testified he is better now and is not taking any street drugs. He has support at home. He sees no reason that he should have to take a functional driving test and he feels the suspension should be set aside.

F. CONCLUSION

24Based on the evidence presented, and on a balance of probabilities, I find that the appellant had an acute brain injury due to substance abuse and that this condition is likely to significantly interfere with his ability to safely drive a motor vehicle. I accept the evidence submitted by the appellant confirming progress he has made in the treatment of his ABI and substance abuse disorder, however I agree with the Registrar’s submission that not enough time has passed to be satisfied the danger due to these conditions may not recur. I accept the recommendation for a functional driving test from Dr. Tsang. I do not accept the appellant’s explanation of the cause of a positive urine test on March 3, 2020. I take note of the CCMTA Standards suggesting a 12-month period of abstinence as well as the need of a favorable functional driving assessment.

25Pursuant to subsection 50(2) of the HTA I confirm the Registrar’s decision to suspend the appellant’s class G driver’s licence.