Date: 2020-09-02

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:

Sergio Donatone

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Erica Weinberg, Member

APPEARANCES:

For the Appellant: Sergio Donatone, self-represented

For the Respondent: Kyle Biel, agent

Heard by Teleconference: August 20, 2020

A. Overview:

1The appellant appeals the suspension of his Class G driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2The issue in this appeal is whether the appellant’s ability to drive safely is likely significantly affected by a mental health condition.

3Having considered all of the evidence and for the reasons that follow, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.

B. ISSUES:

4The issue in this appeal is whether the appellant has a medical condition, specifically a mental health condition, which is likely to significantly interfere with his ability to drive a vehicle safely.

5To answer that question, I will address the following issues:

a. Is the appellant a person living with a mental health condition?

b. If the appellant is a person living with a mental health condition, is this condition likely to significantly interfere with his ability to drive a vehicle safely?

C. LAW:

6Under the HTA the Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on the highway. In this case the Registrar acted pursuant to s. 47(1) of the HTA and s. 14(1)(a) of O. Reg. 340/94 under the HTA (the “Regulation”).

7Under s. 14(2)(b) of the Regulation, the Registrar may require a driver to provide satisfactory evidence that he or she is able to drive safely.

8A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.

9On appeal, the Registrar has the burden of establishing that the licence should remain suspended on a balance of probabilities.

10Following 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:

a. Is the appellant a person living with a mental health condition?

11I find that the appellant is a person living with a mental health condition.

12Dr. H., the appellant’s psychiatrist “on and off” since 2017 detailed in his July 27, 2020 Mental Health Progress Report (“MHP report”) that the appellant has the mental health diagnoses of:

i. Bipolar disorder by history;

ii. Marijuana abuse disorder; and

iii. Marijuana-induced mood disorder.

13The appellant testified that he: has bipolar disorder; has a history of using and abusing marijuana (cannabis); was abstinent from cannabis from 2008 until 2017 or 2018; and that cannabis “definitely” aggravates or affects his mental health.

14Based on the evidence, I find that the appellant is a person living with a mental health condition.

b. If the appellant is a person living with a mental health condition, is this condition likely to significantly interfere with his ability to drive a vehicle safely?

15The Registrar has the burden of establishing that the appellant’s mental health condition is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Registrar has met that burden.

16The appellant has lived with bipolar disorder for many years, has tried a number of different medications for this condition and has been admitted to hospital on a number of occasions in the past for mental health reasons. The appellant stated that his only hospital admission for his mental health this calendar year was in late April 2020.

17The appellant stated that his “episodes” (i.e. mania) tend to occur either when he weans off his mental health medication or with cannabis use.

18Sometime around May 2020 the appellant was increasingly bothered by poor sleep and other symptoms he felt were side effects from his medication. He elected, without approval from either his psychiatrist or family doctor, to wean himself off medication. The appellant thought the last dose of medication he took was during the first week of June 2020. The appellant stated that his last date of cannabis use was likely June 10, 2020.

19On the evening of June 11, 2020 the appellant stated that he was driving his vehicle when he realized he was having a manic episode. He pulled into a gas station where some of his friends saw him, and they parked his car in a parking spot. The appellant stated he then proceeded to walk across the street to a restaurant, where he was given a sandwich to eat. At some point the police were called and the appellant was taken to the emergency room (“ER”) of a hospital.

20The appellant submitted ER physician Dr. B.’s notes recorded at 11:35 p.m. on June 11, 2020. In the note, Dr. B. stated that the police were called as the appellant was walking around a restaurant in a threatening fashion. The police thought the appellant may have been under the influence of drugs, so they brought him to the ER department. In addition, Dr. B. wrote that he: was not going to take the appellant’s licence away at this time; was going to discuss this case with psychiatrist Dr. K. the next day; and would fill out the “licence removal” after speaking with Dr. K.

21The appellant stated that: he was in the ER on June 11, 2020 for “an hour or so” before being discharged home; received an injection in the ER and some pills for home; and that Dr. B. recommended that he was “to stay away from driving”.

22On the morning of June 13, 2020, Dr. B. wrote in his notes, “I am now taking away his license”. A Medical Condition Report was faxed to the Ministry, indicating that the appellant has or appears to have a psychiatric condition or disorder currently involving any of the following: acute psychosis, severe abnormalities of perception, or has a suicidal plan involving a vehicle or an intent to use a vehicle to harm others.

23According to the appellant, sometime between June 12 and June 18, 2020 he went to a mental health clinic where he began treatment with a long-acting (every 4 weeks) intramuscular depot injection of a medication for his bipolar disorder. The appellant stated that he has now received his third injection of this medication.

24On July 27, 2020 the appellant had a virtual appointment with psychiatrist Dr. H. In his MHP report, Dr. H. indicated that the appellant: had been abstinent from cannabis since June 2020; agreed to follow-up with an addiction counsellor; and had been compliant with his long-acting depot injection.

25A Substance Use Assessment form completed by Dr. H. on August 12, 2020 indicated that the appellant has mild substance use disorder (cannabis use disorder) and that he started addiction counselling which is ongoing. The appellant stated that he has had his “intake” appointment and that the formal addiction counselling begins before the end of August 2020.

26Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “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.

27The Registrar is of the opinion that in order to reinstate the appellant’s licence, it requires confirmation of a longer period of mental and emotional stability. As of the date of the hearing, it has been just over two months since the appellant abstained from cannabis and has been regularly getting depot injections of long-acting medication.

28The CCMTA Standards describe important considerations when making a driver fitness evaluation. In particular they state that, “An individual’s level of insight is a critical consideration when assessing the risk of an episodic impairment of functional ability due to a psychiatric disorder” and “an individual cannot compensate for an episodic impairment”. In medical terms, an episode of acute mania, psychosis or severe abnormality of perception would be considered an acute psychiatric event or disorder, which may result in episodic impairment as per the CCMTA Standards.

29As defined by the CCMTA Standards, insight means that a driver:

i) is aware of their medical condition;

ii) understands how the condition may impair their functional ability to drive; and

iii) has the judgment and willingness to comply with their treatment regime and any conditions of licensing.

30The appellant asserts that he is aware of his medical condition and understands that he should not drive if experiencing mania. He stated that this is why he pulled into the gas station on the evening of June 11, 2020.

31The appellant’s treating psychiatrist, as per his July 27, 2020 MHP report, deemed the appellant’s judgment to be “fair”.

32Based on the evidence before me, l find that the appellant lacks good judgment, has demonstrated poor willingness to comply with his treatment regime and has limited insight into his mental health condition. The appellant is aware that weaning or stopping his mental health medication without direction from his treating physician has resulted in acute mania on more than one occasion and that his use of cannabis aggravates his mental health condition. Yet, given his history of cannabis use disorder and cannabis-induced mood disorder, the appellant chose on his own accord to restart cannabis use 2-3 years ago, and recently weaned off his mental health medication resulting in an acute manic episode. In addition, the appellant testified that in the past he might not take his medication on the weekends, further demonstrating a history of non-compliance with treatment. Non-compliance with treatment, discontinuing prescribed medication without direction from a treating physician and using a substance known to induce manic symptoms demonstrate poor or limited insight into his mental health condition.

33Moreover, the appellant’s treating psychiatrist has not yet supported the appellant’s return to driving. In fact, in his MHP report Dr. H. stated, “I do not see any cognitive impairment that would be a restriction for him to drive a car, except for the fact that when he does marijuana he does experience manic symptoms. He has been advised that once he is able to remain abstinent from marijuana between 3-6 months, I will be willing to complete his application requesting his licence to be reinstated.”

34Based on the totality of the evidence before me, I find that the Registrar has discharged its onus of establishing that the appellant’s mental health condition is likely to significantly interfere with his ability to drive a vehicle safely. I find on a balance of probabilities that the appellant’s current two months of mental and emotional stability is an insufficient length of time to establish that the appellant’s mental health condition will not significantly interfere with his ability to drive a vehicle safely. Since April 2020 the appellant has: been hospitalized for mental health reasons; been non-complaint with his treatment; had an episode of acute mania; had more than one interaction with police; and only recently stopped using cannabis, which he is aware may induce manic symptoms. The appellant’s recent actions demonstrate limited insight into some aspects of his mental health condition, particularly judgment and willingness to comply with his treatment regime. An individual’s level of insight is a critical consideration when assessing the risk of an episodic impairment of functional ability due to a psychiatric disorder. In addition, the appellant currently does not have support from his treating psychiatrist for a return to driving.

35I acknowledge that stress from the lack of a driver’s licence may aggravate the appellant’s mental health condition, however driving is a privilege, not a right.

36While I understand the practical challenges that can result from a licence suspension, I must apply the provisions of the HTA and Regulation, keeping in mind the objective of ensuring public road safety.

E. ORDER:

37For the reasons set out above, pursuant to subsection 50(2) of the HTA, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.