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:
Hung Quach
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATOR: Dr. Erica Weinberg, Member
APPEARANCES:
For the Appellant: Hung Quach, self-represented
For the Respondent: Sonia De Santis, agent
Heard by Teleconference: October 27, 2020
A. Overview:
1The appellant appeals the suspension of his Class C 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 is a person living with a mental health condition that is likely to significantly interfere with their ability to drive safely.
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. PRELIMINARY ISSUE:
11At the hearing of this matter (“this hearing”), the appellant entered as evidence a document that was prepared by Ontario’s Consent and Capacity Board (the “Board”). The document indicated that the Board had rescinded the appellant’s “certificate of involuntary admission or renewal or continuation”. The appellant relied on this document in support of his argument that he does not suffer from a mental health condition.
12The document appeared on its face to be incomplete. Although at this hearing the agent for the respondent made a comment to the appellant regarding the missing portion(s) of the document and thus appeared to be aware that the document was incomplete, the agent took no further steps to obtain the complete document.
13Upon conclusion of this hearing and a review of the documentary evidence, the Tribunal was of the view that in light of the fact that the appellant introduced into evidence only a portion of the Board’s disposition, it required the entire document in order to arrive at a fair and just disposition that is consistent with the Tribunal’s public safety mandate. While the Tribunal has the authority to issue interim orders requiring parties to produce documents to it, the Tribunal is also aware that the Board’s decisions are posted on, a publicly available website. The Tribunal therefore obtained a copy of the Board’s decision relating to the appellant and provided the parties an opportunity to make submissions on the impact, if any, the decision has upon this matter.
14The appellant in his response asserted that all of his brother’s accusations, which are detailed in the Board’s decision, are false and that his mother has been doing inappropriate things due to her advanced age.
15The appellant further stated that the Board: found that he was not mentally ill; released him from hospital because he was found not mentally ill; but yet confirmed his incapacity to consent to treatment.
16The respondent in its response stated that as was discussed at this hearing, the mental health condition schizophrenia has been confirmed within the decision.
17Furthermore, the respondent stated that it was of the opinion that the finding that someone does not need to be institutionalized for a mental health condition does not prove that they are safe to drive.
E. EVIDENCE AND ANALYSIS:
a. Is the appellant a person living with a mental health condition?
18I find on a balance of probabilities, that the appellant is a person living with a mental health condition.
19Furthermore, for the reasons that follow, I find on a balance of probabilities that although the appellant truly believes his testimony is accurate, it is not reliable (i.e. he is unable to correctly observe, process, interpret, retain or recall information correctly).
20In January 2019, the appellant was living in his mother’s house. His older brothers were not living there.
21The appellant testified that on an evening in early January 2019, his mother was having breathing difficulties and an ambulance was at the house. He denied knowing who called the ambulance. He further testified that he called one of his brothers who then came to the house, had a “minor” argument with this brother and the police were called. The appellant denied knowing who called the police. The appellant stated that the police handcuffed and arrested him because his voice was elevated, he was not violent and once he calmed down the police took him to the hospital.
22The appellant stated that he was seen in the emergency department of the hospital that evening and was then forced to stay in hospital for 10 days. He stated he received several “Forms” [as per the Mental Health Act, R.S.O. 1990, c. M.7 (the “MHA”)] and at least one of these Forms revoked his right to refuse treatment and forced him to take injections of medication(s) he did not want to take. The appellant denied knowing the name(s) of the injectable medication(s). The appellant testified that many doctors and nurses were involved in his care “24/7” and that Dr. M. was the main psychiatrist assigned to him during his hospitalization.
23On January 16, 2019 while in the hospital, the appellant had a hearing before the Board to review his involuntary status.
24Furthermore, on January 16, 2019 Dr. M. sent an unsolicited Medical Condition Report (“MCR”) to the Registrar indicating that she was of the opinion that the appellant was suffering from an unstable mental or emotional illness that may make it dangerous for the appellant to operate a motor vehicle.
25On January 17, 2019, the Board determined in writing, as per the one-page document submitted as evidence, that the requirements set out in the MHA were not met at the time of the hearing and “the certificate of involuntary admission or renewal or continuation” was rescinded.
26The appellant testified that prior to his discharge from hospital on January 17, 2019, Dr. M. offered him medication to take at home, but he refused the medication.
27Furthermore, the appellant denied being admitted to hospital prior to or following January 2019.
28For the reasons that follow, I prefer the opinion of the Board and Dr. M. over that of the appellant with regards to the status of the appellant’s mental health.
29The appellant is of the opinion that he does not suffer from any mental health issues and that he is both “mentally and physically fit”. He stated that his family have not expressed concerns regarding his mental health.
30However, the Board’s disposition stated that the appellant’s mother and brother, who testified before the Board, both expressed concerns regarding the appellant’s behaviour or mental health for the previous 10-15 years and that he had refused to go to a doctor regarding this.
31Furthermore, the Board found the appellant’s brother’s testimony to be credible.
32The appellant asserts that Dr. M., a trained psychiatrist who observed the appellant for a number of days during his involuntary admission to hospital, never told him that he was suffering from mental illness. However, the appellant admitted voluntarily at this hearing that Dr. M. wrote the diagnosis of schizophrenia on one of the Forms he received.
33The appellant adamantly denied that he has schizophrenia and stated that Dr. M. was lying and cannot be trusted. The appellant also asserts that because the Board “acquitted” him and he was released from hospital on January 17, 2019 that this shows he is not suffering from a mental health condition.
34The Board’s disposition stated that Dr. M. gave evidence that she spent a significant amount of time discussing with the appellant his mental health diagnosis (a primary psychotic illness of schizophrenia vs. delusional disorder with symptoms that were chronic in nature for around 15 years), the symptoms arising from it, the risks and benefits of treatment with antipsychotic medication, alternatives to treatment and the risk of not having any treatment. In addition, the Board’s disposition commented on the appellant’s historical and documented distrust of doctors.
35Furthermore, the Board’s disposition stated that the appellant was unable to acknowledge the symptoms of a mental illness as it related to him and was unable to acknowledge that he may suffer from the symptoms of a mental illness.
36Moreover, the Board was “convinced, based on clear, cogent evidence” that the appellant “was suffering from a mental disorder at the time of the hearing”. They accepted Dr. M.’s mental health diagnosis of the appellant based upon her observations, her review of recordings submitted by the appellant’s family, the history outlined by his family, supported by the testimony and documentary evidence of his family at the hearing.
37In his response to the Tribunal regarding the Board’s disposition, the appellant asserted that he is of the opinion that if he were found mentally ill, he “would be confined to the hospital and would be injected with all kinds of stuff”.
38However, as per its disposition, while the Board found that the appellant was suffering from a mental disorder, it revoked the appellant’s involuntary status and rescinded his Certificate of Involuntary Admission (as per the statutory criteria in the MHA) based on insufficient evidence that the appellant was suffering from a mental disorder of a nature or quality that likely will result in serious bodily harm to himself or serious bodily harm to another person or serious physical impairment to himself unless he remained in the custody of a psychiatric facility.
39I acknowledge that the appellant believes that he is not suffering from a mental health condition.
40However, based on the totality of the evidence before me, I find on a balance of probabilities that the appellant’s belief that he is not suffering from a mental health condition stems from his actual mental health condition that is a delusion that he is mentally fine. Delusions are fixed false beliefs which are maintained steadfastly even in the face of evidence contradicting them incontrovertibly.
41Furthermore, based on the above, I find on a balance of probabilities that although the appellant truly believes his testimony is accurate, it is not reliable (i.e. he is unable to correctly observe, process, interpret, retain or recall information correctly).
42After a careful consideration of all the evidence available to me, I find on a balance of probabilities 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?
43The 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.
44The Registrar is of the opinion that in order to reinstate the appellant’s licence, it requires a completed Mental Health Assessment form (“MHA form”) confirming the appellant’s mental and emotional stability.
45The appellant testified that his previous family doctor retired “a long time ago” and that he attempted three times to have the MHA form completed by doctors at walk-in type clinics (“WIC”). He stated that these doctors told him that they do not know him and were, therefore, unable to complete the MHA form.
46The appellant asserts that the Board’s decision should “outweigh” or “be a priority” over the request or opinion of the Registrar and stated that being observed for 10 days in hospital is far more rigorous than a 15-minute visit at a WIC. In addition, he stated that the Registrar is missing the reason for his driver’s licence suspension - that it was due to an argument he had with his brother, not a mental health condition.
47However, as per the Board’s disposition, while the paramedics were in the home attending to the appellant’s mother in January 2019, they observed the appellant continuing “to act bizarrely”. This led the paramedics to call police who apprehended the appellant under the MHA and brought him to hospital where he was detained on a Form 1 and later a Form 3 under the MHA.
48The appellant asserts that Dr. M.’s act of submitting an unsolicited MCR to the Registrar on January 16, 2019, was an act of “medical malfeasance”.
49Section 203 of the HTA, requires that all legally qualified medical practitioners must report to the Registrar any patient who is suffering from a medical condition that may make it dangerous for the person to operate a motor vehicle. Psychiatric conditions such as psychotic illnesses or severe abnormalities of perception are amongst the reportable conditions.
50Based on the above and as will be explained below in more detail, I find that Dr. M. was acting appropriately under the law by submitting the MCR to the Registrar indicating that in her opinion, the appellant was suffering from an unstable mental or emotional illness that may make it dangerous for the appellant to operate a motor vehicle.
51For the reasons that follow, I prefer the opinion of Dr. M. and the appellant’s family over that of the appellant with regards to whether or not the appellant’s mental health condition is likely to significantly interfere with his ability to drive a vehicle safely.
52The appellant testified he has not owned a vehicle for the past 4-5 years and would borrow his mother’s car when necessary. He testified that he has not driven a vehicle while his licence has been under suspension. When questioned about having a Class C driver’s licence, the appellant stated that in the past he was a school bus driver. In addition, he stated that in January 2019 he was due to start a new job, lost the job because of his hospitalization and his driver’s licence suspension is affecting his ability to find and commute to work.
53Furthermore, the appellant testified that his family has no concerns regarding his driving.
54However, as per the Board’s disposition, the appellant’s family reported to Dr. M. that on one occasion the appellant “had shown them a videotape of himself driving slowly on a highway so he could videotape cars he believed were following him”.
55Furthermore, Dr. M. testified before the Board that she “was concerned about how many more times this had happened”.
56Moreover, the appellant’s mother testified before the Board that “she felt unsafe each time her son drove her vehicle as she was afraid something would happen to him”.
57I acknowledge that the appellant believes that he is safe to drive.
58However, as noted above I have found that the appellant’s testimony is not reliable (i.e. he is unable to correctly observe, process, interpret, retain or recall information correctly).
59Section 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.
60The 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 psychosis or severe abnormality of perception would be an acute psychiatric (mental health) event or disorder, which may result in episodic impairment as per the CCMTA Standards.
61As 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.
62As previously stated, the appellant is unable to acknowledge the symptoms of a mental health condition as it relates to himself, is unable to acknowledge that he may suffer from the symptoms of a mental health condition and chose not to comply with Dr. M.’s previously recommended out-patient mental health treatment regime.
63Thus, based on the above and all the evidence before me, I find that the appellant lacks insight into his mental health condition. Furthermore, without being able to acknowledge that he has a mental health condition, I find on a balance of probabilities that the appellant cannot understand how his mental health condition may impair his functional ability to drive.
64Based on the totality of the evidence before me and after careful consideration, 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. In doing so I note that the licence at issue here is a class C licence, which would permit the appellant to operate a large bus (though not for school purposes). Moreover, the appellant cannot acknowledge that he suffers from a mental health condition and therefore lacks insight into his mental health condition. 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 or mental health condition. Furthermore, the Board’s disposition indicated that the appellant’s mother felt unsafe each time he drove her vehicle and on at least one occasion the appellant videotaped himself driving slowly on the highway to prove that other drivers were following him.
65I acknowledge that stress from the lack of a driver’s licence may aggravate the appellant’s mental health condition and may make it more difficult for him to find and commute to work. However, driving is a privilege, not a right.
66While 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.
67The Tribunal feels it necessary to comment on the unique circumstances of this case. As noted above, the appellant had only submitted a portion of his Board decision as evidence. Upon reviewing the evidence following this hearing, it became apparent to the Tribunal that the missing portions of the Board’s decision were critical to its ability to make a fully informed decision in this matter.
68The agent for the respondent was aware that the Board’s decision was incomplete. However, while the agent made a comment to the appellant regarding the missing portion, she took no further steps to obtain it, even though it was publicly available. Even if the document were not publicly available, the respondent could have considered requesting a summons from the Tribunal.
69The Registrar bears the burden of proving its case in these appeals. Given the public safety issues at stake, the Tribunal expects the Registrar to take reasonable steps to provide the relevant information in support of its case.
F. ORDER:
70For 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.
LICENCE APPEAL TRIBUNAL
_______________________
Dr. Erica Weinberg, Member
Released: December 07, 2020