Date: 2021-11-01

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 to suspend a licence pursuant to Section 47(1) of the Act

Between:

Thomas Kopeschny

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATORS: D Louvish M.D., Member

K. Livingstone, Member

APPEARANCES:

For the Appellant: Self represented

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: October 5, 2021

REASONS FOR DECISION AND ORDER:

A. Overview

1The appellant appeals the July 27, 2021, decision of the Registrar of Motor Vehicles (the Registrar) to suspend his licence pursuant to s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. (the “HTA”).

2The decision to suspend the appellant’s licence was made by the Registrar following the receipt of an unsolicited Medical Condition Report (“MCR”) from his treating physician indicating the appellant suffered an acute psychosis which may make it unsafe for him to drive. Section 203 (1) of the HTA requires an attending physician to report any person who has or appears to have a prescribed medical condition that may make it dangerous for a person to drive to the Registrar. Upon receipt of the report, the Registrar suspended the appellant’s licence.

3A subsequent mental health disorder report dated August 16, 2021 disclosed the appellant was not adherent to prescribed medications, had a prior history of substance use disorder and his recent psychosis was most likely medication/substance induced.

4A further letter from the Registrar dated August 20, 2021, confirmed the appellant’s licence remained suspended for a reported mental health condition and substance use disorder.

B. THE ISSUE

5The issue in this appeal is whether the appellant suffers from a mental and/or substance abuse condition that is likely to significantly interfere with his ability to safely operate a motor vehicle.

C. CONCLUSION

6For reasons that follow we find, on a balance of probabilities, the appellant suffers from both a mental and substance use disorder, and that both are likely to significantly interfere with his ability to drive safely. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

D. LAW:

7The 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 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 found in ss.14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA, which states:

1. An applicant for or a holder of a driver’s licence must not….

a) suffer from a physical, nervous, mental or emotional condition to an extent likely to significantly interfere with his ability to drive a motor vehicle safely

b) be addicted to a drug or alcohol to such an extent to significantly interfere with his ability to drive a motor vehicle safely.

9Section 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 it is not bound by them.

10The Registrar has the burden of establishing the ground(s) 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.

E. EVIDENCE AND ANALYSIS:

11The Registrar’s agent filed the documentary history of the appellant’s present medical suspension, including reports from his attending physician. The reports formed the basis for the Registrar’s position that the appellant’s licence should remain suspended.

12The documentation included a July 21, 2021, medical condition form from the appellant’s treating psychiatrist reporting the appellant had a medical condition of acute psychosis. On July 27, 2021, after receipt of the form, the Registrar suspended the appellant’s licence.

13The Registrar requested the appellant attend at his physician to complete a mental health disorder form. The appellant’s psychiatrist completed this form on August 16, 2021 and noted the appellant’s primary mental illness was “Schizophrenia or other Psychotic Disorder” with the latest onset being less than 3 months ago. In fact, at the time of the report, the period since the onset of the psychotic episode was approximately 30 days. The current status of his condition was noted as stable with no current symptoms. The form noted the appellant “denied active substance use over the past year but carries a previous diagnosis of cocaine/cannabis use disorder”.

14The report went on to note:

[T]he patient is not adherent with medication prescribed including an antipsychotic medication; however he has full resolution of symptoms without antipsychotic treatment which meant that his psychiatric episode was most likely medicating/substance induced and ongoing treatment with an antipsychotic medications is not needed as long as he continues to abstain from psychostimulant medications and other recreational substance.

15The report concluded that:

[T]he appellant experienced a medication vs. substance induced psychotic episode and this episode has fully resolved in the context of him abstaining from psychostimulant medications and other substances. He is now back to his baseline and there is currently no evidence of any symptom of psychosis.

16On receipt of this report the Registrar continued the suspension of the appellant’s licence and requested that he attend at his treating physician to confirm greater than three months of mental and emotional stability and that he was compliant with all recommended treatment regimen. The Registrar also required the appellant’s physician to complete a substance use assessment

17The appellant testified as did his mother. Additionally, the appellant produced a letter from his girlfriend, which the respondent’s agent consented to having filed as an exhibit.

18The appellant stated he works 6 days a week at a community shelter and relies on a vehicle to lessen his commute time.

19He acknowledged a history of mental health issues. However, he said he had been stable for a significant period prior to his episode of psychosis that started on July 14, 2021 and lasted until July 26, 2021. He attributed his psychosis to a reaction from the COVID vaccine he received on July 14, 2021. There was no medical evidence to substantiate this belief, although the MCR was completed on July 21, 2021. The appellant stated he experienced major feelings of anxiety and was delusional for several days which led to the visit to the psychiatrist on July 21.

20The appellant was inconsistent and somewhat vague about his substance use in the time immediately prior to his episode of psychosis. In his letter attached to his appeal he said he took ¼ tablet of prescribed Ritalin on July 15, 2021 and that he currently drinks no more than one beer per week. His letter stated his previous psychiatrist had prescribed Ritalin in January 2021 “for ADHD to assist with focus” and that he “takes smaller amounts when I need additional focus support”.

21When testifying the appellant first said he didn’t drink and then when statements in his letter were pointed out he changed his evidence to say he hadn’t had anything to drink since the psychotic episode. He was unclear about when he took the Ritalin saying first he took it on July 15 for work and then saying he took it on July 14, the same day as his vaccine.

22He agreed he has been seeing a psychiatrist after being diagnosed with a pyscho-effective disorder when he was 16 years old. He also agreed he was diagnosed with a cocaine\cannabis use disorder in 2018. Unfortunately, the psychiatrist who he had been seeing for several years transferred to another hospital and is no longer treating the appellant.

23The appellant was somewhat dismissive of the request by the Registrar to have his physician complete a substance disorder form. Although he said he had no problem with getting the forms filled out, he didn’t believe his new psychiatrist knew him very well. The appellant didn’t agree with the statements the psychiatrist made in his report of August 16, 2021. He felt that the psychiatrist was just “making assumptions” about him.

24Instead of relying on the doctor’s opinion, the appellant felt that those around him, specifically his mother and girlfriend, were in a better position to opine on any concerns about a substance abuse disorder and mental condition that would affect his ability to safely operated a vehicle.

25The appellant’s mother said he had been “working hard on sobriety for the last year” and has been able to work full time. The appellant lives in the same house as his parents although he stays in a basement apartment with its own entrance. His mother said she had not seen him drink alcohol since before the psychotic episode. She did not know when he last used cocaine or cannabis. The appellant voluntarily turned over his Ritalin pills to his mother after the episode.

26The mother testified the appellant hid his substance use in the past and, although she has encouraged him to use his medication as prescribed, her encouragement has not previously been successful. However, she believes the appellant’s ability to drive impacts positively on his mental health and confirmed that a vehicle would aid his travel to work.

27The letter from the appellant’s girlfriend details her observations of the appellant since his episode of psychosis. She states he has been able to return to work effectively as a community shelter worker where she is also employed. She wrote the appellant has maintained his sobriety for the year she has known him and in her opinion has not exhibited any signs of cognitive impairment. As with the appellant’s mother, she opined that having his driver’s licence would “positively impact his day to day activities”.

28The appellant did not provide the hearing with closing submissions.

29The Registrar submitted that the request for further information through the completion of the substance use form, together with a longer period of stability post the July 2021 episode of psychosis, are reasonable considerations in the circumstances. The Registrar pointed to the concern raised in the August 16 report of the appellant’s lack of adherence to prescribed medication and his prior substance abuse diagnosis while concluding that the July psychotic episode was a medication vs. substance induced psychotic episode. The Registrar argued this conclusion is “ a red flag” requiring further investigation as it related to the issue of a substance use disorder. Additionally, the Registrar submitted that additional information is required to ensure the appellant has maintained a significant period of stability since his episode in July.

30The CCMTA Standards state that individuals who are under the influence of alcohol and illicit drugs such as opioids, cocaine or amphetamines are at a higher risk for adverse driving outcomes. (Chapter 15.1). Additionally, the Standards note that drivers with a psychiatric disorder should remain under regular medical supervision and comply with a prescribed psychotropic medication regime or other recommended treatment as a condition for maintaining their licence (Chapter 14.6.1).

31Although the Tribunal is not bound by CCMTA Standards, in this case we consider it appropriate to follow them. The Tribunal agrees with the Registrar’s position that further information from the appellant’s treating physician is needed. We do not agree with the appellant’s position that his mother and girlfriend are better suited to assess his medical condition(s) and whether it would significantly interfere with his ability to drive a motor vehicle safely.

32While recognizing the appellant does not have a driving record for substance use related offences, we do note the potential for tragic consequences when a person is driving a motor vehicle while under the influence of substances.

33After considering the evidence and submissions of the parties, we find on a balance of probabilities the appellant, at the present time, suffers from a medical condition that is likely to significantly interfere with his ability to safely drive a motor vehicle.

F. ORDER:

34For the reasons set out above, pursuant to subsection 50(2) of the Highway Traffic Act, the Registrar’s decision to suspend the appellant’s driver’s licence is confirmed.

LICENCE APPEAL TRIBUNAL

_________________________

D. Louvish, Member

_________________________

K. Livingstone