Appeals under section 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 and a second suspension under subsection 32(5)(b)(ii)
Between:
Seyed Faysal Talaghani
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicator: Dr. Peter Savage, Member
Appearances:
For the Appellant: Seyed Talaghani, Self-Represented
For the Respondent: Stephen Grootenboer, Agent for the Registrar
Heard by Teleconference: October 7, 2021
REASONS FOR DECISION AND ORDER
A. OVERVIEW:
1On July 22, 2021, the Registrar suspended the appellant’s class-G licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”) after receiving a report from a police officer that the appellant apparently suffered from a mental health condition requiring the officer to request a mental health assessment. The appellant appeals the suspension and asks the Tribunal to reinstate his licence.
2On the same day the Registrar suspended the appellant’s class-G license under section 32(5)(b)(ii) of the HTA on the basis of the appellant’s visual impairments. This suspension was based on a visual assessment and report from an ophthalmologist.
3There are two grounds for suspension before me. The first is that the appellant suffers from a mental health condition and a substance use disorder that may make him unsafe to drive. The second is that he has a visual acuity problem. His eyesight does not meet the standard for the issuance of a licence. These two grounds are addressed in two different subsections of s. 32(5)(b) of the HTA. Only one of those subsections, 32(5)(b)(i) allows an appeal to this Tribunal. I will deal with the question of why I do not have jurisdiction to hear an appeal from a denial under the other the other subsection 32(5)(b)(ii) first, and then, at the request of the parties, consider the appellant’s mental health and substance use conditions.
4On the question of the appellant’s mental health and substance use conditions, having considered all of the evidence and for the reasons that follow, the Tribunal affirms the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons under s. 47(1) of the HTA.
B. PRELIMINARY ISSUE
5Both parties agree that that the Tribunal has jurisdiction to hear appeals of suspensions imposed under s. 47(1) of the HTA.
6The respondent raised a preliminary jurisdictional argument. It submitted that while the Tribunal has the jurisdiction to consider an appeal of a suspension imposed under s. 47(1) of the Act, it does not have the jurisdiction to consider an appeal of a suspension imposed under s. 32(5)(b)(ii) of the Act.
7The appellant put forth no argument and submitted that he did not understand the difference between the two suspensions.
8I agreed with the respondent that the Tribunal does not have the jurisdiction to consider an appeal of action taken under s. 32(5)(b)(ii) of the HTA. At the hearing I communicated my finding on the issue and indicated reasons would follow. These are my reasons.
9Section 50(1) of the HTA allows an appeal by a person aggrieved by a decision of the Registrar under s. 47 or a decision made by the Minister under s. 32(5) “for which there is a right of appeal pursuant to a regulation” [Emphasis added].
10Section 25.1 of O. Reg 340/94 (the “Regulation”) does in fact prescribe a right of appeal. However, it prescribes a right of appeal only for decisions made by the Minister under s. 32(5)(b)(i) of the HTA. A right of appeal for a decision made under s. 32(5)(b)(ii) is noticeably absent, and I conclude that was a deliberate choice by the Legislature. Being a statutory tribunal whose jurisdiction must come from statute, I find that the Tribunal does not have jurisdiction over a decision made under s. 32(5)(b)(ii) of the HTA.
11As noted, I communicated my finding on this issue to the parties at the hearing. They elected to go ahead with the hearing on the suspension under 47(1) of the HTA.
12The appellant was reassured by the Registrar’s submission that reassessment could occur when and if time or technology improves his vision to the Ministry’s standards. He accepted the decision that the Tribunal did not have jurisdiction on the suspension related to his visual deficiency and elected to carry on with the hearing and have the Tribunal consider his suspension under s. 47(1) of the HTA
C. ISSUES:
13The issue in this appeal is whether the appellant suffers from a medical condition, specifically, a mental health condition, which is likely to significantly interfere with his ability to drive a vehicle safely.
14To answer that issue, I will address the following questions:
a. Does the appellant suffer from a medical condition?
b. If the appellant suffers from a medical condition, is it likely to significantly interfere with his ability to drive a vehicle safely?
D. LAW:
15Under 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 the Regulation.
16Under 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.
17A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.
18On appeal, the Registrar has the burden of establishing, on a balance of probabilities, that the appellant’s ability to drive safely is likely to be significantly affected by a medical condition.
19Following 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
a. Does the appellant suffer from a medical condition?
20The Registrar alleges that the appellant suffers from a mental health condition as well as a substance abuse condition based on the police report of June 15, 2021, and a mental health questionnaire submitted on September 13, 2021by Dr. Claudette Picard, the appellant’s family doctor. The Registrar confirms the substance abuse condition was brought to the Ministry’s attention by the mental health questionnaire.
21The appellant testified he has a mental health condition and identified the condition as bipolar. The appellant further testified this condition was aggravated by his use of cannabis.
22The appellant testified he used cannabis regularly in the past but since July he has stopped using the drug and, as a result, he has felt more stable. He admits he still has some craving for the drug but he feels he can maintain continued abstinence.
23The appellant testified that over the last 4 months his doctor has started him on monthly injections of Abilify (an atypical antipsychotic medication). This medication has helped stabilize him and he is feeling much improved. His aggressive behaviour and anger has stabilized. He is taking this medication willingly and is not on a community treatment order.
24The Registrar questioned the appellant’s past medical history and the appellant testified that he had been in hospital twice in the last year with episodes of aggression and mania. He had been released on medication but had not followed up on the medication because of the side effects.
25The appellant answered all questions in a clear and steady voice and was not evasive. The appellant seemed quite positive that the new medication was working and that he had a good support system including his family doctor and parents with whom he lived at home.
26The appellant testified he had used cannabis and it aggravated his condition. The appellant testified he did not use alcohol or any other street drug. He repeated his intention to maintain abstinence from cannabis.
27The appellant’s testimony and the medical evidence presented at the hearing supports the conclusion that the appellant suffers from a mental health condition and a substance use condition.
28On a balance of probabilities, I find that the Registrar has established the appellant has a mental health condition and a substance abuse condition.
b. If the appellant suffers from a medical condition, is it likely to significantly interfere with his ability to drive a vehicle safely?
29The Registrar has the burden of establishing that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Registrar has met that burden.
30The Registrar drew the Tribunal’s attention to the CCMTA (Canadian Council of Motor Transport Administrators) standards and recommendations. The Registrar pointed out the dangers that a mental health condition could cause while driving. The Registrar outlined the requirements that would be needed to consider licence reinstatement. This would include the condition being stable and the patient having sufficient insight to stop driving if the condition worsened. It would also include having the functional abilities needed to drive and the support of a physician recommending a return to driving. The CCMTA also suggests a functional driving test if there is a question of a cognitive impairment.
31The Registrar did not review the CCMTA guidelines for substance use disorder but testified substance use could impact a driver’s judgement and reaction time.
32The Registrar made the following submissions with respect to how the appellant’s condition affects the appellant’s ability to drive safely:
the appellant’s conditions are confirmed by a treating physician and the appellant himself
The appellant has failed to provide a completed substance abuse assessment questionnaire as requested by the Ministry. The 4 months of abstinence from cannabis is a good start but more time is needed to be sure the condition is stabilized and confirm that cannabis is the only substance of abuse
the appellant’s testimony confirms the appellant has a previous in-patient admission under the care of a psychiatrist. The police report and the mental health questionnaire confirm a history of aggression and non-compliance with treatment. A further period of stability is thus needed.
the appellant has a history of non-compliance with treatment and while the 4 months of taking Abilify is very encouraging, the Registrar believes a longer time is needed to confirm efficacy and compliance.
the Registrar believes the appellant has a limited understanding of his diagnosis. While his mental health is stable at this time it is only 4 months and more time is needed to be sure of his understanding and compliance with medication and with abstinence from substances.
The Registrar maintains the appellant does not meet the standards recommended by the CCMTA for re-licencing.
33The appellant maintains he is a safe driver, has a safe driving record and argues that there is no reason his mental health or substance abuse would affect his driving safety. The appellant addressed the Respondent’s concerns
34The appellant testified he had been driving for seven years and had no history of accidents and pointed to his spotless driving record from the Ministry of Transportation.
35The appellant addressed the psychiatrist’s concerns about his substance abuse by pointing to the 4 months of stability that the regular injections of Abilify had provided.
36The appellant addressed the failure to have the substance abuse questionnaire completed. He pointed out that the issue of substance abuse was only brought up in the September 23, 2021 letter from the Registrar. The questionnaire was sent out on September 23, 2021 and the hearing was on October 7, 2021 and there has not been enough time to have the forms filled in.
37The appellant addressed his previous hospitalizations. He testified that the doctors had not found the proper medications and that with the use of injectable Abilify that problem had been solved. The appellant testifies that he will remain compliant with his medication and abstain from cannabis.
38The appellant maintained he is stable. He has been released from hospital on medication and has follow up. He is coping well with daily life and is managing his condition with the help of medication his doctor and his family support.
39The evidence supports the Registrar’s submissions. I find, on a balance of probabilities, that the appellant’s medical condition is likely to significantly interfere with his ability to drive a vehicle safely. A review of the evidence and the appellant’s submissions shows that while the mental health condition and substance abuse condition are stable at this time that, a longer period of stability is needed to be sure these conditions remain under control. More information and verification are needed from health care professionals about the substance abuse issues.
F. ORDER:
40For 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. Peter Savage, Member
Released: November 10, 2021