A. H. v. Registrar of Motor Vehicles, 2021 CanLII 28694

Licence Appeal Tribunal

Original Date: 2021-03-23

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:

A. H.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

PANEL: Dr. Peter Savage, Member

APPEARANCES:

For the Appellant: A. H., Self-represented

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: February 11, 2021

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 driver's licence. The suspension took effect December 12, 2021 and the cause of the suspension was the appellant’s alleged alcohol use disorder.

2The appellant disputed the validity of the hearing based on errors in the unsolicited medical report. The appellant’s position was that A.H. licence should be given back immediately. Following the presentation of the Registrar’s evidence the appellant pointed out the errors in the unsolicited medical report and then refused to answer any questions from the Registrar or requests for clarification from the tribunal.

B. ISSUE

3The legal issue for the Tribunal to determine is whether the appellant suffers from a medical condition, specifically, alcohol use disorder, and whether this condition is likely to significantly interfere with the appellant’s ability to drive safely.

C. CONCLUSION

4For the reasons that follow, the Tribunal finds that the appellant does suffer from a medical condition and this condition is likely to significantly interfere with the appellant’s ability to drive safely. Accordingly, the decision by the Registrar to suspend the appellant’s class G driver’s licence is confirmed.

D. LAW

5The 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).”

6One 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.

7Sections 203.1, 203.2 and 204 of the HTA state as follows:

Every prescribed person shall report to the Registrar every person who is at least 16 years old who, in the opinion of the prescribed person, has or appears to have a prescribed medical condition, functional impairment or visual impairment. 2015, c. 14, s. 55.

A prescribed person may report to the Registrar a person who is at least 16 years old who, in the opinion of the prescribed person, has or appears to have a medical condition, functional impairment or visual impairment that may make it dangerous for the person to operate a motor vehicle. 2015, c. 14, s. 55.

A report required or authorized by section 203 must be submitted in the form and manner specified by the Registrar and must include,

(a) the name, address and date of birth of the reported person. (b) the condition or impairment diagnosed or identified by the person making the report,

8Subsection 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.”

9Section 14(2)(a) of O. Reg. 340/94 allows the Registrar to consider the Canadian Council of Motor Transport Administrators (“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.

10The 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.

11Pursuant 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. EVIDENCE and PARTIES’ SUBMISSIONS

Registrar’s evidence

12The Registrar reviewed the sections of the HTA that the Ministry relied upon to suspend the appellant’s G-class licence, including section 14(2)(b)(ii), which empowers the Ministry to request information about a condition that may affect the appellant’s ability to drive and requires licence-holders to provide the requested information.

13The Registrar received an unsolicited medical report dated December 02, 2020 from Dr. Tamara Hoppe, a physician at CAMH. This report stated the appellant had an uncontrolled substance use disorder. The report went on to say the appellant is non-compliant with treatment recommendations.

14The Registrar sent a letter to the appellant on December 02, 2020 informing the appellant of the report and suspending their class G driver licence. The letter indicated the licence was suspended based on an alcohol use disorder. The letter included a substance use assessment questionnaire to be filled out by the appellant’s health care provider

15The Registrar pointed out that no further medical evidence had been received.

16The Registrar pointed out that the CCMTA was a group of road safety experts from across Canada. The CCMTA made recommendations regarding driving safety and the effect of medical conditions on the ability to drive a motor vehicle. The agent noted that the recommendations of the CCMTA were recommendations and not the law.

17The Registrar pointed out the dangers substance abuse could present while driving. The CCMTA Standards outlines the dangers of substance abuse. The Registrar directed us to section 15.6.3 of the CCMTA Standards. This section recommends a period of 12 months of abstinence or a lesser period of abstinence if a recognized treatment program has been completed.

18The Registrar drew attention to the appellant’s driving record. There were no reports of any alcohol infractions.

19The Registrar pointed out that the only medical evidence available was the unsolicited medical report of the CAMH emergency physician. The Registrar argued he acted appropriately in suspending the licence and until further documentation was received and reviewed the licence should remain under suspension. Without further medical evidence the Registrar does not know the severity and implications of if the substance use disorder and cannot consider removing the suspension until this information was received.

Appellant’s evidence

20The appellant pointed out there were a number of errors in the unsolicited medical report found in exhibit 2. The appellant drew our attention to three errors. First, on page one of the report A.H. stated the address was completely wrong. (including street, city and postal code). Secondly, on page two of the unsolicited medical report the appellant’s middle initial was not included. Thirdly on page two where the date of birth should have appeared the actual date of the examination was written and not the correct birthdate.

21The appellant testified that as a result of these serious errors the Tribunal could not be sure to whom the unsolicited medical report referred. The appellant argued that this report quite possibly was about some other person.

22The appellant drew the Tribunal’s attention to Section 204 of the HTA. This section states the subject’s name, address and birthdate must be on the unsolicited medical report. The appellant’s opinion was the errors on the form rendered the form invalid for not complying with s. 204, and thus there was no basis for the Registrar to have suspended A.H’s. G licence.

23The appellant stated there was no reason to disclose any medical information. The appellant stated they would answer no questions from the Registrar or the Tribunal. The appellant’s position was the licence should be reinstated immediately as a result of the errors on the unsolicited medical report.

24After the appellant’s completion, the Registrar tried to ask questions to clarify the authenticity of the unsolicited medical form. The Registrar asked the appellant if they were in the emergency room of the CAMH on December 2, 2020. The appellant declined to answer that question. The appellant stated that no further questions by the Registrar or by the Tribunal would be answered. The appellant restated their position that because of the errors in the form the Registrar had mistakenly suspended the G licence and it should be returned.

25The Registrar pointed out the form was filled out. The name of the appellant was spelled correctly and in one box the middle initial was added correctly and in the other box the middle initial was omitted. The birthday was correct in the first box and in the second box the date of exam was written rather than the birthday. The address was incorrect. While the form had errors, it raised the concern that a driver may pose a risk to their own and to public safety. The Registrar argued they had both the right and the duty to gather more information from the appellant to allow them to either confirm or set aside the suspension.

F. ANALYSIS

26The first issue I must consider is the validity of the unsolicited medical report and whether any errors in that report make it invalid as argued by the appellant. If it is invalid, I must then determine whether its invalidity voids the Registrar’s authority to suspend a licence and review the appellants medical condition.

27If the answer to any of these questions is negative, I then must turn to the legal issues that typically govern these proceedings. First, does the appellant suffer from a medical condition, namely alcohol use disorder? If the evidence supports such a diagnosis the next question I must answer is whether the medical condition of alcohol use disorder is likely to significantly interfere with the appellant’s ability to safely drive a motor vehicle.

Validity of the Unsolicited Medical Report

28The appellant’s evidence is that there were errors in the unsolicited medical report, as discussed above. Certainly, in one box the middle initial is not included. Moreover, the date of birth box on the second page has erroneously been completed with the date of examination. The appellant also testified the address is completely incorrect.

29The Registrar argues the name and birthday are correct and testifies the Registrar was able to get a suspension notification out to the appellant the same day as the report was received

30The appellant’s notice of appeal (exhibit one) confirms on an unspecified date the appellant was in the emergency department of CAMH and was seeking help for an alcohol related problem.

31Aside from the clerical errors the appellant provided no evidence that this form did not relate to them. A.H. refused to answer questions by the registrar when he sought to establish a link between the appellant and the form.

32Certainly, one would have to conclude this form contained clerical errors and as such one might place less weight on the document as a result. On the other hand, Section 203 states a physician must report a person who in their opinion may have a reportable medical condition. This form was completed and was sent into the Registrar with the appellant’s name and birthdate completed correctly at least once on the form.

33While s. 204 does require that the person’s name and address be provided on the form, in my view the requirement is directory rather than mandatory. In other words, I believe that the legislature’s intent behind the requirement is to ensure that a person is accurately identified. I do not think the legislature intended that where, as here, the reporting physician makes several minor mistakes on the form, that it would render all action that flows from that report null and void. Such an interpretation would not accord with the HTA’s public safety objectives. Thus, while it is open to an appellant to point to a mistake or mistakes in the report in support of an argument the report submitted does not pertain to them, or is otherwise unreliable, I do not think a mistake automatically results in the report being inadmissible or unreliable.

34In this case, I am satisfied that the report in question pertains to the appellant, A.H. and is otherwise reliable. In coming to this conclusion, I relied on A.H’s admission in A.H’s notice of appeal, the fact that the form correctly identifies A.H. in several different areas, and that the appellant did not actually deny that A.H. is the subject of the report beyond raising the possibility of that fact.

Does the Appellant Suffer from Alcohol use Disorder?

35The only documented medical evidence we have is from Dr. Tamara Hoppe. Dr. Hoppe indicates on the unsolicited medical report that the appellant suffers from severe alcohol use disorder and is unwilling to submit to treatment. As noted, I believe the person named in the report refers to the appellant. I agree there are errors relating to the appellant’s address and dates in the report and these errors are of concern and as such I could put less weight on the report. However, I also believe that medical doctors take their duty to report possible conditions to the Registrar very seriously, and I do not believe these minor errors on the unsolicited medical report call into question the accuracy of the diagnoses and the medical information contained therein.

36In the NOA the appellant states that A.H.’s alcohol use had become exaggerated by a change in employment, working from home and the knowledge of the termination of A.H.’s job due to their company’s bankruptcy. The appellant notes they found it discriminatory to seek help from the CAMH emergency department and have them assume an opinion of severe alcohol use. These statements in the NOA support the conclusion that the appellant does in fact suffer from an alcohol use disorder that the appellant was seeking help for. It also confirms the appellant was in the emergency of CAMH and was seen there as a patient.

37Considering all of the above, I am satisfied that despite the clerical errors in the report, the medical information it contained was accurate. In light of that, and also considering the above-noted information in the appellant’s NOA, I conclude that the appellant does suffer from a medical condition, namely alcohol use disorder. I would also note that despite having the opportunity to do so, the appellant did not deny that A.H. suffers from alcohol use disorder. Indeed, A.H refused to answer any of the Registrar’s or Tribunal’s questions in that regard.

Is the appellant’s alcohol use disorder likely to significantly affect the appellant’s ability to drive a motor vehicle safely?

38Having determined the appellant has a condition, namely alcohol use disorder, I must now determine whether the Registrar has discharged its burden of proving that this condition is likely to significantly affect the appellant’s ability to drive a motor vehicle safely.

39Aside from the unsolicited medical report there is no medical evidence available to assist in making a determination of the effect the condition may have on the appellant’s ability to drive. I am very much hampered in making this determination by the appellant’s refusal not only to provide the medical information required by the Registrar, but also A.H’s. refusal to answer any clarifying questions about the alleged medical condition before the Tribunal.

40In A.H’s final statement in the NOA the appellant asks for a reassessment of their alcohol use. The substance abuse questionnaire and indeed the hearing itself are both opportunities for doing so. A.H. is in the best position and has the power to provide the information needed to reassess their alcohol use disorder and the effects it might have on driving ability. However, the appellant has not had the medical questionnaire filled out and refuses to clarify A.H’s alcohol use in verbal testimony at the hearing.

41The Registrar points out the section of the HTA and Regulation that allow the Registrar to collect medical evidence from a licensed driver. That medical evidence was not provided. This hampered the Registrar and the Tribunal itself from getting clarification on the medical condition. I also note that s. 15(1.1) of the Regulation states that it is a condition of a driver’s licence that a person submit to the examinations as required by the Minister, the results of which the Registrar may require be provided under s. 14(2)(b)(i).

42The Tribunal did get some insight into the driving habits of the appellant in the NOA. The appellant states they had never driven under the influence of alcohol and they had never been charged with driving under the influence. The Registrar’s evidence confirms the driving record shows no alcohol related charges. However, the appellant was not cross-examined on the contents of their NOA because A.H. refused to answer any questions.

43The CCMTA Standards are not binding on the Tribunal, though the Regulation refers to them specifically and give the Minister the authority to consider them in making medical suspension decisions. In my view, the CCMTA Standards should be accorded significant weight in medical suspension cases, including in the present case.

44The Registrar suggests the evidence from the unsolicited medical report is strong enough to convince us that the medical condition confirmed by the emergency doctor at CAMH would affect the appellant’s ability to drive safely.

45While I agree that the unsolicited medical report contains enough information to conclude that the appellant suffers from alcohol use disorder, I am not sure I agree that there is enough information in the report alone to establish that the disorder is to an extent that it would likely significantly affect A.H’s ability to drive safely.

46I am mindful that the burden of proof rests with the Registrar in these matters. I am also mindful, however, that this is the appellant’s appeal. Accordingly, I am prepared to draw an adverse inference from the appellant’s refusal to provide the information required by the Registrar, and also by A.H’s refusal to answer questions before this Tribunal. I am drawing the inference that the reason A.H. refused to provide the requested information, and the reason A.H. refused to answer questions before this Tribunal is that A.H. knew that providing the information would establish that A.H.’s alcohol use disorder is to an extent that it is likely to significantly interfere with A.H.’s ability to drive safely.

47In light of the above considerations, I conclude the Registrar has proved on a balance of probabilities that the appellant has a medical condition that is likely to significantly interfere with the appellant’s ability to drive a motor vehicle safely.

ORDER

48Pursuant to subsection 50(2) of the HTA I confirm the Registrar’s decision to suspend the appellant’s class G driver’s licence.