Date: 2021-05-06

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:

J. P.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: J. P., Self-represented

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: April 20, 2021

A. Overview:

1The appellant appeals the suspension of his Class G2 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 his ability to drive safely.

3Having considered 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 of Motor Vehicles (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 ISSUES:

11The hearing of this matter was rescheduled twice at the request of the appellant in order for him to obtain additional medical information to support his appeal. No additional submissions were received from the appellant prior to the hearing.

12The appellant did not request a further adjournment at the start of this hearing.

13Furthermore, at the start of the hearing I reviewed the open court principle with the appellant as described in the appellant’s Notice of Rescheduled Hearing, dated February 25, 2021, (“The hearing will be open to the public and the documents submitted by the parties may be made available to the public unless the Tribunal orders otherwise.”) and as per Tribunals Ontario’s Access and Privacy Policy.

14The appellant expressed that he had no questions or concerns regarding the open court principle.

15Normally, the Tribunal’s decisions include the names of the parties to the proceeding in accordance with the open court principle: see Toronto Star v. AG Ontario, 2018 ONSC 2586.

16As public access to tribunal proceedings is protected by s. 2(b) of the Charter of Rights and Freedoms, the Tribunal will only exceptionally restrict public access to the identity of parties by anonymizing or initializing their names in its decisions. Before doing so, the Tribunal must be satisfied that the interest in safeguarding personal privacy in a particular case outweighs the public interest in including that information in the publicly accessible decision.

17Section 2(2) of the Tribunal Adjudicative Records Act, 2019 allows a tribunal to make a confidentiality order on its own motion if it determines that:

a. matters involving public security may be disclosed; or

b. intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.

18In this case, I conclude that the details of the appellant’s mental health challenges are of such an intimate and personal nature that the desirability of a confidentiality order outweighs the desirability of adhering to the open court principle.

19In considering the appropriate order, I am mindful of the requirement that I must choose an order that intrudes on the open court principle as minimally as possible. As a result, I have decided to make an order that the appellant be referred to in this decision using his initials.

20I am satisfied that not making such an order may pose a serious risk to the administration of justice. I conclude that the failure of the Tribunal to protect such personal and intimate mental health details would likely have a chilling effect on participation in the Tribunal’s processes. If persons with mental health issues believed that their names and intensely personal mental health information would be published on a publicly available database regardless of its nature, they very well may decide not to exercise their right to participate as parties before the Tribunal.

E. EVIDENCE AND ANALYSIS:

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

21I find on a balance of probabilities, that the appellant is a person living with a mental health condition.

22The appellant testified that in January 2016 he was living with his mother and sister. He recalls being “stressed out” and “overwhelmed at this time”, that he argued with his mother about the need for food that he specifically wanted and that it was her responsibility to get this food. In his Notice of Appeal the appellant stated that during this heated argument he threatened to commit suicide, even though he had no intention of harming himself or others, but “this threat had worked for [him] previously”. Furthermore, the appellant stated that police officers were called to the house by neighbours, he refused to talk to the police, he was handcuffed, and he was taken to hospital by the police against his will.

23The appellant testified he was forced to stay overnight at the hospital but was otherwise quite vague about the event. When asked, the appellant initially testified that he was not seen by a psychiatrist during his stay, but later changed his testimony stating that he was assessed by a psychologist or psychiatrist prior to being allowed to leave the hospital and felt that “this was unnecessary”.

24The Registrar received an unsolicited Medical Condition Report (“MCR”), dated January 10, 2016, from Dr. S., a physician at the hospital the appellant attended. Under s. 203(1) of the HTA, a qualified medical practitioner must report to the Registrar any person sixteen years of age or older who, “is suffering from a medical condition that may make it dangerous for the person to operate a motor vehicle”. On the MCR form, Dr. S. indicated that the appellant was suffering from a “mental or emotional illness-unstable”. In the optional section of the form, Dr. S. wrote, “destroyed house; police called; handcuffed; Form 1/42”.

25The appellant asserted that “destroyed the house” was an exaggeration and that he “flipped the coffee table over”.

26Under s. 17 (Action of a Police Officer) of the Mental Health Act, R.S.O. 1990, c. M.7 (the “MHA”), where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe the person,

a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself;

b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or

c) has shown or is showing a lack of competence to care for himself or herself,

and in addition, the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in,

d) serious bodily harm to the person;

e) serious bodily harm to another person; or

f) serious physical impairment of the person,

and that it would be dangerous to proceed under section 16, the police officer may take the person in custody to an appropriate place for examination by a physician.

27As per the written comments on the MCR and my knowledge of the provisions of the MHA, Dr. S.:

• was the physician who personally examined the appellant at the hospital to which the police took him;

• placed the appellant on a Form 1 (Application by Physician for Psychiatric Assessment) under the MHA, which was appropriately followed with a Form 42 (Notice to Person);

• in accordance with a Form 1, deemed upon personal examination of the appellant, that the appellant was apparently suffering from a mental disorder of a nature or quality that likely will result in serious harm; and

• would have made an application for a psychiatric assessment of the appellant, and that the appellant could have been kept in the hospital for no more than 72 hours in order for the psychiatric assessment or examination to occur.

28Although the appellant was released from hospital following his examination by a psychiatrist, I am aware from my knowledge of the provisions of MHA that this simply means that the psychiatrist was of the opinion that the appellant was not in need of the treatment in a psychiatric facility, and does not mean that the appellant was not suffering from a mental health condition at that time.

29By letter dated January 12, 2016, the Registrar suspended the appellant’s driver’s licence effective January 21, 2016 with a reported medical condition of mental health (psychiatric) disorder and requested that the appellant have his physician complete a Mental Health Assessment form (“MHA” form) when his condition improved.

30The appellant stated that for a number of reasons he did not try to reinstate his driver’s licence until sometime in 2019. Furthermore, he admitted that he attempted to get the MHA form completed not only by his family physician, Dr. K., but also by at least one other physician at a walk-in clinic in the city where he currently resides. He stated that this or these physician(s) refused to fill in the MHA form because they did not know him.

31As per the completed MHA form, dated August 17, 2020, but faxed by the appellant to the Registrar late December 2020, Dr. K. became the appellant’s family physician around November 2019. The appellant testified that because he “had not seen Dr. K. much” before his request to have the MHA form completed, Dr. K. required that the appellant see Dr. V.I., a psychiatrist prior to completing the MHA form. Dr. V.I. is a psychiatrist at the same hospital the appellant attended in 2016. The appellant testified that this assessment by Dr. V.I. occurred on December 13, 2019.

32Although Dr. V.I.’s consultation note was not submitted as evidence, Dr. K.’s completed MHA form sheds some light on Dr. V.I.’s assessment of the appellant’s mental health in 2019. This was confirmed at the hearing by the appellant’s assertion that “Dr. K. is going by Dr. V.I.’s notes”.

33On the completed MHA form Dr. K. indicated that the appellant’s primary mental health condition is a delusional disorder (“DD”), the most recent episode being 6-12 months ago, that the condition is stable-symptoms resolved, and that the condition has remained stable/unchanged for 6-12 months. In the “Additional Comments or Information to Take Into Consideration” section, Dr. K. wrote, “Was diagnosed with a DD, i.e. fixed delusional belief, which [he] has since then recognized as a delusional belief. Discontinued marijuana (cannabis) use in September 2019.”

34The appellant testified that he is of the opinion that he does not have DD or any mental health condition, was “misdiagnosed with DD”, “disagrees with the diagnosis of DD” and there is “no evidence regarding psychological issues”. The appellant is basing his opinion on recently seeing the definition of a “delusion” in a friend’s psychology textbook plus his daily use of recreational cannabis at that time. The appellant initially testified that his “dreams or episodes” lasted a “few months” and he was “unsure” about the relationship of these episodes with his cannabis use. Later he stated that he believes his cannabis use might have brought out these episodes, and that the episodes increased when he used cannabis frequently. Furthermore, the appellant initially stated that once he stopped using cannabis, he “could not remember” when the dreams or episodes stopped, but later stated they disappeared within 1-2 weeks. When questioned about cannabis use in 2016, the appellant stated that he “might have been” using it then. Later in the hearing the appellant admitted that he began re-using cannabis in March 2020 for about two months, which he did not disclose to Dr. K. He stated that the dreams or episodes did not recur during this time period.

35Furthermore, the appellant asserted that he: was “not completely truthful” and “greatly exaggerated” his symptoms/the truth to Dr. V.I. as he was concerned that he was having memory loss issues; did not believe he had to tell Dr. V.I. the truth; believed what he told Dr. V.I. was confidential; did not believe by telling Dr. V.I. these things that it would affect him in any way or have any consequences; and is under oath now, so he is telling the truth.

36I prefer the opinions of Dr. S. and Dr. K (based on Dr. V.I.’s report) over that of the appellant with regards to the appellant’s mental health. Dr. S. personally examined the appellant in January 2016 when the police brought him to hospital under the MHA. Dr. S. placed the appellant on a Form 1, which suggests that, on a balance of probabilities, Dr. S. was of the opinion that the appellant was suffering from some sort of mental health condition at that time of a nature or quality that would likely result in serious harm. Being released from the hospital in 2016 following an assessment by a psychiatrist does not mean that the appellant was not suffering from a mental health condition at that time, rather it means that the appellant was not in need of treatment in a psychiatric facility. In addition, I am of the opinion that Dr. V.I., a trained psychiatrist, is in a better position to objectively form a medical opinion of the appellant’s mental health in 2019, than the appellant. Although I find that the appellant’s cannabis use in 2019 may have contributed to the appellant’s dreams or episodes, the appellant has not provided any medical evidence that this was actually the case. “May” in medical terms does not necessarily mean on a balance of probabilities. Furthermore, the appellant could have presented evidence at the hearing from his friends to whom he disclosed the dreams or episodes, but he chose not to do so. Moreover, although the appellant stated that he attempted to get Dr. V.I.’s report from both Dr. K. and Dr. V.I., he testified that he only put in the request to get the report from the hospital at which Dr. V.I. works, three working days prior to the hearing and stated that he “didn’t think it was necessary”. Similarly, the appellant could have presented records from his hospital stay in 2016 to substantiate his claim that he felt being assessed by a psychiatrist was unnecessary, but he did not to do so. Moreover, the appellant never requested a second opinion regarding his mental health from any physician as he “feels this is not necessary”.

37After 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?

38The 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.

39As per its January 11, 2021 and February 24, 2021 letters to the appellant, the Registrar is of the opinion that in order to reinstate the appellant’s driver’s licence, it requires a satisfactory functional driving assessment (“FDA”) from an approved Functional Assessment Centre. The respondent stated that the Registrar is basing this opinion on Dr. K.’s completed MHA form which indicates that Dr. K. is of the opinion that the appellant requires an independent functional assessment. In addition, the respondent referred to 14.6.1 of the Canadian Council of Motor Transport Administrators’ Medical Standards for Drivers (the “CCMTA Standards”).

40The appellant is of the opinion that: he does not have a mental health condition; there is “no evidence supporting the need for” a FDA; Dr. K. “makes mistakes”; the need for a FDA was based on Dr. K.’s “personal opinion”; Dr. K. is “not knowledgeable about what the appellant was experiencing”, and Dr. K. was providing “false information”. The appellant negatively commented on Dr. K., his medical skills and his practice based on the appellant’s personal opinion and on-line reviews he entered as evidence.

41The respondent indicated that at the case conference it was discussed that the appellant could consider speaking with Dr. K. to determine why, on the MHA form, Dr. K. indicated that he was of the opinion that the appellant needed a FDA, or to determine if Dr. K. made an error and was willing to retract his opinion on this matter. The appellant confirmed that he had spoken to Dr. K. regarding this issue and that Dr. K. stated that he came to his opinion of the need for a FDA based on Dr. V.I.’s consultation report. The appellant further stated that when he spoke to Dr. V.I. when trying to get a copy of Dr. V.I.’s report, Dr. V.I. indicated to him that a FDA was not necessary.

42When questioned by the respondent on whether or not DD, in general, would impact safe driving, the appellant answered affirmatively. However, as the appellant does not believe that he has suffered from DD at any time, he believes that this would not be a factor as it relates to himself.

43In addition, when questioned whether or not the appellant had been in contact with a Functional Assessment Centre, the appellant stated that he had. Furthermore, he acknowledged that he had an appointment booked for a FDA sometime prior to the current “stay at home” COVID-19 orders but chose to cancel the appointment and wait for the rescheduled hearing.

44Section 14(2)(a) of the Regulation allows the Registrar to consider 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.

45Although not bound by the CCMTA Standards, I find that Chapter 14 (Psychiatric Disorders) describes important considerations when making a driver fitness evaluation in persons living with mental health conditions. Specifically, 14.6.1 (Guidelines for Assessment) states under “Standard” that all drivers [are] eligible for a licence if:

• the condition is stable;

• the driver has sufficient insight to stop driving if condition becomes acute;

• the functional abilities necessary for driving are not impaired;

• a treating physician supports a return to driving, for drivers who have stopped driving due to a psychiatric disorder; and

• the conditions for maintaining a licence are met.

46It is clear that there were many inconsistencies in the testimony heard plus many inconsistencies between the oral and written evidence before me. The appellant admitted that he has not been completely truthful with both Dr. K. and Dr. V.I. but stated that he was entirely truthful at the hearing because he “is under oath”.

47Although Dr. K. indicated on the MHA form that the appellant has since recognized that he was suffering from a delusional belief, the appellant currently believes that he: misunderstood the meaning of a delusion; was misdiagnosed; and does not or did not suffer from DD. Furthermore, the appellant stated that it was “ridiculous” to have his driver’s licence suspended secondary to the events in 2016 when the police took the appellant to be assessed by a physician under the MHA. I find, on a balance of probabilities, that the above indicates that the appellant lacks insight into his mental health. An individual’s level of insight is a critical consideration when assessing the risk of an episodic impairment of functional ability due to a mental health condition and an individual cannot compensate for an episodic impairment. In medical terms, an episode of severe abnormality of perception such as a delusion would be an acute mental health event, which may result in episodic impairment as per the CCMTA Standards.

48Furthermore, more than one and one-half years ago Dr. K. indicated in the completed MHA form that he was of the opinion that the appellant required a FDA. The appellant confirmed at the hearing that Dr. K.’s opinion regarding the need for a FDA has not changed, that it was not made in error, but was based on the contents of Dr. V.I.’s written report. The appellant was given ample time to obtain a copy of Dr. V.I.’s report yet chose to not request it from the hospital until three working days prior to the hearing which had already been rescheduled twice. Furthermore, I find that Dr. K.’s continued opinion that the appellant requires a FDA is, on a balance of probabilities, an indication that Dr. K. does not currently support the appellant’s return to driving.

49Despite the appellant stating that he recently spoke to Dr. V.I. and that Dr. V.I. did not feel a FDA was necessary, the appellant did not produce any independent evidence of this alleged statement.

50Based on the totality of the evidence before me and after careful consideration, I find based on the above 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. Despite the evidence before me which indicates that, on a balance of probabilities, the appellant has suffered from one or more mental health conditions since 2016, I find that the appellant cannot acknowledge or accept that he has suffered from any mental health condition or event at any time from 2016-2021. I find that this demonstrates a lack of insight into his mental health. An individual’s level of insight is a critical consideration when assessing the risk of an episodic impairment of functional ability due to a mental health condition. Furthermore, the appellant’s treating physician does not support a return to driving at this time and recommends that the appellant undergo a FDA based on the contents of a consultation report from psychiatrist Dr. V.I. The appellant had ample time to produce this report or a letter from Dr. V.I. to support his appeal but did not do so.

51I acknowledge the burden that the lack of a driver’s licence may be having on the appellant. However, driving a motor vehicle is a privilege, not a right. While 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.

52For 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.

53Furthermore, for the reasons set out in Preliminary Issues section, I order on my own motion that the appellant be referred to using his initials in the Tribunal’s decision.