Audrey Smith v. Registrar of Motor Vehicles, 2021 CanLII 85108

DECISION AND ORDER

Date: 2021-09-10

Appeal 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.

Between:

Audrey Smith

Appellant

and

Registrar of Motor Vehicles

Respondent

ADJUDICATOR: Dr. Peter Savage, Member

APPEARANCES:

For the Appellant: Audrey Smith, Self-Represented

For the Respondent: Kyle Biel, Agent for the Registrar

Heard by Teleconference: September 2, 2021

REASONS FOR DECISION AND ORDER

A. OVERVIEW:

1On July 24, 2021, the Registrar of Motor Vehicles (the “Registrar”) suspended the appellant’s 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 physician that the appellant suffers from a mental health condition, a condition likely to significantly interfere with her ability to drive safely. The appellant appeals the suspension and asks the Tribunal to reinstate her licence.

2Having considered all of the evidence and for the reasons that follow, the Tribunal sets aside the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.

B. ISSUES:

3The 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 her ability to drive a vehicle safely.

4To 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 her ability to drive a vehicle safely?

C. LAW:

5Under 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”).

6Under 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.

7A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.

8On appeal, the Registrar has the burden of establishing, on a balance of probabilities, that the appellant’s ability to drive safely is significantly affected by a medical condition.

9Following 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. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from a medical condition?

10The Registrar alleges that the appellant suffers from a mental health condition based on the unsolicited medical report of Dr. Imran Naqui. The Registrar confirms the condition was brought to the Ministry’s attention through an unsolicited medical report submitted July 12, 2021 by Dr. Imran Naqui a psychiatrist treating the appellant at the Niagara Health Centre, St. Catherine’s site.

11The appellant denied she has a mental health condition and maintains she is safe to drive a motor vehicle.

12The appellant was taken to hospital July 5, 2021 because her boyfriend felt she was having a nervous breakdown and called for help. The appellant maintains she was suffering from stress related to issues of abuse, complex family issues, financial and business difficulties.

13The appellant testified that while in hospital July 5, 2021, to July 14, 2021 she took no medication and followed a regime of self-treatment including diet, exercise, and support from friends. While the psychiatrist wanted the appellant to take medication, the appellant strongly disagreed, and the psychiatrist accepted the appellant’s position. The psychiatrist discharged the appellant on July 14, 2021 with a diagnosis of psychotic disorder (unspecified). The psychiatrist left the follow up to the family doctor even though the discharge papers clearly state there was no family doctor. The psychiatrist discharged the appellant with no organized follow up even though the psychiatrist knew the appellant was not going to take medication.

14The appellant testified that a consent and capacity hearing had been organized for July 15, 2021 and she was confident that hearing would have supported her position that she did not have a mental health condition and would have resulted in her release from hospital. The psychiatrist discharged her the day before the hearing.

15The Registrar questioned the appellant’s past medical history and the appellant testified in 2017 she had spent approximately one month as an in-patient under the care of Dr. Imran Naqui. The appellant testified this admission was related to the stress that emotional and sexual abuse had caused. The Registrar asked the appellant if she felt she had mental health condition and the appellant answered “no.”

16The appellant answered all questions in a clear steady voice but was often repetitive, and often suspicious of possible reasons questions were being asked. Initially the appellant had wanted to tape record the hearing as she felt people often took advantage of her. She set that request aside when she heard the LAT rules regarding tape recording of hearings. Some of the appellant’s evidence were audio files that she had recorded while trying to regain her licence. While this may point to a degree of paranoid thinking, the appellant argued that it was necessary to protect herself based on past experiences.

17The only medical evidence presented at the hearing supports the conclusion that the appellant suffers from a mental health condition even though a specific diagnosis was not made. This non-specific diagnosis was made by Dr. Naqui in the unsolicited medical condition report submitted July 12, 2021 and confirmed by his discharge summary of July 14, 2021.

18As noted, the appellant’s testimony revealed some degree of paranoid thinking and repetitiveness often associated with mental health conditions.

19On a balance of probabilities, I find the Registrar has established the appellant has a poorly defined form of mental health condition.

b. If the appellant suffers from a medical condition, is it likely to significantly interfere with her ability to drive a vehicle safely?

20The Registrar has the burden of establishing that the appellant’s medical condition is likely to significantly interfere with her ability to drive a motor vehicle safely. I do not find that the Registrar has met that burden.

21The Registrar drew attention to the Canadian Council of Motor Transport Administrators (CCMTA) Medical Standards for Drivers (CCMTA Standards). The CCMTA standards were developed by North American road safety experts, and may by considered by both the Registrar and the Tribunal, though they are not binding.

22The Registrar pointed out the dangers that a mental health condition could cause while driving. The Registrar outlined the CCMTA Standards’ requirements for licence reinstatement of a person with a mental health condition. These would include the condition being stable and the patient having sufficient insight to stop driving if the condition worsens. It also includes having the functional abilities needed to drive and the support of a physician recommending a return to driving. The CCMTA Standards also suggest a functional driving test if there is a question of a cognitive impairment.

23The Registrar made the following submissions with respect to how the appellant’s condition affects her ability to drive safely:

1. the appellant’s condition is confirmed by a treating psychiatrist;

2. The appellant has failed to provide a completed mental health assessment questionnaire;

3. the appellant’s testimony confirms the appellant has a previous in-patient admission under the care of a psychiatrist;

4. the appellant denies she has a mental health condition and has no plans to change her approach to the need for medication;

5. the Registrar feels the appellant has a limited understanding of her diagnosis;

6. The Registrar notes a cognitive deficit was diagnosed by the treating psychiatrist and that may affect the appellant’s driving ability; and

7. The Registrar maintains the appellant does not meet the requirements for re-licencing under the CCMTA Standards.

24The appellant maintains she is a safe driver, has a safe driving record and argues that there is no reason her mental health would affect her driving safety. The appellant addressed the Registrar’s concerns

25The appellant testified she had been driving for many years and had no history of accidents and pointed to her spotless driving record from the Ministry of Transportation. She also provided written documentation from the CAA confirming membership.

26The appellant addressed the psychiatrist’s concerns about her mental health and cognitive deficit condition by giving proof of her accomplishments in business and contributing to society even while being an inpatient in St Catherine’s hospital. Documentation of the appellant’s position included links to her professional website as well as audio documentation from a psychiatrist-client proving that as recently as a few days prior to the hearing she was picking up laundry and having it delivered back to the client’s home. While the psychiatrist-client declared a professional conflict and could not complete the mental health questionnaire she said she would undertake to provide a letter of support. The appellant also provided copies of letters verifying she was both contributing volunteer time and some financial support to charitable organizations such as the March of Dimes. The appellant maintained that someone with significant mental or cognitive difficulties could not perform at this level. The appellant also notes that Dr. Naqui discharged her on July 14, 2021 with no follow up except to be seen by a family doctor when he knew she was not taking medication and she did not have a family doctor. In a final statement on this issue she testified she is dealing with her mother’s unexpected death that occurred in the last week. She testified that she is carrying on with her affairs including this hearing. The appellant’s position is that someone with lack of focus, disorganized thoughts, or slow reaction times could not achieve her current level of function.

27The appellant addressed the failure to have the mental health questionnaire that was requested by the Registrar completed. She provided audio evidence from her medical clinic’s administrator that she attended the clinic July 22, 2021 to have a doctor complete the form. She testified that the doctor at the clinic felt only a psychiatrist could complete the form. The appellant also uses audio files from the social worker at the hospital that Dr. Imran Naqui would not see her. She then submitted audio evidence from a phone conversation with the MTO that they recommended she call the College of Physicians and Surgeons to get a list of doctors in her area who might arrange to take her into their family practice. The appellant testified she is working on that list of doctors as well as having phoned a doctor that her psychiatrist-client had given her (the phone number given for this doctor was not answered). The appellant’s position was that she had made every possible effort to have the questionnaire filled out and the health care system has let her down.

28The appellant addressed her 2017 hospitalization. She testified it was due to the stress that resulted from many years of emotional and sexual abuse and during that hospitalization she was able to begin to deal with that issue. There was no documented evidence from that hospitalization.

29The appellant denied the diagnosis of a mental health condition and prefers to attributed her hospitalizations to life issues and to stress. She has a plan to deal with her stress through diet and exercise and working hard at her business and family matters.

30The appellant maintains the denial of the diagnosis does not mean she is not trying to deal with the stressors that life has presented her. She just disagrees with the psychiatrist’s desire to have her take medication. The appellant feels a natural approach to these issues would be the best course for her.

31The appellant does not agree with the diagnosis of a mental health condition but accepts she has symptoms related to stress and anxiety. The appellant has established coping mechanisms and has shown she is able to continue to function, while working on the control of symptoms with diet, exercise, a vigorous work life, and help from friends. I find this shows insight into her condition even if she disputes the diagnosis.

32The appellant maintains she is stable. She has been released from hospital on no medication and no follow up. She is coping well with daily life and is managing the stress of her mother’s recent death. The appellant maintains her attendance and follow through at this hearing helps prove her stability.

33The appellant maintains she is functionally capable of safe driving. At the hearing the appellant is quick and alert and testified clearly, although often repetitively. When a challenge comes up she reacts quickly and honestly. For example, when asked why she applied for a motorcycle licence after her driver’s licence was suspended, she replied quickly “how is that relevant”? When told she was correct and did not need to answer she replied, “I always wanted to either parachute from a plane or drive a motorcycle and while I knew I could never afford to sky dive I felt I could at least get a motorcycle licence.”

34The appellant addressed the issue of attention and concentration by pointing to her accomplishments in business and her ability to perform in her oral testimony and submitting the exhibits in this hearing.

35The appellant has not been able to establish a relationship with a family doctor and thus there is no doctor willing to fill in her form. The appellant believes she has tried diligently to get this form filled in and the system has let her down. She will continue to try and get a family doctor. I believe the appellant has done everything reasonably possible to have the Mental health questionnaire filled out

36The CCMTA 14.5 states that drivers with psychiatric disorders may be able to compensate for their impairments if treated/ and or stabilized. I find the appellant’s condition is stabilized and the appellant has been able to compensate for her mental health condition.

37The evidence does not support the Registrar’s submissions. I find, on a balance of probabilities, that the appellant’s medical condition is not likely to significantly interfere with her ability to drive a vehicle safely. A review of the evidence, including the fact she was discharged from hospital with no medication and no follow up as well as her business accomplishments, her excellent participation in the hearing as well as her submitted exhibits establishes that while she has a mental health condition, that condition is stable and she has functional ability along with the attention, insight and concentration to drive a motor vehicle safely.

E. ORDER:

38For the reasons set out above, pursuant to subsection 50(2) of the HTA, I set aside the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.