Date: 2022-02-14

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:

Rachel Firlotte

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: Rachel Firlotte, Did not appear

Avin Persad-Ford, Student-at-law, Representative

For the Respondent: Sanjay Kapur, Agent (January 18, 2022)

Stephen Grootenboer, Agent (February 3, 2022)

Heard by Teleconference: January 18, 2022 and February 3, 2022

A. Overview:

1Rachel Firlotte (the “appellant”) appeals the June 5, 2021 suspension of her Class G 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’s reported medical condition of substance use disorder (“SUD”) is likely to significantly interfere with her ability to drive a vehicle safely.

3Having considered the evidence and for the reasons that follow, I find that the Registrar of Motor Vehicles (the “Registrar”) has met the burden of establishing that the appellant’s SUD is likely to significantly interfere with her ability to drive a vehicle safely. I therefore confirm the licence suspension.

B. ISSUES:

4The issue in this appeal is whether the appellant suffers from SUD, a medical condition, which is likely to significantly interfere with her ability to drive a vehicle safely.

5To answer that question, I will address the following issues:

a. Does the appellant suffer from SUD?

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

C. LAW:

6Under 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) 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, on a balance of probabilities, of establishing that the licence should remain suspended.

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.

11Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators’ Medical Standards for Drivers [February 2021] (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.

D. PRELIMINARY ISSUES:

12The hearing of this matter commenced on January 18, 2022. Mr. Persad-Ford appeared as the appellant’s representative, and Sanjay Kapur appeared as agent for the respondent. The appellant did not appear. At the commencement of “day 1” of the hearing, Mr. Persad-Ford requested an adjournment of the hearing. He stated that on the afternoon of January 17, 2022, he emailed the appellant to remind her of the hearing. He stated that the appellant emailed him back on the morning of January 18, 2022, indicating that she was unwell but that she would like to appear before the Tribunal.

13I was aware, that prior to day 1 of the hearing, the appellant had two case conferences plus one previous hearing adjournment to obtain additional medical information. However, in an effort to ensure fairness for the appellant, and on consent of the parties, the hearing was adjourned to February 3, 2022 before me. The parties understood that the adjournment would be marked peremptory on the appellant to proceed with the hearing on February 3, 2022.

14On January 18, 2022, the Tribunal sent a new Notice of Hearing to the parties.

15No new reports or submissions were received from the parties prior to February 3, 2022.

16On February 3, 2022, “day 2” of the hearing commenced. Mr. Persad-Ford appeared as the appellant’s representative, and Stephen Grootenboer appeared as agent for the respondent. The appellant did not appear. Mr. Persad-Ford indicated that on January 18, 2022, following day 1 of the hearing, he made phone contact with the appellant. He indicated that this was the last time he spoke to or heard from the appellant. He further stated that on January 31, February 2 and February 3, 2022, he attempted to connect with the appellant, by sending an email each day and attempting to reach her by phone (leaving a voicemail when her phone did not indicate that her voicemail was full).

17Following a discussion, day 2 of the hearing commenced in absence of the appellant.

18As a legal representative of the appellant, Mr. Persad-Ford provided information at the hearing that I found to be protected by either litigation privilege or solicitor-client privilege, or both. The privilege belongs to Mr. Persad-Ford’s client, i.e. the appellant, and there is no indication that the appellant waived that privilege either implicitly or explicitly. Section 15(2)(a) of the Statutory Powers Procedure Act states that privileged information is not admissible at a tribunal hearing, and I therefore do not consider any such statements by Mr. Persad-Ford as part of my deliberation.

19Further, Mr. Persad-Ford made statements that appeared to be giving factual information at first instance, i.e. not otherwise found in the hearing evidence before me. As a legal representative of the appellant, Mr. Persad-Ford’s statements are not evidence and I cannot treat such statements as evidence.

E. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from SUD?

20I find, on a balance of probabilities, that the appellant suffers from SUD.

21On May 20, 2021, emergency room psychiatrist, Dr. K., sent an unsolicited Medical Condition Report (“MCR”) to the Ministry of Transportation (the “Ministry”). On the report, Dr. K. indicated that she was of the opinion that the appellant had “a diagnosis of an uncontrolled SUD”, specifically with respect to cannabis and cocaine, and that the appellant “is non-compliant with treatment recommendations”.

22By letter dated May 26, 2021, the Ministry suspended the appellant’s driver’s licence with the reported medical condition of SUD and requested that her treating physician, specialist or nurse practitioner complete a Substance Use Assessment (“SUA”) form.

23On July 10, 2021, physician Dr. M. completed a SUA form. On the form, Dr. M. indicated that:

• the appellant was a new patient to him, and they had started blood work and follow-up;

• the substances that applied were alcohol and cannabinoids (cannabis);

• abstinence from alcohol and completion of a supervised treatment program as a result of the reported condition were not applicable; and

• the appellant had not experienced a seizure within the past 12 months.

24I note that on the SUA form, Dr. M. did not check off a diagnosis (choices: mild SUD, moderate SUD, severe SUD, or none of the above).

25By letter dated August 5, 2021, the Registrar required confirmation that the appellant has remained abstinent from alcohol/drugs for a period of one year and that this period may be reduced to six months if her healthcare practitioner confirmed that she has successfully completed a treatment program and is supportive of her driving privilege.

26By letter dated December 15, 2021, the appellant submitted additional information to the Registrar. This information included:

• a letter to Dr. M. (with appropriate authorization) requesting reports for all of her medical examinations plus confirmation of the contents of a conversation Mr. Persad-Ford had with Dr. M. on November 18, 2021;

• laboratory test results from testing conducted on November 13, 2021;

• mention that the appellant was in the process of obtaining the doctor and ambulance notes from May 19, 2021;

• a copy of an “Authorization To Possess Dried Marihuana for Medical Purposes” issued to the appellant on February 13, 2014;

• a Federal Court of Canada decision which indicated that the appellant’s cannabis licence is still valid as of today.

27Following a review of the appellant’s additional submission and by letter dated December 20, 2021, the Registrar requested additional information including “a clear diagnosis referencing [the appellant’s] drugs/alcohol use (i.e. mild, moderate or severe)”.

28The Registrar stated that, as of day 2 of the hearing, no additional medical evidence had been received from the appellant or her representative.

29Mr. Persad-Ford submits that based on the “test results” in evidence, the appellant is “not addicted” to any substances.

30As per the Registrar’s May 26, 2021 letter and the MCR in evidence, the medical condition in question is SUD, not “addiction”. The SUA form separates the condition of SUD into a continuum based on the severity of the disorder (i.e., mild, moderate or severe). From the information contained in the SUA form, one can see that diagnosing SUD is much more involved that just detecting or identifying substances in one’s system by “test results”. In addition, the SUA form also has a checkoff list of “substances” that may apply. This list of substances includes alcohol; illicit substances and/or non-prescribed pharmaceuticals; cannabinoids; prescribed medication; and over the counter medication. I also note that the SUA form does not use the words “addiction” or “addicted”.

31In the appellant’s Notice of Appeal (“NOA”), she described the events of May 2021. She wrote, “I was at home sitting outside after getting ready to start my day. I felt something was wrong with me but did not know what. I told my oldest child to call 911. I went in an ambulance to emergency, later the doctor told me it was angel dust and cocaine that sent me to emergency. I was drugged…I did not do this to myself. I do not do drugs…”. I note that the appellant makes no mention of cannabis in her NOA.

32As the appellant did not appear at her hearing, I have no knowledge of what the appellant considers to be “drugs” in the context of her NOA. As per the evidence before me, in 2014 the appellant obtained a licence to obtain dried cannabis for medical purposes from a licenced producer.

33Based on my knowledge as a licenced and duly qualified physician in the province of Ontario¹, I am aware that persons who use cannabis recreationally or for medical purposes can suffer from the mental health condition of SUD (cannabis use disorder).

34With respect to the November 13, 2021 laboratory results in evidence, I note that a random immunoassay urine drug screen (“IA UDS”) for drugs of abuse was positive for cannabinoids. I am aware that a positive IA UDS for cannabinoids means, on a balance of probabilities, that the appellant has used cannabis sometime in the past days to weeks. No blood or serum laboratory tests for drugs or substances of abuse were performed. Furthermore, the laboratory results showed normal liver functions and a normal hematological mean corpuscular volume. I am aware that these normal values mean, on a balance of probabilities, that in the three months or so prior to the testing date, the appellant did not chronically consume large amounts of alcohol.

35The only medical evidence before me regarding whether or not the appellant suffers from the mental health condition of SUD is from Dr. K. Dr. K. is of the opinion that the appellant suffers from SUD. Dr. K. is a psychiatrist who would be trained to identify and diagnose a variety of mental health conditions, including SUD. As previously mentioned, diagnosing SUD is more involved that just identifying “substances” in a patient’s system. Dr. M. did not answer the “diagnosis question” on the completed July 2021 SUA form. On December 20, 2021, the Registrar once again asked for additional information, including “a clear diagnosis referencing [the appellant’s] drugs/alcohol use (i.e. mild, moderate or severe)”. In the five months since the appellant submitted her appeal to the Tribunal, and despite two case conferences and two hearing adjournments, the appellant has yet to submit any medical evidence to contradict Dr. K.’s diagnosis.

36Based on the above, I find on a balance of probabilities that the appellant suffers from the mental health condition of SUD.

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

37The Registrar has the burden of establishing, on a balance of probabilities, that the appellant’s medical condition is likely to significantly interfere with her ability to drive a motor vehicle safely. I find that the Registrar has met that burden.

38The Registrar submitted that, as per the unsolicited MCR, the appellant was reported for a diagnosis of uncontrolled SUD and is non-compliant with treatment recommendations.

39The Registrar is relying on 15.6.3 of the CCMTA Standards, “Substance Use Disorder – All Drivers”. This CCMTA Standard states that drivers suffering from SUD may be eligible for a licence if they meet the criteria for remission and/or have abstained from the substance for twelve months. This CCMTA Standard also states that earlier re-licensing may be considered upon favourable recommendation from an addiction specialist and/or treating physician recognized by the licensing authority, and the successful completion of a drug rehabilitation program. The Registrar submits that substances are known to impair judgment and motor skills, creating a danger to other road users and the appellant herself.

40As previously stated, the Registrar has requested additional medical information from the appellant before considering reinstatement of her driver’s licence. This request is supported by law. In addition, based on the evidence before me and in this particular case, I find that receipt of this information before a reinstatement decision is a prudent course.

41In her NOA, the appellant wrote, “I certainly do not drink and drive. I don’t get intoxicated”. However, the Extended Driver Record Search For Criminal Code Convictions in evidence shows contrary information. The appellant has a remote criminal conviction for driving under the influence of alcohol (offence date 1995).

42Mr. Persad-Ford submitted that no test result in evidence showed the “level” of cannabis in the appellant’s system and there is nothing in the CCMTA Standards regarding safe versus non-safe “levels” of cannabis for driving, or at what “level” someone may be impaired by cannabis.

43As noted above, the Tribunal is entitled to take the CCMTA Standards into consideration but is not bound by them. The overriding consideration in this appeal is whether the Registrar has proven, on a balance of probabilities, that the appellant’s SUD is likely to significantly interfere with her ability to drive a motor vehicle safely.

44I do not accept Mr. Persad-Ford’s arguments regarding there being no “levels” of cannabis entered as evidence and the fact that the CCMTA Standards do not refer to safe versus non-safe “levels” of cannabis for driving, or at what “level” someone may be impaired by cannabis. I acknowledge that the IA UDS for substances of abuse ordered by Dr. M. provided only qualitative data. However, as per my knowledge, a qualitative drug screen for substances of abuse is the standard of care in Ontario, except, in this case, for the substance of alcohol. The appellant had the opportunity to discuss this with Dr. M. and request that a quantitative test for cannabis be carried out to determine a random quantitative “level” of cannabis in her system. Furthermore, I acknowledge that the CCMTA Standards do not indicate safe versus non-safe “levels” of cannabis for driving, or at what “level” someone may be impaired by cannabis. The appellant had ample time to research this matter and provide evidence or case law on this subject as she did with regards to her 2014 Medical Marihuana licence.

45However, Chapter 15 of the CCMTA Standards states, “No one should drive during the five-hour period following the inhalation of cannabis (smoking or vaping) or for eight hours following oral ingestion (cookies or brownies)”. In addition, 15.6.4 of the CCMTA Standards (Alcohol, Cannabis and Driving – All Drivers) states that Medical Marijuana (cannabis) is known to impair the ability to operate a motor vehicle safely. In general, individuals should not drive for approximately 5 hours after consuming medical marijuana and not drive at all if consuming 3 or more joints a day.

46As previously stated, the appellant made no mention of her use of cannabis in her NOA. As the appellant did not appear at her hearing, she was unable to provide any evidence regarding her cannabis consumption or pattern (e.g., potency; THC:CBD, amount of cannabis used at a time; frequency of cannabis use per day; method(s) of cannabis intake, etc.) or any evidence regarding the timing of her driving relative to the timing of her cannabis use.

47I am mindful that the burden of proof at this hearing rests with the Registrar. However, I am also mindful that this is the appellant’s appeal.

48I am also drawn to the fact that the appellant has not submitted any additional medical evidence since she was granted her first hearing adjournment.

49In the December 15, 2021 letter to the Registrar entered as evidence, Mr. Persad-Ford wrote, “Our office is also in the process of obtaining the doctor and ambulance technician’s notes from May 19, 2021, and will send these notes to you once they are in our possession” (my emphasis). In the process of doing something means, you have started to do it and are still doing it.

50Furthermore, I am aware that on December 17, 2021 the appellant requested an adjournment of her hearing scheduled for December 21, 2021. The reason given for requesting the adjournment was “to seek [her] hospital records…specifically those records pertaining to when [she] was admitted…on May 19, 2021. The hospital advised…that it can take up to four weeks for such requests to be processed” (my emphasis).

51On day 1 of the hearing, Mr. Persad-Ford requested an adjournment of the hearing on behalf of the appellant. He stated that the reason for the adjournment was that the appellant was unwell but wished to appear before the Tribunal. Mr. Persad-Ford did not state that the reason for the adjournment was that the appellant was still in the process of obtaining hospital or medical records. Furthermore, on day 1 of the hearing, while coming to a decision on a disclosure date for day 2 of the hearing, Mr. Persad-Ford advised me that he did not anticipate submitting any further reports prior to the return date of the hearing. A statement to this effect is documented in my January 20, 2022 Adjournment Order. I also note that February 3, 2022 (day 2 of the hearing) is over seven weeks from the December 15, 2021 letter entered into evidence.

52Accordingly, I draw an adverse inference from the appellant not submitting these medical notes and records as evidence for her hearing. It is likely that the appellant knew that providing the information in the hospital record would establish that her SUD is to an extent that it is likely to significantly interfere with her ability to drive a vehicle safely.

53Based on the totality of evidence before me, and in light of the above, I conclude that the Registrar has proven, on a balance of probabilities, that the appellant has a medical condition that is likely to significantly interfere with her ability to drive a motor vehicle safely.

54I acknowledge the burden, financial or otherwise, 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.

55Based on the totality of the evidence before me and after careful consideration, I find that the Registrar has discharged the onus of establishing that the appellant’s SUD is likely to significantly interfere with her ability to drive a vehicle safely.

F. ORDER:

56For 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.

Footnotes

1. 1Pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c S. 22, “a tribunal may, in making its decision […] take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge”.