Date: 2022-03-31

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:

Warren Paul Azzopardi

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Erica Weinberg, Member

APPEARANCES:

For the Appellant: Warren Paul Azzopardi, Self-represented

For the Respondent: Stella Velocci, Agent

Heard by Teleconference: March 8, 2022 and March 23, 2022

A. Overview:

1Warren Paul Azzopardi (the appellant) appeals the suspension of his Class G driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), effective September 11, 2021.

2The issue in this appeal is whether the appellant is a person living with one or more mental health conditions that is or are likely to significantly interfere with his ability to drive safely.

3Having considered all of the evidence and for the reasons that follow, I find that the Registrar of Motor Vehicles (the “Registrar”) has met the burden of establishing on a balance of probabilities, that the appellant is a person living with the mental health condition of substance use disorder (“SUD”) that is likely to significantly interfere with his ability to drive a vehicle safely.

4Accordingly, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.

B. ISSUES:

5The issue in this appeal is whether the appellant is a person living with one or more medical conditions, specifically one or more mental health conditions, which is or are likely to significantly interfere with his ability to drive a vehicle safely.

6To answer that question, I will address the following issues:

a. Is the appellant a person living with one or more mental health conditions?

b. If the appellant is a person living with one or more mental health conditions, are any of these conditions likely to significantly interfere with his ability to drive a vehicle safely?

C. LAW:

7Under 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”).

8Under 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.

9A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.

10On appeal, the Registrar has the burden of establishing on a balance of probabilities that the licence should remain suspended.

11Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

12Section 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. adjournment and dropping of grounds:

13The hearing of this matter commenced on March 8, 2022. The appellant appeared, and Stella Velocci appeared as agent for the respondent. At the outset of the hearing, it became apparent that the appellant had intended to submit two pieces of new medical information in advance of his hearing. The respondent confirmed that she had received one of these documents. I confirmed that the Tribunal had not received either of the new medical documents. In an effort to ensure fairness for the appellant, I adjourned the hearing with the respondent’s consent. We chose a mutually agreeable date and time for resumption of the hearing, plus a date for further disclosure.

14The hearing of this matter resumed on March 23, 2022. The appellant appeared, and Stella Velocci appeared as agent for the respondent. The Registrar advised that, following a review of additional submissions by the appellant, the appellant’s driving privilege remained suspended, but the only ground was the reported medical condition of SUD. The appellant acknowledged that he understood that the Registrar no longer felt that his other previously reported medical condition was likely to significantly interfere with his ability to drive a vehicle safely.

E. EVIDENCE AND ANALYSIS:

a. Is the appellant a person living with one or more mental health conditions?

15I find on a balance of probabilities, that the appellant is a person living with one or more mental health conditions.

16The respondent referred to an unsolicited Medical Condition Report (“MCR”) submitted by hospital psychiatrist Dr. GL on August 27, 2021, indicating that the appellant has or appears to have:

• “a condition or disorder currently involving any of the following: acute psychosis, severe abnormalities of perception or has a suicidal plan involving a vehicle or an intent to use a vehicle to harm others”, due to schizophrenia or other psychotic disorder; and

• “a diagnosis of an uncontrolled SUD, excluding caffeine and nicotine, and is non-compliant with treatment recommendations”, specifically to marijuana (cannabis).

17By letter dated September 1, 2021, the respondent suspended the appellant’s driver’s licence with the reported medical conditions of SUD and “Mental Health Condition” and requested that his treating physician, specialist or nurse practitioner complete a Mental Health Disorder (“MHD”) and a Substance Use Assessment (“SUA”) form.

18On the March 7, 2022 completed MHD form, Dr. DS, the appellant’s out-patient psychiatrist, indicated on the Section “Patient Medical History and Present Condition”:

• the appellant has a primary mental illness of schizophrenia or other psychotic disorder;

• his last most recent illness episode was 6-12 months ago;

• his condition is currently stable – symptoms resolved

• he currently has no symptoms;

• he was admitted to hospital one time in the last 12 months;

• he has no difficulties with cognition, attention or memory; and

• he has difficulties with judgement.

19I note that on this section of the MHD form, Dr. DS did not answer “Question 8”, which asked, “To the best of your knowledge, has the patient had an active SUD (not including tobacco) within the last 12 months”.

20The appellant acknowledged that he is a person living with a “mental health condition with delusions”. The appellant stated that he believes schizophrenia is a “general label”, is “stigmatizing” and that “some people need more stabilization in their life”. He acknowledged being hospitalized for approximately four weeks during the summer months of 2021 for a deterioration of his mental health and referred to this as one of his “regular hospitalizations” for a “breakdown”. The appellant also testified that he: is on a Community Treatment Order as per the Mental Health Act¹; receives monthly injections of a long-acting antipsychotic medication; and knows that delusions can be dangerous.

21Based on my knowledge as a licenced and duly qualified physician in the province of Ontario², I find, on a balance of probabilities, that the appellant’s description of his “mental health condition with delusions” and Drs. DS’s and GL’s diagnosis of “schizophrenia or other psychotic disorder” are one and the same. Therefore, I find on a balance of probabilities, that the appellant is a person living with a “mental health condition with delusions”.

22The appellant testified that, in his opinion, he suffers from a “very severe case” of Post Traumatic Stress Disorder (“PTSD”). When asked if he had discussed his view of having PTSD with Dr. DS, his out-patient psychiatrist of at least four years, his answer varied from “I think so” to “I am not sure” to “never deeply”.

23No medical evidence from a qualified health care profession was submitted to support the appellant’s assertion that he suffers from PTSD. On the March 2022 completed MHD form, Dr. DS: indicated that the appellant currently has no symptoms; did not indicate the appellant’s primary mental illness was PTSD; and did not write in the “Comments” section that the appellant also suffered from PTSD.

24Based on the above, I find on a balance of probabilities, that the appellant is not a person living with the mental health condition of PTSD.

25The appellant is of the opinion that SUD and cannabis use disorder are “man made phenomena”, have no scientific backing, and various mental health labels or conditions “blacklist”, “discriminate, and “stigmatize” people. He referred to the YouTube link for a documentary called Making a Killing: The Untold Story of Psychotropic Drugging. The appellant emphasized that cannabis is legal. He stated that he uses cannabis: as a coping mechanism; for medical purposes; and “needs it” for his PTSD.

26The appellant testified that, due to his new-found religious, faith or bible beliefs he now believes that he previously used too much cannabis and now wishes to cut down or wean off cannabis. He stated that for more than one month after his driver’s licence was suspended, he felt depressed, and his cannabis and ethanol usage increased. More recently, at the suggestion of his mother, the appellant reconnected with “ADAPT” (Alcohol, Drug and Gambling Assessment Prevention and Treatment Services) to “get back in control”. As per a letter from ADAPT submitted as evidence, the appellant began using the ADAPT services in January 2021. According to the appellant, ADAPT recently recommended that he attend a “RAAM” (Rapid Access to Addictions Medicine) clinic. As of the date of the hearing, the appellant has had six weekly sessions with the RAAM clinic. The appellant is currently using a recommended over-the-counter product to help with cannabis withdrawal symptoms, feels he has reduced his consumption of cannabis since beginning with the RAAM clinic and is currently following one of the ADAPT principles (i.e., not to have substances within one hour of wakening).

27When asked if Dr. DS is aware of the appellant’s cannabis use, the appellant answered affirmatively. He testified that Dr. DS has always been concerned with his use of substances because of his diagnosis of schizophrenia and “in the past they argued about him stopping it [cannabis]”.

28Based on the totality of the evidence before me, and in light of the above, I find on a balance of probabilities, that the appellant is a person living with the mental health condition of SUD.

b. If the appellant is a person living with one or more mental health conditions, are any of these conditions likely to significantly interfere with his ability to drive a vehicle safely?

29The 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.

30As previously stated, the appellant’s driver’s licence was initially suspended by the Registrar with the reported medical conditions of SUD and Mental Health Condition. By letter dated March 18, 2022, Dr. DS confirmed that the appellant had obtained a 3-month period of mental and emotional stability. Based on this information and by letter dated March 21, 2022, the Registrar indicated that the appellant’s driving privilege remained suspended, but only for the reported medical condition of SUD.

31Based on the above, I find that the appellant’s “mental health condition with delusions” is not likely to significantly interfere with his ability to drive a vehicle safely and the Registrar abandoned that ground at the start of the hearing.

32As per its letter dated March 21, 2022, the Registrar is currently of the opinion that in order to consider reinstatement of the appellant’s driver’s licence, it requires confirmation from a qualified health care professional that the appellant has been abstinent from all “problematic substances” for a minimum of six months.

33The respondent relies on s. 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.

34When questioned by the appellant what the Registrar meant by “problematic substances”, the respondent stated:

• problematic substances could include legal or illegal substances;

• the Registrar trusts an individual’s treating clinician to make a clinical judgment or decision which substances may be problematic for that individual; and

• with some mental health conditions, some substances may make the mental health condition worse.

35The appellant asserts that he feels the onus is on him to prove the case and he feels discriminated and stigmatized by this. He also asserts he is a responsible driver and referred to his Extended Driver Record Search For Criminal Code Convictions, which shows no evidence of driving under the influence of substances. He emphasized that cannabis is legal, a lot of people use it, he has severe PTSD and is using cannabis for this medical condition.

36In his Notice of Appeal, the appellant wrote that he does not smoke [cannabis] while driving. At the hearing he testified that he “tries to avoid driving within 1-2 hours of smoking cannabis”. Later he stated that he thought that cannabis was out of one’s system within four hours. The appellant testified that currently he smokes 1-3 g of a “medium” THC potency cannabis daily.

37When questioned why he had not submitted a completed SUA form at any time since first requested by the Registrar nearly six months ago, the appellant stated that he asked Dr. DS to complete the form, but she did not want to fill out or sign the form.

38Furthermore, when questioned if the RAAM clinicians were aware that the appellant’s driver’s licence was under suspension for the medical condition of SUD, the appellant stated that he was “not sure” or “may not have told” them. He stated that “he likely” told the ADAPT staff that his driver’s licence was under suspension.

39The 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 his ability to drive a motor vehicle safely.

40As noted above, although I am not bound by the CCMTA Standards, they may be persuasive.

41I accept the safety concerns set out in Chapter 15 of the CCMTA Standards, with respect to cannabis and driving, specifically:

• no matter whether the cannabis is used for medical or recreational reasons…no one should drive during the five-hour period following inhalation of cannabis (smoking or vaping) or for eight hours following oral ingestion (cookies or brownies);

• 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; and

• many users of medical marijuana exceed the average usage rates (1.5 g or 3 joints a day) by considerable margins…should be counselled to avoid driving completely during periods of over-average consumption.

42As stated previously, the appellant testified he uses cannabis for medical purposes; has recently reduced his daily cannabis consumption to 1-3 g a day; tries to avoid driving within 1-2 hours of smoking cannabis; and thought that cannabis was out of one’s system within four hours.

43Furthermore, in this particular case, I agree with the Registrar’s position that further information from the appellant’s treating health care professional is needed prior to reinstating his driver’s licence. I am basing my opinion on the following reasons:

• the appellant only recently acknowledged that he was smoking too much cannabis;

• he only recently reconnected with his ADAPT clinic and connected with a RAAM clinic to address his cannabis use;

• by law the Registrar may require a driver to provide satisfactory evidence that he is able to drive safely;

• the appellant has not yet submitted a completed SUA form;

• Dr. DS omitted answering “Question 8” on the completed MHD form (“To the best of your knowledge, has the patient had an active SUD (not including tobacco) within the last 12 months”);

• the only information from a qualified health care professional regarding the appellant’s substance use comes from the unsolicited MCR dated August 27, 2021;

• the appellant is “not sure” or “may not have told” the RAAM clinic that his driver’s licence is currently suspended for the medical condition of SUD; and

• he does not have a favourable recommendation for reinstatement of his driver’s licence from an acceptable health care professional.

44I acknowledge that the appellant feels stigmatized, blacklisted and discriminated by this situation. However, I find that neither the Registrar nor the CCMTA Standards are biased or prejudiced against persons living with mental health conditions. The Registrar acts upon any information it receives about any medical condition that may impact safety to drive. I find this means that the Registrar is not assuming that the appellant is unsafe to drive because he has a mental health condition.

45I commend the appellant for seeking out assistance for his SUD, and I encourage him continue with these programs.

46I encourage the appellant to inform the RAAM clinic that his driver’s licence is suspended for SUD. At the appropriate time, the RAAM clinic may be able to assist him with a favourable recommendation for the reinstatement of his driver’s licence. Furthermore, I encourage the appellant to inform Dr. DS that he is working with a RAAM clinic to reduce his cannabis usage.

47Based 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 of SUD is likely to significantly interfere with his ability to drive a vehicle safely.

48I 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.

F. ORDER:

49For 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. 1Mental Health Act, R.S.O. 1990, Chapter M.7
2. 2Pursuant 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”.