Date: 2022-01-10

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:

T. P.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

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

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: December 21, 2021

A. Overview:

1T. P. (the appellant) appeals the 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”), effective November 7, 2021.

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 her 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 has a mental health condition that is likely to significantly interfere with her 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 has a medical condition, specifically a mental health condition, which is likely to significantly interfere with her ability to drive a vehicle safely.

6To 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 her 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. EVIDENCE AND ANALYSIS:

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

13I find on a balance of probabilities, that the appellant is a person living with a mental health condition.

14The respondent referred to recent medical evidence submitted by the appellant’s family doctor, which stated that the appellant is a person living with a mental health condition, specifically borderline personality disorder.

15In her evidence, the appellant did not dispute that she is a person who has been living with a mental health condition for over 15 years and that her current mental health diagnoses are borderline personality disorder and complex post traumatic stress disorder.

16Based on the above, I find 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 her ability to drive a vehicle safely?

17The Registrar has the burden of establishing that the appellant’s mental health condition is likely to significantly interfere with her ability to drive a motor vehicle safely. I find that the Registrar has met that burden.

18On October 26, 2021 the Ministry of Transportation (“the Ministry”) received an unsolicited Medical Condition Report (“MCR”) and a copy of a handwritten emergency department (“ED”) note from ED physician, Dr. N. at hospital #1. On the MCR, Dr. N. indicated that he was of the opinion that the appellant was suffering from cognitive impairment secondary to a psychiatric disorder and a psychiatric illness or disorder which involves a “plan involving a vehicle, potential harm to self and others”, which may make it dangerous for the appellant to operate a motor vehicle.

19Dr. N.’s handwritten note indicated that the appellant: was discharged from hospital #2 that morning; was brought by police from the upper floor of the parking garage of hospital #1 and the Mobile Crisis Intervention Team (“MCIT”) had been involved; exhibited erratic behaviour; threatened to drive off the roof; threatened herself with scissors; locked the car door; and refused to open the car door. Furthermore, Dr. N. wrote that the appellant complained of pain in her shoulder and wrote “states secondary to struggle with police who tried to pull her out from the car”. From his note, Dr. N.’s examination of the appellant did not show evidence of trauma or dislocation of her shoulder. In addition, Dr. N. indicated that he had issued Forms 1 (Application by Physician for Psychiatric Assessment) and 42 (Notice to Person under Subsection 38.1 of the Act of Application for Psychiatric Assessment under Section 15 or an Order under Section 32 of the Act) under the Mental Health Act¹ (the “MHA”).

20In response to the MCR, by letter dated October 28, 2021, the Registrar suspended the appellant’s driver’s licence, effective November 7, 2021. The letter indicated that when the appellant’s mental health condition improved, she should have her treating physician, specialist or nurse practitioner complete a Mental Health Disorder (“MHD”) form.

21The appellant testified that she has engaged in acts of self harm in the past (e.g. using scissors), has had suicidal thoughts in the past, “knows not to get into a car if having suicidal thoughts” and has no desire to hurt others.

22In addition, the appellant stated that in the past, her community mental health counsellor (“counsellor”) told her that if she needed extra mental health supports, she should go to hospital #1 in an urban centre.

23The appellant testified that 2-3 days prior to the October 26, 2021 event, she drove to hospital #1 and parked her vehicle in the roof top parking lot. The appellant declined to disclose what she went to hospital #1 for on that day but stated that she was transferred from hospital #1 to hospital #2, a hospital known for addictions and mental health treatment, for another assessment. The appellant denied being admitted to an in-patient floor but stated that she was discharged from hospital #2 on the morning of October 26, 2021. The appellant testified she took a taxi from hospital #2 back to the parking garage at hospital #1. The appellant stated that she had a prebooked telephone call with her counsellor at that time, so she took this call during the taxi ride and continued the call when she got into her car parked on the roof top parking lot of hospital #1. The appellant denied that: the keys were in the ignition; she had turned on the ignition; or the car doors were locked. She admitted to having scissors in the car. The appellant stated that her counsellor called the police during their call, but “could not comment on why her counsellor did this”. The appellant testified that she was: upset because she did not get the proper treatment or the treatment she was hoping for at hospital #2; was having suicidal thoughts and thoughts of self-harm at that time; wanted to jump in front of a train; and did not tell anyone that she was going to drive her car off the parking garage. The appellant stated that when the MCIT/police arrived, she did not want to be helped by them, did not resist them and opened the car door immediately when requested.

24The appellant testified that after her October 26, 2021 “5 minute” assessment by Dr. N. in the ED at hospital #1, she was once again transferred to hospital #2, was admitted involuntarily to a psychiatric floor under the MHA, and was discharged home on November 1, 2021.

25On November 3, 2021, the appellant spoke with Dr. B., her family doctor for the past 4-5 years. The appellant denied asking Dr. B. whether Dr. B. had received any recent reports from either hospital #1 or #2. The appellant testified that she told Dr. B. that the reports were wrong and asked Dr. B. to complete the Ministry’s MHD form.

26On the completed November 3, 2021 MHD form, Dr. B. indicated that:

• the appellant has a primary mental illness diagnosis of personality disorder;

• her most recent illness episode was less than 3 months ago;

• her current status is stable – symptoms resolved;

• her current symptoms are depressive symptoms;

• she has no issues with cognition, attention, memory, substance use disorder or judgment;

• she has had one admission to hospital due to her psychiatric illness in the past 12 months;

• she is prescribed medications, is adherent to the recommended treatment regimen and is under monthly medical supervision from a regulated health practitioner; and

• she has appropriate insight/sufficient understanding of her medical condition and the impacts on their functional ability to drive.

27In the “Comments” section of the MHD form, Dr. B. wrote, “never any indication of diagnosis causing driving impairment”, “patient denies threatening any self-harm related to driving (and this has never been the case in the past)” and “loss of licence would be significantly detrimental to condition, likely leading to deterioration as regular work has lead to significant improvement”.

28By letter dated November 18, 2021, the Ministry requested confirmation from the appellant’s treating physician, specialist or nurse practitioner of a 3-month period of mental and emotional stability.

29The appellant testified that after the receipt of the Ministry’s November 18, 2021 letter, she once again spoke with Dr. B. on the phone and Dr. B. agreed to fill in another MHD form.

30On Dr. B.’s November 24, 2021 completed MHD form, I note the following differences compared to her November 3, 2021 MHD form:

• the appellant’s onset of most recent illness episode was greater than 12 months ago;

• her current status was stable with ongoing moderate symptoms which have remained stable/unchanged for greater than 12 months; and

• her current symptoms were depressive symptoms and emotional control.

31In the comments section of the November 24, 2021 MHD form, Dr. B. wrote, “Patient has never exhibited/expressed any thought of self harm in relation to driving. She denies this being the case when seen in emergency room. She has…fluctuating episodes of emotional dysregulation. When she has thoughts of self harm, she always seeks appropriate care. She has never driven under the influence of substance/alcohol and states she knows not to do this…”

32The appellant testified that from November 26, 2021 until December 7, 2021 she was once again admitted to hospital #2, initially as an involuntary patient under the MHA, but stayed on as a voluntary patient.

33As per its letter to the appellant dated December 14, 2021, the Registrar is currently of the opinion that the appellant’s driver’s licence should remain under suspension until it has confirmation from the appellant’s treating physician, specialist or nurse practitioner of a 3-month period of mental and emotional stability and that the appellant’s depressive and emotional control symptoms have been successfully treated/resolved.

34The respondent stated that the Registrar’s opinion is consistent with Chapter 14 and specifically 14.6.1 of the CCMTA Standards. The respondent highlighted that drivers with mental health or psychiatric disorders 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 and a treating physician supports a return to driving.

35The respondent also commented that the appellant has had two hospitalizations for mental health reasons since October 2021, she was last released from hospital less than one month ago and that her mental health condition is not currently stable.

36The appellant argued that:

• Dr. B. knows her much better than Dr. N. who assessed her for five minutes;

• Dr. N.’s information regarding what happened on the roof top parking lot was hearsay from the police and Dr. N. did not ask her any mental health questions;

• Dr. N. got paid to send the report to the Ministry. Dr. N.’s handwritten ED note is very difficult to read; Dr. N. misconstrued information given to him by the police. There is no evidence to prove what Dr. N. wrote is true and he was not truthful;

• her counsellor with whom she was on the phone during the whole event confirmed to the appellant that she never threatened to do anything with her car;

• the Ministry is ignoring the two reports from Dr. B., who knows her the best. Dr. B.’s reports state that she has appropriate insight;

• people with suicidal thoughts can still have good judgment. She did not act on her suicidal thoughts; therefore, she has good impulse control;

• she knows not to get into a vehicle if she is having suicidal thoughts. She got into her vehicle only to put some things inside and to continue her conversation with her counsellor;

• she was not driving while having suicidal thoughts; therefore, the Ministry should not get involved;

• there is no proof that she is an unsafe driver. Her driving record is clean, with no accidents, no demerit points and no criminal convictions;

• every doctor and psychiatrist that she has spoken to since losing her driver’s licence supports her getting it back;

• the Ministry policies/CCMTA Standards are outdated, biased and prejudiced against persons with mental health conditions; and

• the Ministry is assuming that she is unsafe to drive because she has a mental health condition.

37Based on the totality of the evidence before me, it is apparent that there are inconsistencies in the evidence presented. It is also apparent that Dr. N., in his written report, is, in part, referring to hearsay evidence from the police which the appellant disagrees with or refutes. Furthermore, either party could have called or subpoenaed witnesses or produced additional documents to support their case, but they did not.

38The overriding consideration in this appeal is whether the Registrar has proven, on a balance of probabilities, that the appellant’s mental health condition is likely to significantly interfere with her ability to drive a vehicle safely.

39While I agree with the appellant that the majority of persons living with mental health conditions are safe to drive, those who normally are safe to drive, may at times have periods when their mental health condition is likely to significantly interfere with their ability to drive a vehicle safely.

40I find that neither the Ministry nor the CCMTA Standards are biased or prejudiced against persons living with mental health conditions, as the appellant asserts. As stated by the respondent at the hearing, the Ministry’s investigation into whether or not the appellant’s medical condition is impacting her safety to drive was not arbitrary but was triggered by unsolicited medical information it received. The respondent stated that the Ministry is not singling out persons living with mental health conditions. Rather, the Ministry acts upon any information it receives about any medical condition that may impact safety to drive. I find this means that the Ministry is not assuming that the appellant is unsafe to drive because she has a mental health condition.

41While I agree with the appellant that Dr. N. was getting paid to both assess the appellant on October 26, 2021 and to fill out the MCR report sent to the Ministry, I would like to remind the appellant that most, if not all of the health care workers she encounters, whether in hospital or in the community, are paid for their employment.

42I accept the appellant’s testimony and Dr. B.’s written comments regarding the importance of the appellant’ driver’s licence for her ability to work and for her mental health. However, my task is not to determine if reinstatement of the appellant’s driver’s licence is in the appellant’s best interests.

43I acknowledge and accept that the appellant has “a clean driving record”.

44I also acknowledge that the appellant stated that every doctor and psychiatrist that she has spoken to since losing her driver’s licence supports her getting it back. However, the evidence shows that the appellant has not spoken to or updated her community psychiatrist since mid October 2021. The appellant testified that she was started on an additional mental health medication by hospital #2.

45Furthermore, I acknowledge that the appellant feels as if the Ministry is ignoring the two reports sent in by Dr. B. However, I would like to remind the appellant that the respondent referred to inconsistencies between Dr. B.’s two reports, dated less than three weeks apart, and Dr. B.’s noted changes in appellant’s mental health status and symptoms in the time period between the reports. I find that this means that the Ministry is not ignoring Dr. B.’s reports. In addition, as was disclosed at the hearing, the appellant was admitted to hospital #2 under the MHA two days after Dr. B.’s second report.

46Based on the totality of the evidence available to me, I find that in order to determine on a balance of probabilities, if the appellant’s mental health condition is likely to significantly interfere with her ability to drive a vehicle safely, I do not need to make a finding of whether to admit Dr. N.’s hearsay evidence or to make a finding of which parties’ evidence I prefer concerning the events surrounding the parking lot event on October 26, 2021. Nor do I need to make an inference as to the reasons why the appellant chose not to answer certain questions presented to her, why neither party called or subpoenaed witnesses nor presented additional information to support their case.

47When considering the evidence as a whole, I find that the appellant’s mental health condition has recently been unstable. She has had two hospitalizations for her mental health since late October 2021. As of the date of the hearing, the appellant has been out of hospital for less than one month, has not reached out to or connected with her community psychiatrist since mid-October 2021 and currently does not have a counsellor. The appellant stated that her previous counsellor has moved to a different position and the appellant has not yet been assigned a new one. In addition, the appellant testified, more than once, that she knows not to get into a vehicle if she is having suicidal thoughts. Yet on October 26, 2021, during a mental health crisis, she did just that. I find that this indicates that, at that particular time, the appellant demonstrated poor judgment. Furthermore, as judgment is part of insight, I find that, at that particular time on October 26, 2021, the appellant’s insight into her mental health condition and its impact on her ability to drive was limited.

48Based on the above, I find that the Registrar’s request for confirmation for at least three months of emotional and mental stability is both reasonable and prudent.

49I commend the appellant for seeking out extra help or assistance for her mental health when needed, and I encourage her to continue to keep her appointments with her community psychiatrist, Dr. B. and her new counsellor when appointed.

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 her ability to drive a vehicle safely.

51I acknowledge the burden, financial and otherwise, that the lack of a driver’s licence may be having on the appellant and I appreciate that both the appellant and Dr. B. feel that reinstatement of the appellant’s driver’s licence is in the appellant’s best interests for her mental health. 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.

E. ORDER:

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.

Footnotes

1. 1Mental Health Act, R.S.O. 1990, Chapter M.7