An 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 licence pursuant to Section 47(1) of the Act.
Between:
Melissa White
Appellant
-and-
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
ADJUDICATORS:
Erica Weinberg M.D., Member
Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant:
No Appearance
For the Respondent:
Kyle Biel, Agent
Heard by teleconference:
August 17, 2022
Decision to proceed in the absence of the appellant
1A hearing of this appeal commenced on August 17, 2022, at 9:30 a.m. via teleconference. The appellant, Melissa White, and/or her representative did not attend. The hearing was delayed for 35 minutes until 10:05 a.m. to allow the appellant extra time to attend. Efforts were also made through the Case Management Officer to contact the appellant, however, this proved to be unsuccessful.
2We are satisfied that the appellant was provided the Notice of Hearing (“NOH”) and she knew or ought to have known about the hearing today. The appellant also attended a case conference prior to today and consented to August 17, 2022 at 9:30 a.m. as one of the dates for her hearing. The NOH was mailed out two weeks prior to today’s hearing, with the specific date/time and call-in information. Furthermore, a reminder email was sent to the parties on August 15, 2022. The Licence Appeal Tribunal (the “Tribunal”) did not receive any information advising of a change in contact information for the appellant.
3Based on the above, we are satisfied that sufficient notice was provided to the appellant and enough time was granted to allow her and/or her representative to attend. Therefore, the hearing was commenced in the absence of the appellant and verbal and documentary submissions were received from the respondent. We did take into account all documentary evidence provided by the appellant prior to the start of the hearing.
The Statutory Powers Procedure Act, R.S.O. 1990, c. S.22
4We take note that the Statutory Powers Procedure Act states:
Effect of non-attendance at hearing after due notice
7 (1) Where notice of an oral hearing has been given to a party to a proceeding in accordance with this Act and the party does not attend at the hearing, the tribunal may proceed in the absence of the party and the party is not entitled to any further notice in the proceeding.
Same, electronic hearings
(3) Where notice of an electronic hearing has been given to a party to a proceeding in accordance with this Act and the party neither acts under clause 6 (5) (c), if applicable, nor participates in the hearing in accordance with the notice, the tribunal may proceed without the party’s participation and the party is not entitled to any further notice in the proceeding.
Background
5The appellant appeals a decision of the Registrar of Motor Vehicles (the “Registrar” or the “respondent”) to suspend her driver’s licence for medical reasons, as set out in their letter dated December 17, 2021. The Registrar suspended the appellant’s licence after receiving an unsolicited Medical Condition Report (“MCR”) from an emergency room physician at Niagara Health – St. Catharines site, who subsequently requested a psychiatric assessment under the Mental Health Act, R.S.O. 1990, c. M.7 (the “MH Act”). The appellant would eventually receive a Form 42 Notice to Person under Subsection 38.1 of the MH Act of Application for Psychiatric Assessment under Section 15 or an Order under Section 32 of the Act.
6In the December 17, 2021 letter, the respondent indicates a reported condition of substance use disorder which is likely to affect her ability to drive safely. In the appellant’s Notice of Appeal (“NOA”) she states that she was speaking to a police officer, they were concerned and they wanted her to speak to a mental health professional. She indicated that she voluntarily went to the hospital. The Form 42 certifies that the emergency room physician had reasonable cause to believe that the appellant was showing a lack of competence to care for herself and the appellant was required, by law, to remain at the hospital to be assessed by a psychiatrist.
7Upon suspension of her driver’s licence, the appellant was provided a substance use questionnaire by the Registrar which she was asked to have completed by her healthcare practitioner. This form was not completed and returned.
Issue
8The issue to be determined is whether the appellant’s medical condition, if any, is likely to significantly interfere with her ability to drive a motor vehicle safely.
Result
9For the reasons set out below, we confirm the respondent’s decision.
Law
10Sections 203 and 204 of the Highway Traffic Act (“HTA”) allow a medical practitioner to report to the Registrar about a person who, in the practitioner’s opinion, has or appears to have a medical condition, functional impairment or visual impairment that may make it dangerous for that person to operate a motor vehicle.
11The respondent has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence for any of the grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”
12One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition that is likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA states:
An applicant for or a holder of a driver’s licence must not…
(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely; or
(b) be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.
13Section 14(2)(a) of the Regulation allows the Minister of Transportation (“Minister”) to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“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. In this matter, the Registrar is relying on the CCMTA standard relating to substance use disorder.
14Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.
15The respondent has the burden of establishing the ground for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the respondent.
Evidence and Analysis
16In her NOA (Exhibit #1), the appellant states that she does not have a substance abuse history/addiction and has never been diagnosed as such. She acknowledges a history of mental health issues including complex PTSD, generalized anxiety disorder and depression. She wrote that she has a treatment team in New York but has had difficulty accessing psychiatric care since coming to Ontario in 2020. She goes on to write that the suspension of her licence has had “a detrimental effect” on her personal life and has greatly affected her livelihood and ability to spend time with her daughter.
17The appellant is requesting that the respondent review her driving suspension and the “lack of information/justification” provided by the attending emergency room physician and psychiatrist and reinstate her driver’s licence. According to her application to the Tribunal, she reports being compliant with her medication and follows her treatment regimen which includes prescribed medications, “regular urinalysis tests” which are clean for non-prescription medications and seeking professional help when necessary. She feels that she was penalized for going to the hospital and following her treatment plan to seek help.
18There were various medical reports dating back over 15 years. These documents appear to confirm a past history of illicit drug use including cocaine. However, we placed limited weight on these documents given how long ago they were prepared and the fact that they may no longer be applicable. We also note that the evidence could not be tested without receiving testimony from the appellant. We accept that this is not the appellant’s first interaction with the Registrar and her licence has been suspended in the past for similar reasons as the current situation.
19Since the appellant did not appear, much of the documentation which forms the disclosure could not be tested and/or cross-examined by the respondent. We also did not have an opportunity to ask questions clarifying the contents of the NOA, namely the appellant’s reasons for the appeal.
Respondent’s submissions
20The respondent’s submissions sought to reinforce and remind the Tribunal of their authority to suspend a driver’s licence if there are safety concerns due to a substance use disorder and/or a mental, emotional, nervous or physical condition or disability that will interfere with the safe operation of a motor vehicle. In this case, the respondent provided substantive materials referencing the HTA and the CCMTA Standards confirming that the appellant suffers from a condition that will likely significantly interfere with her ability to operate a motor vehicle safely.
21The respondent also notes that the MCR indicates a condition of suspected “stimulant use disorder and substance-induced psychosis.” The emergency room doctor also expressed concern about “erratic driving and putting others at risk”, however, this could not be properly interrogated.
22We have based our decision on the information that was available to us on the hearing day. We placed great weight on the evidence provided by the respondent. We took the opportunity to ask questions to clarify the documentary evidence provided by the respondent. Most of that evidence is contained in Exhibit #4 which is the respondent’s Book of Documents.
23From a medical standpoint, it is clear to us that we are dealing with an appellant who suffers from a medical condition that will likely significantly interfere with her ability to drive safely and possibly cause a hazard to herself or other road users. We rely on the fact that the emergency room doctor found it necessary to complete a Form 42 so that the appellant was required, by law, to remain at the hospital to be assessed by a psychiatrist, and the information in the MCR written by the consulting psychiatrist. We placed significant weight on the unsolicited MCR received from the psychiatrist and the overall reason for her visit that day.
24We view the appellant’s mental health issues, including her substance use problem, as unresolved. She has not provided a report on the current status of her condition, nor has she provided the respondent with the information they have requested in order for their Medical Review Team to assess if her licence can be reinstated.
25Finally, we note that the Notice of Hearing which was served on the appellant states:
If you do not attend the hearing, the Tribunal may make a decision in your absence, and you will not be entitled to any further notice in the proceeding.
Does the appellant have a medical condition?
26At the hearing, the Tribunal received evidence from the respondent confirming the appellant’s medical condition. We do not have any information which provides us reassurance of a long enough period of abstinence, in this case six (6) months abstinence from all illicit substances, which would make the appellant eligible for consideration of driver licence reinstatement by the Registrar.
27There is an abundance of evidence to support the fact that the appellant does have a medical condition thereby satisfying the first element of the test. In fact, the appellant’s own documentary evidence suggests an admission of past illicit drug use. It is also clear that she has an unresolved mental health condition. The appellant denies substance abuse history/addiction despite the fact that we have medical documents confirming otherwise. The documentary evidence suggests that the appellant has a treatment plan from the U.S. including “regular urinalysis tests that are clean for non-prescription medications”, however, we could not confirm this since the appellant did not appear. Finally, the respondent’s package contains old evidence submitted on behalf of the appellant, including past cocaine use.
Is this condition likely to significantly interfere with his ability to drive safely?
28Although she did not appear, the documentary evidence reviewed suggests that the appellant went to hospital and was assessed due to concern for her own safety stemming from mental health issues. On the MCR the consulting psychiatrist indicated that the appellant had the diagnoses of suspected substance use disorder (stimulant use disorder) and substance-induced psychosis. As a duly qualified physician in the province of Ontario1, Dr. Weinberg is aware that psychosis is a condition in which a person has trouble distinguishing between what is real and what is not, and can affect the way a person thinks, feels and behaves. Psychosis alone can affect safety to drive. Furthermore, the psychiatrist also indicated on the MCR “driving erratically and putting others at risk”.
29A completed Substance Use Assessment form was not provided by the appellant despite it being a condition licence-holders submit to the examinations as required by the Registrar: O. Reg 340/94, s. 15(1.1). This form would offer information vital to assessing the possible link between the appellant’s substance use, mental health deficits and unsafe driving. The respondent’s request was never complied with by the appellant.
Conclusion
30We find that the appellant suffers from substance use disorder. The fact that she chose not to appear at the hearing meant that her evidence could not be tested, cross-examined or otherwise clarified, and therefore we gave the appellant’s NOA submissions less weight than the evidence provided by the respondent.
31We also have no indication that the appellant demonstrated a significant period of abstinence from illicit substances to give assurance that her substance use disorder is under control.
32Along with the HTA, section 15.6 of the CCMTA Standards provides the guidelines for assessment. We agree that the medical standards are clearly established in this guideline and their application in this case are prudent. The appellant has failed in meeting the guideline and presents with substance use disorder that is not resolved and there is no substantive medical opinion with regards to her medical condition to support the reinstatement of her driver’s licence.
33The dangers of the impact of substance use, including substance-induced psychosis, on highway safety are well known and we take judicial notice of it. Based on a careful consideration of all the evidence before us, we are satisfied 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. Therefore, the respondent’s decision is confirmed.
WE ORDER AS FOLLOWS:
34For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the appellant’s driver licence is confirmed.
LICENCE APPEAL TRIBUNAL
_____________________________
Erica Weinberg, Member
____________________________
Raymond C. Ramdayal, Member
Released: September 25, 2022
Footnotes
- Pursuant 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”.