Date: 2021-10-18

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:

C.H.

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Erica Weinberg, Member

APPEARANCES:

For the Appellant: C.H., Self-represented C.H.’s mother, Witness

For the Respondent: Stephen Grootenboer, Agent

Heard by Teleconference: September 29, 2022

A. Overview:

1C.H. (“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 August 29, 2022.

2The issue in this appeal is whether the appellant is a person living with a mental health condition which is likely to significantly interfere with her ability to drive a vehicle 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 a mental health condition which 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 is a person living with 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 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 that the licence should remain suspended on a balance of probabilities.

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. PRELIMINARY ISSUE:

13At the outset of the hearing, the appellant requested a Confidentiality Order.

14I proceeded to hear the appellant’s submissions on this topic, keeping in mind that the appellant had the onus to displace the general rule of openness. The open court principle takes primacy over privacy interests; exceptions to openness must be proven on a case-by-case basis: Toronto Star at para. 91.

15The respondent supported the appellant’s request for a Confidentiality Order.

16I am satisfied that the appellant’s submissions met the three-part test as per Sherman Estate v. Donovan, 2021 SCC 25.

17In considering the appropriate order, I am mindful of the requirement that I must choose an order that intrudes on the open court principle as minimally as possible. As a result, I have decided to make an order that the appellant shall be referred to using her initials in this decision.

18A separate Confidentiality Order will be issued and shall be noted in the Tribunal’s physical and electronic filing system.

E. EVIDENCE AND ANALYSIS:

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

19I find, on a balance of probabilities, that the appellant is a person living with a mental health condition.

20On August 17, 2022, the Ministry of Transportation received an unsolicited Medical Condition Report (“MCR”) from in-patient psychiatrist, Dr. W. On the MCR, Dr. W. indicated her opinion that the appellant was suffering from a psychiatric illness, specifically acute psychosis.

21In response to the MCR, and by letter dated August 19, 2022, the Registrar suspended the appellant’s driver’s licence, effective August 29, 2022 with the reported medical condition of Mental Health Condition. The letter indicated that when the appellant’s condition improved, she should have her treating physician, specialist or nurse practitioner complete a Mental Health Disorder (“MHD”) form.

22Dr. V., the appellant’s temporary out-patient psychiatrist at the hospital’s “mood urgent clinic” completed the MHD form on September 20, 2022. On this form, Dr. V. indicated that:

• the appellant had a provisional diagnosis of Bipolar Disorder Type I after being admitted to hospital with a major depressive episode with psychotic features from August 16-29, 2022. It is hypothesized that this was preceded by a period of mania. This was her first episode of mental illness. She expressed to me in our initial appointment some disagreement with the provisional diagnosis;
• the onset of her most recent illness episode was 6-12 months ago;
• she is stable with on-going mild symptoms for less than three months;
• she was hospitalized one time in the past 12 months; and
• she is on medication, reporting that on two occasions she took less than the prescribed amount of medication.

23The appellant testified that in the past year she has not had any mental illness, including major depressive disorder, mania or psychosis. She did admit to being negative, pessimistic and depressed, but not a “major” depression. The appellant describes the details in Dr. V.’s consultation note of September 6, 2022 and completed MHD form as being challenges, stress, psychological torment, an existential crisis, obsessions or panic or a misunderstanding about a medical situation she was going through and being in her head too much. In addition, the appellant stated that she spoke to Dr. V. directly and Dr. V. told her she did not have Bipolar Disorder. The appellant pointed to a specific portion of Dr. V.’s note. This specific portion of the note reads, “rule out Bipolar Disorder Type I”, not “ruled out” [emphasis added]. Furthermore, Dr. V.’s note states, “[the appellant] believes she has no diagnosis, that [she] was obsessed and freaking out about [her] job, [she] needed more filling [in] of [her] day because then [her] mind starts to go. She acknowledges that her thinking was not based in reality, but again, attributes this more so to environmental factors…”.

24When asked what she attributes to the improvements in her health over the past month, the appellant stated that she: now has an “outside perspective”; has “separated herself from the situation”; and is talking about the past logically. When specifically asked if the prescribed mental health medications could be responsible for her improvements, she answered: she doesn’t know or can’t tell; didn’t feel different after missing one dose; and possibly the medications help organize her thoughts.

25The appellant testified that she was prescribed and is currently taking the medications Lithium and Abilify.

26Based on my knowledge as a licenced and duly qualified physician in the Province of Ontario¹, I am aware that Lithium is a “mood stabilizer” used for the treatment of Bipolar Disorder and that Abilify is an “antipsychotic” medication used in the treatment of psychosis.

27The appellant’s mother testified that she moved back to Canada in May 2022 to be with her daughter. She thought her daughter suffered from depression twice, but not “major” depression. She indicated that she felt her daughter’s depressive episodes were related to her daughter’s relationship breakups, the last being within the last 12 months. She further indicated that her daughter’s “stress had reached a breaking point” and she was “hyper anxious” about her health prior to going to hospital. The appellant’s mother does not agree with the psychiatrists’ diagnosis of Bipolar Disorder, stating that she knows someone who has Bipolar Disorder, who even on medication is always “all over the place”. When asked if she agreed with the diagnosis of depression with psychosis, she answered that she did not know.

28The appellant’s mother attributes her daughter’s rapid and significant improvement in hospital and at home to “rest”, “getting away from the situation”; “needing a pause”, talking to professionals and her boss, and her daughter’s ability to now see things more clearly. When questioned whether the medications prescribed to her daughter played a role in in her daughter’s improvement, the appellant’s mother stated that she is aware that the medications prescribed are for “organizing thoughts” and helping “balance brain chemistry” but she did not know how much of a role the medications played.

29I prefer the opinions of Drs. V. and W., both qualified psychiatrists, over that of the appellant and her mother, that on the balance of probabilities, the appellant has a mental health condition. Dr. W. observed the appellant during her near two-week hospitalization and both Drs. V. and W. observed the appellant’s rapid response and improvement to prescribed mental health medications. The appellant was detained involuntarily under the Mental Health Act² for approximately one-half of her recent hospitalization and is currently taking two mental health medications. On the MHD form, under “What is the patient’s primary mental illness”, Dr. V. had the choice of 13 different pre-populated answers, including “none” and “other”. Dr. V. indicated on the MHD form that the appellant’s primary mental illness is Bipolar Disorder. Neither the appellant nor her mother is a healthcare professional. I acknowledge that the appellant and her mother are of the belief that an underlying mental health diagnosis is not responsible for the appellant’s recent behaviours or concerns and feel that these behaviours or concerns were “more so due to environmental factors and stressors”. Dr. V. in her September 6, 2022 note states that, “We discussed that life stressors certainly could have played a role in precipitating/perpetuating [the appellant’s] symptoms, but that this does not exclude an underlying mental illness”.

30After a careful consideration of all the evidence available to me, I find on a balance of probabilities 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?

31The 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.

32As per its September 21, 2022 letter to the appellant, the Registrar is currently of the opinion that in order to reinstate the appellant’s driver’s licence, it requires confirmation of a 3-month period of mental and emotional stability.

33The respondent’s representative stated that the Registrar is relying on the CCMTA Standards which were developed by physicians and professionals and are used throughout Canada. He pointed to Chapter 14, specifically 14.6.1 of the CCMTA Standards, “Psychiatric disorder – All drivers”. I note that this CCMTA Standard states that all drivers 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;
• a treating physician supports a return to driving, for drivers who have stopped driving due to a psychiatric disorder; and
• conditions for maintaining a licence are met.

34The Registrar’s representative emphasized some information in Dr. V.’s consultation note including, the appellant is in the very early stages of recovery, guidelines would dictate that the appellant continues with her treatment for a minimum of six months of wellness following this episode in order to prevent relapse, and the appellant is aware from previous discussions that a much longer period of stability is generally needed in order to have her driver’s licence reinstated. He also stated that psychosis, itself, can alter one’s judgment and motor skills, both of which are needed for safe driving.

35The appellant spoke to the fact that she is feeling back to normal, is stable and has mechanisms in place going forward, including therapy.

36When the appellant was questioned regarding why she is taking the prescribed mental health medications if she does not believe that she has a mental health condition, she stated that she is being compliant to get her driver’s licence reinstated. When questioned if she would continue her prescribed medications once her driver’s licence was reinstated, she answered affirmatively.

37The 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 motor vehicle safely.

38I acknowledge that the appellant is feeling well and as of the date of the hearing, has been out of hospital for about one month.

39Although I am not bound by the CCMTA Standards, they may be applied by this Tribunal. The CCMTA Standards speak to the role of an individual’s insight as being a critical consideration when assessing the risk of an episodic impairment of functional ability due to a psychiatric disorder. It specifies, that for any driver insight, or self-awareness, is an important factor. Deciding not to drive because you are not feeling well is not only a sign of good judgement, it is also a sign that you are aware of the effects that your temporary condition causes for your driving.

40As per the CCMTA Standards, in the context of a driver with a medical condition, insight means that a driver:

• is aware of their medical condition;
• understands how the condition may impair their functional ability to drive; and
• has the judgment and willingness to comply with their treatment regime and any conditions of licensing.

41Based on the evidence before me, I find on a balance of probabilities that the appellant has reduced insight into her mental health condition. The appellant currently does not believe or has not accepted that she has a mental health condition. Following her discharge from hospital (August 29, 2022) and prior to her first appointment with Dr. V. (September 6, 2022), the appellant missed a dose of her Abilify and reduced her dose of Lithium on her own volition. In addition, the appellant is planning to question her new psychiatrist, whom she will start with in the coming weeks, whether or not she needs to remain on her medications for six months. Furthermore, I note that Dr. V.’s note actually says, “Guidelines would dictate that she continue[s] with her treatment for a minimum of 6 months of wellness following this episode, in order to prevent relapse, and that longer treatment would certainly be needed in the event that there is an underlying disorder, which seems likely.” [emphasis added]. I acknowledge that the appellant testified that she would “remove herself from the situation”, (i.e., driving) if she felt “impaired” by her health. However, the appellant denies that she has ever suffered from mania or psychotic features/psychosis. An episode of acute mania or acute psychosis would be an acute mental health event, which may result in episodic impairment of functional ability as per the CCMTA Standards.

42Moreover, the appellant does not currently have support from a treating physician for a return to driving for her mental health condition. Dr. V.’s note states, “She is aware from previous discussions that a much longer period of stability is generally needed in order to have [her driver’s licence] reinstated”.

43Based on the totality of the evidence before me and after careful consideration, I find 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.

44I 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:

45For 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”.
2. 2Mental Health Act, R.S.O. 1990, Chapter M.7