Evan Sauve v. Registrar of Motor Vehicles, 2023 CanLII 101093

Licence Appeal Tribunal File Number: 15207/MED

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:

Evan Sauve

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Dr. Isla McPherson, Member

Rebecca Hines, Member

APPEARANCES:

For the Appellant:

Evan Sauve, Appellant

For the Respondent:

Ian Sookram, Agent for the Registrar

Heard by Teleconference:

October 5, 2023

OVERVIEW

1Evan Sauve (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (“Registrar”) to suspend his Class G licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) after the Registrar received a report from a treating healthcare provider that the appellant suffers from a medical condition that may affect his ability to drive safely.

2The Registrar has the authority under s. 47(1)(g) of the Act to suspend or cancel a driver’s licence for any sufficient reason. Section 14(1)(a) of O. Reg. 340/94 under the Act (the “Regulation”) states that a holder of a driver’s licence must not suffer from any mental, emotional, nervous, or physical condition or disability likely to significantly interfere with their ability to safely drive a motor vehicle of the applicable class. Under s. 14(2)(b) of the Regulation, the Minister of Transportation may require a driver to provide satisfactory evidence that they are able to drive safely.

3The Registrar takes the position that the appellant has been diagnosed with a mental health condition, that is likely to significantly interfere with their ability to drive safely and that this provides sufficient reason to suspend their licence under s. 47(1)(g) of the Act.

4The appellant appeals the suspension under s. 50(1) of the Act. They deny that they suffer from a mental health condition, namely bipolar I disorder, and deny that they suffer from any other medical condition that interferes with their ability to drive safely.

5Pursuant to section 50(2) of the Act, after a hearing the Tribunal may confirm, modify, or set aside the decision or order of the Registrar.

ISSUES:

6The issue in this appeal is whether the appellant suffers from a mental health condition that is likely to significantly interfere with their ability to drive a motor vehicle safely.

7To resolve that issue, we will address the following questions:

1. Does the appellant suffer from a mental health condition?
2. If so, is this likely to significantly interfere with their ability to safely drive a motor vehicle?

8The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”

RESULT

9Having considered all the evidence and submissions and for the reasons that follow, we find that the Registrar has satisfied its burden to establish that the appellant suffers from a medical condition, namely a mental health disorder, that is likely to significantly interfere with his ability to safely drive a motor vehicle. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

BACKGROUND

10On August 8, 2021, the appellant was involved in a driving incident with the police. The police report indicates that he was driving erratically and acting in an abusive and aggressive manner in a deliberate attempt to antagonize the police. He also threatened suicide. The police apprehended the appellant under the Mental Health Act and submitted a police report to the Ministry of Transportation.

11Prior to this incident, the appellant’s licence was previously suspended as a result of a mental health condition from late 2017 to October 2020.

ANALYSIS

Does the appellant suffer from a Mental Health Condition?

12The evidence presented at the hearing establishes that the appellant suffers from a medical condition, namely a mental health condition.

13The Registrar’s position is supported by the following medical reports which will be discussed in greater detail below:

• Medical Condition Report (“MCR”) completed August 9, 2021 by Dr. Devarajan
• Medical Condition Report completed December 21, 2021 by Dr. Komar
• Mental Health Disorder form completed August 11, 2023 by Dr. Knutt

14On August 9, 2021, Dr. Devarajan, a treating physician, completed a Ministry of Transportation (“MTO”) MCR which noted that the appellant had a psychiatric illness with acute psychosis and referenced several recent police reports of erratic dangerous driving. One incident involved driving with numerous containers of gasoline in his vehicle. Under the additional comment section, the doctor states that the appellant is “acutely psychotic, suicidal, and homicidal.”

15In response to the submitted police report and MCR, the MTO sent the appellant a letter dated August 13, 2021, confirming that his licence had been suspended due to a mental health condition. The letter advised the appellant to take the letter to his physician, a specialist, or a nurse practitioner when the condition improves and have the following information sent to the Driver Medical Review Office:

• Details of the circumstances leading to the reported incident/collision on August 8, 2021, including any indication if any medical conditions(s) contributed to the reported incident/collision;
• Details of residual deficits and other disqualifying medical concerns, if any; and
• The completed Mental Health Disorder Form that was attached to the letter.

16The MTO then received a second MCR dated December 28, 2021, completed by psychiatrist Dr. W. Komar, who indicated that he had completed a court-ordered assessment of the appellant. Dr. Komar reported that the appellant had a substance use disorder due to using “cannabis and magic mushrooms” as well as a “mood disorder not otherwise specified/preferred differential diagnosis of bipolar I disorder with psychotic features.”

17In response to the second MCR, the MTO sent a letter to the appellant dated January 6, 2022, confirming the suspension of his driver’s licence, and again requesting the completion of the Mental Health Disorder form as well as a Substance Use Assessment form to confirm whether the appellant had a substance use disorder.

18The appellant responded to MTO’s correspondence the following year on June 27, 2023, when he submitted a medical report completed by Joemon Joy, a nurse practitioner. The report notes that the appellant was assessed at a walk-in-clinic and that the information was subjective. Further, that the appellant denied having a medical history and was not on medication, but he appeared well in the assessment.

19The MTO responded to this submission in a letter dated July 19, 2023, again requesting the completion of a Mental Health Disorder form and Substance Use Disorder form by the appellant’s physician, specialist, or nurse practitioner.

20On August 11, 2023, psychologist Dr. Knutt completed the Mental Health Disorder and Substance Use Assessment forms on behalf of the appellant. These reports indicate that the appellant has the following mental health conditions: behavioural/learning disability, ADHD, bipolar disorder, anxiety disorder, and substance use disorder. The report noted that the appellant’s condition had been stable for 6 to 12 months, but that he currently has moderate, ongoing symptoms that include symptoms of depression and anxiety. Dr. Knutt additionally checked off the box that the appellant has difficulty with judgement and that he had an active substance use disorder within the last 12 months. Under current comments, Dr. Knutt indicated that the patient is currently stable and is willing to accept responsibility for past misjudgments. The Substance Use Assessment form completed by Dr. Knutt on the same date indicates that the appellant suffers from moderate substance use disorder but has abstained from substances for 6-12 months.

21On September 5, 2023, MTO sent the appellant a letter confirming the suspension of his licence due to a mental health condition, but no longer due to a substance use disorder.

22The appellant testified that he was first diagnosed with bipolar disorder when he was medically discharged from the military in 2015, and he has had at least three hospital admissions under this psychiatric condition. However, he submits that it is unclear from his medical history whether he officially has this condition and attributes the symptoms that led to the bipolar I disorder diagnosis to alcohol and substance use.

23When the appellant was questioned on his history of psychosis that was documented in the MCR dated August 9, 2023, the appellant described himself as “antagonistic” and “argumentative” but not psychotic. The appellant again asserts that the symptoms were induced by alcohol and substance abuse, and they have not resurfaced since he has been sober.

24The appellant confirmed that he has been prescribed various medications for bipolar disorder including lithium, olanzapine, and valium. However, he stopped taking all medications because he suffered side effects such as fatigue, headaches, and worsening mood. He testified that discontinuing these medications was not done on the advice of his treating physician.

25After a careful consideration of all of the evidence available, we find that the medical evidence in the medical forms from two physicians and a psychologist all documenting the diagnosis of bipolar I disorder or its symptoms is compelling. On a balance of probabilities, we find that the appellant is a person living with a mental health condition.

Is the appellant’s medical condition likely to significantly interfere with his ability to safely drive a motor vehicle?

26We find that the Registrar has proven on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to safely drive a motor vehicle.

27As per its September 5, 2023, 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 that the mental health condition has been successfully treated or resolved;
• Confirmation of improvement in the mental health condition; and
• Confirmation of improvement in judgment.

28The respondent submits that the Registrar is primarily concerned with the appellant’s judgement because Dr. Knutt’s Mental Health Disorder form confirmed that the appellant has difficulty with judgement.

29The respondent directed us to Chapter 14.6.1 of the National Safety Code Standard 6: Determining Driver Fitness in Canada of the Canadian Council of Motor Transport Administrators (“CCMTA Standard”) in support of its submission that the appellant’s current mental health condition does not meet the test for reinstatement of his licence. This Chapter addresses the standard which must be met for drivers with psychiatric disorders. We 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 the 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.

30The appellant argues that the mental health condition does not impact his ability to drive safely.

31The appellant relies on a recent email between Dr. Knutt and the respondent’s representative in which the psychologist states that they believe that the appellant has the judgement to drive safely as long as he remains sober. Of significance, this email was served late on the respondent, and because it was in email format, the respondent was unable to verify its authenticity. The respondent indicated that they responded to this email requesting that the correspondence be submitted in a letter format and signed, but no response was received. We agree with the respondent’s concerns around authenticity of the email because of the lack of response to the request for the email to be forwarded in letter format, and because Dr. Knutt had previously submitted the Mental Health Disorder form which confirmed that the appellant suffered from difficulties with judgement. Additionally, we do not find this email supports the appellant’s position because he has not taken adequate steps to address his substance use disorder and support his sobriety. Despite using alcohol and drugs for a decade, he has not attended any rehabilitation programs to address his substance use. We find that should the appellant start abusing substances again, it would be an added risk which would interfere with his ability to drive safely.

32The appellant spoke to the fact that he is feeling well, is stable now that he has discontinued his use of alcohol and other substances and is under the care of a psychologist.

33Although we are 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 episode of impairment of functional ability due to a psychiatric disorder. It specifies, that for any driver insight, or self-awareness, is an important factor.

34As 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 judgement and willingness to comply with their treatment regime and any conditions of licensing.

35Based on the evidence before us, we find on a balance of probabilities that the appellant has reduced insight into his condition. While he has made many successful steps towards improving his mental health, we find that the appellant lacks insight into to his mental health condition because, despite being diagnosed with bipolar disorder by various health practitioners since 2015 and having multiple hospitalizations, he reports that he does not believe it is confirmed that he has this condition, nor does he agree that he has been psychotic. Furthermore, he is currently not taking any medication for this condition and has not demonstrated a willingness to comply with a prescribed treatment regime.

36Although we acknowledge that the appellant has put significant effort into improving his mental health, there is a history of recurrent incidents involving the police while driving a vehicle during an acute psychiatric event, which does not demonstrate insight. We are not convinced on a balance of probabilities that he will have the insight to stop driving if his condition becomes acute again given that he does not agree with the diagnosis of bipolar I disorder and has discontinued medications without physician supervision.

37The appellant testified that he asked Dr. Knutt to let him know if he starts acting strangely so he knows not to operate a vehicle. While this is one strategy that may be helpful, we do not find that this is enough of a safeguard to prevent the appellant from driving if there were a deterioration in his condition because he only sees Dr. Knutt twice a month. The panel finds there to be too much of a risk between these sessions due to the recurrent nature of the appellant’s psychiatric disorder.

38Additionally, as stated earlier, we are not bound by the CCMTA Guidelines; however, we do acknowledge that they require a treating physician to support a return to driving for individuals who have stopped driving due to a psychiatric disorder. Although the appellant is under the care of a mental health professional, we acknowledge that there is no letter of support from a physician on file, and that the appellant testified that he has not seen a physician for over a year. This information is concerning in light of the previous prescriptions for anti-psychotic and mood-stabilizing medications.

39Based on the totality of evidence before us and after careful consideration, we are satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to drive safely.

Conclusion

40We find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely a mental health condition, that is likely to significantly interfere with his ability to drive a motor vehicle safely.

ORDER

41For the reasons set out above, pursuant to subsection 50(2) of the Highway Traffic Act, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

Dr. Isla McPherson

Adjudicator

Rebecca Hines

Adjudicator