Licence Appeal Tribunal File Number: 14671/MED

In the matter of 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:

J. E.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Dr. Erica Weinberg, Member

APPEARANCES:

For the Appellant:

J. E., Self-represented

For the Respondent:

Ian Sookram, Representative

HEARD by Teleconference: April 12, 2023

OVERVIEW

1J. E. (the “appellant”) appeals the decision of the Registrar of Motor Vehicles (the “Registrar”) to suspend his Class G driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), effective November 18, 2022.

2Under the Act 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 Act and s. 14(1)(a) of O. Reg. 340/94 under the Act (the “Regulation”). Section 14(1)(a) of 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 his or her ability to drive a motor vehicle of the applicable class safely.

3Following the receipt of an unsolicited Medical Condition Report dated November 8, 2022, the Registrar suspended the appellant’s driver’s licence for the medical condition of seizure. The Medical Condition Report was sent to the Ministry of Transportation (the “Ministry”) as required under s. 203 of the Act.

4Under 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.

5Following the receipt and review of additional medical information, and effective February 21, 2023, the appellant’s driver’s licence remained suspended but now for the medical condition of mental health condition.

6The Registrar takes the position that the appellant is a person living with a medical condition, namely a mental health condition, that is likely to significantly interfere with his ability to drive safely.

7The appellant appeals the suspension under s. 50(1) of the Act. He denies that his mental health condition interferes with his ability to drive safely.

8Having considered all of the evidence, and for the reasons which follow, I find that the Registrar has not met the burden of establishing that the appellant’s medical condition is likely to significantly interfere with his ability to drive a vehicle safely. Therefore, I set aside the decision of the Registrar to suspend the appellant’s driver’s licence for medical reasons.

PRELIMINARY ISSUE

9Following the March 21, 2023 case conference, the appellant brought a motion requesting that the Tribunal privatize his name due to his profession.

10A Motion Decision and Order was issued on March 28, 2023, stating that the Tribunal grants an order that:

i. Tribunal decisions or orders released to the public domain shall reduce the appellant’s name to initials only.

ii. Prior to third party record request being disclosed, the appellant’s name shall be redacted.

ISSUES

11The issue in dispute is whether the appellant is a person living with a medical condition, namely a mental health condition, that is likely to significantly interfere with his ability to drive a motor vehicle safely.

12To resolve that issue, I will address the following questions:

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

ii. If the appellant is a person living with a mental health condition, is it likely to significantly interfere with his ability to drive a motor vehicle safely?

ANALYSIS

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

13I find that the evidence presented at the hearing supports that the appellant is a person living with a mental health condition.

14The Registrar’s position that the appellant is a person living with a mental health condition is supported by the reports of the appellant’s neurologist, psychiatrist and primary care physician.

15The appellant does not deny he is living with a mental health condition, specifically anxiety related to the situation or events regarding his seizure in October 2022.

16I find that the Registrar has established on a balance of probabilities that the appellant is a person living with a medical condition, namely a mental health condition.

If the appellant is a person living with a mental health condition, is it likely to significantly interfere with his ability to drive a motor vehicle safely?

17On appeal, the Registrar has the burden of establishing, on a balance of probabilities, that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Registrar has not met that burden.

18On February 24, 2023, the appellant’s psychiatrist indicated in a submitted Ministry form that the appellant has no difficulties in cognition, attention, memory or judgement, is adherent to the recommended treatment regimen and has been hospitalized twice in the past 12 months for a psychiatric illness, including the current voluntary elective mental health in-patient program (January 25 – March 31, 2023).

19According to the Registrar’s March 27, 2023 letter to the appellant, the Ministry requires confirmation of a 6-month period of mental and emotional stability from the last reported hospital visit reported on January 25, 2023.

20The Registrar relies on the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”) plus internal policies used by the Ministry’s Driver Medical Review team and argues that the licence suspension should be confirmed by the Tribunal. Section 14(2)(a) of the Regulation allows the Registrar to consider the CCMTA Standards when determining whether the requirements of s. 14(1) are met. The Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

21The respondent’s representative referred to Chapter 14.6.1 of the CCMTA Standards and the Ministry’s internal policy regarding drivers who have had two or more hospital admissions in the last 12 months due to their mental health illness requiring a 6-month period of mental and emotional stability.

22Chapter 14.6.1 of the CCMTA Standards (Guidelines for assessment; Psychiatric disorder – all drivers) recommends that a driver who has been diagnosed with a mental health condition is eligible for a licence if:

i. the condition is stable;

ii. the driver has sufficient insight to stop driving if condition becomes acute;

iii. the functional abilities necessary for driving are not impaired;

iv. a treating physician supports a return to driving, for drivers who have stopped driving due to a psychiatric disorder; and

v. the conditions for maintaining a licence are met.

23The appellant argues that his driver’s licence should be reinstated. He relies on the facts that:

i. according to a recent narrative letter, his primary care physician has been following the appellant for situational anxiety since November 2022 and at no time considered reporting the appellant to the Ministry for unsafe driving due to his mental health condition;

ii. according to a completed Ministry form and narrative letters, his treating psychiatrist is of the opinion that the appellant’s mental health condition has been stable for safely operating a motor vehicle and his psychiatrist would not have ever deemed the appellant unfit to operate a vehicle for mental health reasons nor reported him to the Ministry for medical review during this time period;

iii. according to a completed Ministry form, his treating neurologist indicates that the appellant has no predisposition to increased seizures and recommended that the appellant voluntarily complete the mental health in-patient program;

iv. his mental health condition is stable, he has been compliant with all the recommendations from his treating healthcare providers, he has no judgment issues, his current prescribed mental health medication does not cause any side effects and there is no evidence that his mental health impairs his ability to drive safely; and

v. he fulfills the requirements for eligibility for a driver’s licence according to Chapter 14.6.1 of the CCMTA Standards.

24I prefer the opinions of the appellant and his treating health care providers over that of the respondent, and find that the appellant’s mental health condition does not significantly interfere with his ability to drive a vehicle safely. The evidence indicates that the appellant’s mental health condition is stable and he has no difficulties with cognition, attention, memory or judgment. In addition, based on the appellant’s oral evidence, I am of the opinion that the appellant has good insight, or self-awareness, into his medical condition. A driver’s level of insight is a critical consideration when assessing the risk of an episodic impairment of functional ability due to a mental health condition. The appellant is now back at work, currently performing administrative duties, and has the availability of a gradual return to his regular role at work when his driver’s licence is reinstated. Furthermore, the appellant has concrete plans going forward to continue with mental health supports, including monthly meetings with his primary care provider, individual psychotherapy appointments every 1-2 weeks and weekly group therapy sessions. Moreover, the appellant’s treating health care providers support the appellant’s return to driving. I agree with the appellant that he fulfills the criteria in Chapter 14.6.1 of the CCMTA Standards for eligibility for a driver’s licence and note that the rationale stated for this CCMTA Standard is “given the nature of psychiatric disorders, assessment must rely primarily on the clinical judgment of health care professionals involved in the treatment”. Although I accept that the Ministry has internal policies with respect to safety to drive and the number of hospitalizations within a 12-month period when considering return to driving for persons living with mental health conditions, I am of the opinion that every case should be considered on its own merits. I am satisfied I have done so in this case.

25I find, on a balance of probabilities, that the appellant’s medical condition is not likely to significantly interfere with his ability to drive safely.

Conclusion

26After a careful consideration of the totality of the evidence before me, and based on the above, I find that the Registrar has not discharged the onus of establishing on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to drive a vehicle safely.

ORDER

27For the reasons set out above, pursuant to subsection 50(2) of the Act, I set aside the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.