Tribunals Ontario / Tribunaux décisionnels Ontario

Licence Appeal Tribunal / Tribunal d'appel en matière de permis

Licence Appeal Tribunal File Number: 14397 MED Date: 01/26/2023

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:

Gale Genno Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Peter Savage, M.D., Member Avril A. Farlam, Vice-Chair

Appearances: For the Appellant: Gale Genno, Self-represented For the Respondent: Steve Grootenboer, Agent

Heard by teleconference: January 13, 2023

DECISION AND ORDER

BACKGROUND

1Gale Genno (the “appellant”) appeals the suspension of her driver’s licence by the Registrar of Motor Vehicles (the “Registrar”) effective October 24, 2021.

2A physician at a hospital reported to the Registrar of Motor Vehicles (the “Registrar”) on October 8, 2021, that the appellant has been diagnosed with an uncontrolled substance use disorder, specifically alcohol and cannabis. Pursuant to s. 203(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), physicians are required to report to the Registrar any person 16 years of age or older who has or appears to have a prescribed medical condition, functional impairment or visual impairment that may make it dangerous for the person to drive.

3The Registrar suspended the appellant’s driver’s licence under s. 47(1) of the HTA due to the appellant’s psychiatric condition.

PRELIMINARY ISSUE – NO WRITTEN INFORMATION FILED BY THE APPELLANT

4Although the Tribunal’s case conference report and order dated November 21, 2022, indicated that the appellant would make best efforts to have a substance use assessment form completed by her physician, the appellant confirmed that she has been unable to do so. The appellant confirmed that she wished to go ahead with the hearing without having submitted any medical or other written information in support of her appeal other than her Notice of Appeal and without being given further opportunity to do so.

5As a result, the panel proceeded with the hearing.

ISSUE

6The issue in this appeal is whether the appellant has a medical condition, that is, substance use disorder, specifically alcohol and cannabis, likely to significantly interfere with her ability to drive a motor vehicle safely. In order to answer that question, we will address the following issues:

(a) Does the appellant have a medical condition, specifically substance use disorder, specifically alcohol and cannabis?

(b) Is the appellant’s medical condition, substance use disorder, specifically alcohol and cannabis, if any, likely to significantly interfere with her ability to drive safely?

RESULT

7For the reasons that follow, we find that the appellant has a medical condition, substance use disorder, specifically alcohol and cannabis, that is likely to interfere with her ability to drive safely. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

LAW

8The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

9One 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 or addiction 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:

(1) 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;

10Section 14(2)(a) of the Regulation allows the Minister of Transportation 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.

11Under 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.

12The Registrar 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 Registrar.

EVIDENCE AND ANALYSIS

(a) Does the appellant have a substance use disorder, specifically alcohol and cannabis?

13As set out below, we find that the appellant has substance use disorder, specifically alcohol and cannabis based on the evidence before us.

14The Registrar filed a medical condition report dated October 8, 2021, completed by Dr. Smalley, a psychiatrist and emergency room physician at a hospital, in which he diagnosed the appellant with an uncontrolled substance use disorder, specifically alcohol and cannabis. This medical report is the only medical evidence before us.

15In her testimony the appellant stated that she was admitted to the hospital and treated for two weeks following an episode during which she said she had over-used alcohol. However, the appellant denies that she has substance use disorder, specifically alcohol and cannabis at the time the diagnosis was made or now and stated that she was not diagnosed fairly.

16We find, based on the medical report filed by the respondent from the psychiatrist at the hospital, that the appellant has a substance use disorder, specifically alcohol and cannabis. Although the appellant denies she has a substance use disorder there is no medical evidence to the contrary.

(b) Is the appellant’s substance use disorder, specifically alcohol and cannabis likely to significantly interfere with her ability to drive safely?

17The appellant testified that she did not drive to the hospital at the time of her diagnosis and does not use substances and drive. The appellant testified that although she smokes cannabis daily and drinks alcohol occasionally, she does not use substances before or during driving. The appellant also said that the loss of her licence is a hardship because she needs to drive to care for an elderly family member.

18The appellant said that her hospitalization in 2021 was as a result of being “run ragged” by her home life because she was living with and caring for an elderly family member and also living with her son and his partner. The appellant confirmed that she lives with her elderly relative now and indicated that the family situation that contributed to her hospitalization is now resolved.

19The appellant testified that she has taken steps to control her use of alcohol and cannabis including “harm reduction drinking” which limits her use of alcohol to occasional use when she is happy, during special occasions, and weekends. The appellant stated that she has registered for a local program which will start later in January 2023, has access to a social worker, takes an art program when her elderly relative is cared for by his personal service worker, has access to a counsellor that she can talk to and now walks for exercise, all of which have resulted in reduction in her use of alcohol and cannabis. While the appellant is to be commended for taking these steps, we were given no evidence, written or oral, corroborating the appellant’s testimony and are unable to rely on the appellant’s testimony without corroboration given the medical evidence filed by the respondent.

20The appellant did not bring any other witnesses to the hearing to testify. She testified that she has been unable to get the medical forms filled out because she cannot access a family physician who will help her with the forms.

21The appellant’s submissions that her driving licence should be returned to her because it is not illegal to drink alcohol or smoke cannabis, she never drinks, smokes and drives, and it is unconstitutional to take away her licence are unpersuasive.

22The legality of her use of alcohol and cannabis is not at issue here, nor is whether the appellant drinks, smokes and drives. The appellant’s licence was suspended because of her diagnosis of substance use disorder, specifically alcohol and cannabis which we have accepted for the reasons stated above. The appellant has brought forward no medical evidence or other persuasive evidence to the contrary, despite the request from the respondent to do so and despite being offered a further opportunity to do so at the start of the hearing and choosing to proceed without it.

23The appellant contends that the law under which her licence was suspended is constitutional. This argument was not raised in the appellant’s Notice of Appeal and there has been no Notice of Constitutional Question served on the Attorney General of Canada, the Attorney General of Ontario, other parties and the Tribunal as required by Rule 11 of Common Rules of Practice & Procedure, Licence Appeal Tribunal, Animal Care Review Board, and Fire Safety Commission, Version I (October 2, 2017)(the “Rules”), or s. 109 of the Courts of Justice Act. Since the appellant did not comply with these mandatory notice provisions, the Tribunal is explicitly prohibited from considering or rendering a decision regarding this argument.

24The Registrar submits that the appellant’s medical condition would impair her judgment and skills in driving and make unsafe her operation of a motor vehicle and for these reasons her licence should not be restored at this time. The Registrar relies on the guidelines contained in the CCMTA Standards with respect to the danger of substance use disorder (chapter 15) and particularly Chapter 15.6.3, and we exercise our discretion to take the CCTMA Standards into consideration.

25Although the CCMTA Standards are not binding on the Tribunal, we are persuaded in this case to apply them because the considerations set out in Chapter 15.6.3 are important to ensure that drivers do not present a safety risk to themselves or others while driving.

26In our view, re-licencing at this time is not appropriate because the appellant presents a safety risk to herself or others while driving.

27We find based on the totality of the evidence before us that the appellant’s substance use disorder, specifically alcohol and cannabis, is likely to significantly interfere with her ability to drive safely at this time because her current diagnosed condition prevents her from being completely in control of her actions, a necessary skill for driving. We accept the respondent’s submission that further medical information should be submitted is reasonable keeping in mind public road safety.

ORDER:

28For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the appellant’s driver’s licence is confirmed.

Peter Savage, M.D., Member

Avril A. Farlam, Vice-Chair