Licence Appeal Tribunal File Number: 15156/MED
In the matter of an appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the ‘Act’), from a decision of the Registrar of Motor Vehicles to suspend a licence pursuant to Section 47(1) of the Act
Between:
Marjory Brown
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR:
Dr. Peter Savage, Adjudicator Kevin Lundy, Adjudicator
APPEARANCES:
For the Appellant:
Marjory Brown, Appellant Ryan Petrovski, Counsel
For the Respondent:
Stephen Grootenboer, Representative
Heard by Teleconference: By teleconference September 19, 2023
OVERVIEW
1Marjorie Brown (the ‘appellant’) appeals from the decision of the Registrar of Motor Vehicles (the ‘registrar’ or ‘respondent’) to suspend her Class G driver’s licence under subsection 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the ‘Act’) after the registrar received a report from a health care provider that the appellant suffers from a medical condition that may affect her ability to drive safely.
2The registrar has the authority under subsection 47(1)(g) of the Act to suspend or cancel a driver’s licence for any sufficient reason. Subsection 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 his or her ability to drive a motor vehicle of the applicable class safely. Pursuant to subsection 14(2)(b) of the Regulation, the Minister of Transportation may require a driver to provide satisfactory evidence that he or she is able to drive safely.
3The registrar takes the position that the appellant suffers from a medical condition, specifically substance use disorder, that is likely to significantly interfere with her ability to drive safely and that this provides sufficient reason to suspend her licence pursuant to subsection 47(1)(g) of the Act.
4The appellant appeals the suspension to the Licence Appeal Tribunal (the ‘Tribunal’) pursuant to subsection 50(1) of the Act. The appellant denies that she suffers from substance use disorder or that she suffers from a medical condition which interferes with her ability to drive safely.
5Pursuant to subsection 50(2) of the Act, after a hearing the Tribunal may confirm, modify, or set aside the decision or order of the registrar.
PRELIMINARY ISSUES
6Dr. Savage disclosed to the parties that he had referred patients in his practice to the appellant’s psychotherapist, Dr. Mary Vachon, RN, RP, PhD, in the past. The parties acknowledged this disclosure and agreed to proceed.
7The registrar served the appellant with a letter dated June 23, 2023 informing her that it had suspended her driver’s licence on the basis that she suffers from a substance use disorder. On August 30, 2023, the respondent sent a subsequent letter that indicated that her driver’s licence was suspended on the basis of a substance use disorder and a mental health condition.
8However, in a subsequent letter dated September 5, 2023, the respondent again amended the grounds for suspension to only a substance use disorder. The representative for the respondent confirmed that this is the sole ground for the suspension upon which the registrar relied at the hearing.
ISSUES
9The issue in this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with her ability to drive a motor vehicle safely.
10To resolve that issue, we will address the following questions:
i. Does the appellant suffer from a substance use disorder?
ii. If so, is this likely to significantly interfere with her ability to drive a motor vehicle safely?
11The respondent bears the burden of proving both of the above issues on a balance of probabilities.
RESULT
12Having considered all the evidence and submissions and for the reasons that follow, we find that the registrar has not satisfied its burden to establish that the appellant suffers from a medical condition that is likely to significantly interfere with her ability to drive a motor vehicle safely and we therefore set aside the registrar’s decision to suspend the appellant’s driver’s licence.
ANALYSIS
Does the appellant suffer from a substance use disorder?
13The evidence presented at the hearing does not establish that the appellant suffers from a medical condition, specifically a substance use disorder.
14On June 20, 2023, the respondent received an unsolicited medical report from Dr. Joshua Dias, a psychiatrist at the Humber River Hospital, pursuant to subsection 203(1) of the Act. In that report, Dr. Dias checked a box to indicate that he is the appellant’s psychiatrist and stated that she has a substance use disorder related to alcohol, opioids and cannabis.
15The appellant testified that her former family physician referred her to Humber River Hospital as the appellant had some concerns about her medications for anxiety and depression and did not have a psychiatrist to manage those medications.
16The appellant received a telephone call from a social worker, Karen Rousseau (‘K.R.’), and they discussed a voluntary cognitive behaviour therapy program offered by the hospital. As the appellant expressed interest in attending this program, K.R. telephoned her on April 25, 2023 and conducted a brief intake interview. K.R. advised the appellant that she would have an appointment with Dr. Dias on May 3, 2023. It was the appellant’s understanding that she would attend this voluntary therapy program twice weekly at the hospital and believed that it would be helpful for her mental health. She was never referred directly to this program or otherwise required to participate.
17On May 3, 2023, the appellant called Dr. Dias’ office and advised that she was not feeling well and could not attend her appointment that day. Dr. Dias called her back and asked if it was possible to conduct their appointment over the telephone but the appellant reiterated that she was not feeling well and asked to reschedule. Dr. Dias’s office rescheduled the appointment to June 19, 2023. However, on June 19, 2023, the appellant was in the process of moving and inadvertently forgot about the appointment. She received no further contact from Dr. Dias. At the end of June 2023, she received the letter dated June 23, 2023 from the respondent suspending her driver’s licence. She never received an examination from Dr. Dias or even met him. Her only interaction was the brief telephone conversation on May 3, 2023 with respect to scheduling the initial appointment.
18When the appellant followed up with the social worker to obtain some explanation for the suspension, K.R. advised that Dr. Dias had stated that because she had missed two appointments, she should follow up with her family doctor. Although Dr. Dias had indicated that he was her psychiatrist, she was never assessed by him and never advised him that she has a substance use disorder, let alone that she has an issue that would affect her ability to drive safely. In the course of her brief intake interview with K.R., the appellant mentioned that she had taken a single Percocet tablet on a single occasion to address kidney stone pain and that she has used cannabis recreationally.
19At the hearing, she estimated that she consumes at most one or two drinks at a time, no more than every one to two weeks. She added that she does not like to drink and generally does not consume alcohol out of concern that it may adversely interact with her ADHD medication. She did not recall discussing her alcohol consumption with K.R. at all.
20In the letter dated June 23, 2023, the registrar requested that the appellant’s treating physician, specialist or nurse practitioner complete a substance use assessment form. The letter stated that if her healthcare provider confirms the diagnosis of severe substance use disorder, the ministry will require confirmation that she remain abstinent from drugs for a period of one year. This period may be reduced to six months if the appellant’s healthcare practitioner confirms that she has successfully completed a drug treatment program and is supportive of her driving privilege. When the appellant asked her former physician to complete this form, the physician refused on the grounds that the appellant’s file had been transferred and she was no longer the appellant’s treating healthcare provider. The appellant’s nurse practitioner also refused to complete the form as she had only recently begun treating the appellant and therefore did not have sufficient history with her to comment on her past substance history or lack thereof. As a result, we find that the appellant made reasonable efforts to complete the substance use assessment form.
21As an alternative, the appellant voluntarily submitted to testing and presented two toxicology reports dated July 6 and September 11, 2023. Both reports state a negative result for the substances cited by Dr. Dias as the basis for his concerns. The first report includes a positive result for amphetamines and negative results for all other substances tested that day. The appellant explained that this result likely relates to her ADHD medication. She has since stopped taking this medication as a result of the report from Dr. Dias and her nurse practitioner’s concerns over that report. The second report lists negative results for all substances including amphetamines. Although she provided the samples for both tests on the premises of the testing facility, she was unsupervised during this process. As a result, these results should be accorded lesser evidentiary weight.
22The registrar relies entirely on the medical report from Dr. Dias dated June 19, 2023 for its position that the appellant suffers from a medical condition, specifically a substance use disorder that is likely to significantly interfere with her ability to drive a motor vehicle safely. However, there are several problems with the use of this document as evidence.
23The respondent relies upon subsection 203(1) of the Act as the basis for Dr. Dias’ authority to issue his report with respect to the appellant. However, subsection 203(4) of the Act limits this authority to a prescribed person who “actually met the reported person for an examination or for the provision of medical or other services, or in the circumstances prescribed by regulation.” Dr. Dias never met the appellant for an examination or for the provision of medical services or for any other reason other than a brief conversation with respect to scheduling a prospective appointment. A plain reading of subsection 203(4) would suggest that this exchange does not fall under the “other services” listed in the section since this purely administrative function may be carried out by someone other than the prescribed person specified by subsection 203(1). Similarly, none of the circumstances listed in Reg. 340/94 would authorize the issuance of the report on the basis of their brief conversation. As Dr. Dias was never the appellant’s psychiatrist, he lacked the authority to issue the report dated June 19, 2023.
24In addition, the appellant submitted a letter of support dated July 18, 2023 from her psychotherapist, Dr. Vachon, who has treated her regularly since February 2016. In her letter, Dr. Vachon stated that she has never observed any evidence of the appellant driving while impaired in any way. However, as Dr. Vachon is neither a physician nor a nurse practitioner as required by section 14(2)(b) of the Regulation, her letter must be accorded lesser evidentiary weight. Nonetheless, between Dr. Dias, who never treated, assessed or even met the appellant and Dr. Vachon, who has treated her on a regular basis for the past seven and a half years, we prefer the latter as the better authority on whether the appellant suffers from a substance abuse disorder. Lastly, the appellant has no record of impaired driving and has submitted two toxicology reports that support her testimony that she does not abuse the substances cited in Dr. Dias’ report.
25In consideration of all of the circumstances, we find that the registrar has not established on a balance of probabilities that the appellant suffers from a substance abuse disorder. As a result, it is not necessary to consider whether the alleged medical condition is likely to significantly interfere with the appellant’s ability to drive a motor vehicle safely.
Conclusion
26We find that the registrar has not discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, specifically a substance use disorder, that is likely to significantly interfere with her ability to drive a motor vehicle safely.
ORDER
27For the reasons set out above, pursuant to subsection 50(2) of the Act, we set aside the registrar’s decision to suspend the appellant’s driver’s licence.
LICENCE APPEAL TRIBUNAL
__________________________
Dr. Peter Savage Adjudicator
__________________________
Kevin Lundy Adjudicator
Released: September 22, 2023