Licence Appeal Tribunal File Number: 16210/MED

In a 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:

Dayna Hooper

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION & ORDER

ADJUDICATORS: Dr. Kailey Minnings, Member Raymond C. Ramdayal, Member

APPEARANCES:

For the Appellant: Dayna Hooper Shan Choudhry, witness

For the Respondent: Ian Sookram, Representative

Heard: September 24, 2024

PRELIMINARY ISSUE

Confidentiality Order

1The appellant raised a preliminary matter at the hearing which involves the Licence Appeal Tribunal (the “Tribunal”) anonymizing the decision to protect the identity of the appellant.

2The Tribunals are generally open to the public, in accordance with the open court principle: see Toronto Star v. AG Ontario, 2018 ONSC 2586. Tribunals may make exceptions to the openness of hearings for privacy interests.

3The Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25 (“Sherman Estate”) outlines a three-part test. All three prerequisites must be met in order to properly impose a discretionary limit on openness:

1. court openness poses a serious risk to an important public interest;
2. the order sought is necessary to prevent this serious risk to the identified interest because reasonably alternative measures will not prevent this risk; and,
3. as a matter of proportionality, the benefits of the order outweigh its negative effects.

4The person seeking a confidentiality order of any type has the onus of displacing the general rule of openness. Upholding the presumption of openness generally involves a recognition that neither individual sensibilities nor mere personal discomfort associated with participating in judicial or quasi-judicial proceedings are likely to justify a restriction on the open court principle.

5The appellant states that she is concerned that the disclosure of her medical condition may negatively impact her reputation at work and her ability to remain employable. She is currently in a position of trust and has been able to maintain her employment despite the circumstances which bring her before the Tribunal. The appellant is requesting the anonymization of the decision.

6The respondent had no objection to this request. We note that the respondent’s non-opposition does not mean the appellant’s motion must be granted; her motion must still be assessed on its merit.

7For the reasons that follow, we find that the appellant has not established a basis for making a confidentiality order. To address the first prong, while privacy can constitute an important public interest within the meaning of Sherman Estate, we are not satisfied that the appellant has established that the appellant’s dignity is at risk and would rise to the level of an important public interest. Dignity may be undermined where the information reveals something sensitive about the person as an individual, and information sought to be protected must be sufficiently sensitive that it strikes at one’s “biographical core” (see Sherman Estate at para. 75).

8Sherman Estate clarified at paragraph 62 that it will never be sufficient to raise a recognized interest on its own. The person seeking to limit the open court principle must also demonstrate a serious risk to that interest beyond disadvantage, embarrassment, or distress and that it will suffer irreversible harm. We accept that the appellant may suffer some harm if the decision is published without a confidentiality order in place. However, the appellant did not provide persuasive submissions about how her medical conditions may negatively impact her or assert any specifics of the disclosure that are of concern, nor did the appellant provide arguments as to any irreversible harm by the publication of her name.

9Having concluded that the appellant has not satisfied the first branch of the Sherman Estate test, the motion must fail, and we need not consider the other branches.

10For the reasons set out above, the Tribunal orders that the motion is denied. The appellant’s motion is dismissed.

OVERVIEW

11Dayna Hooper (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (the “Registrar” or “respondent”) to suspend her 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 health care provider that the appellant suffers from a medical condition that may affect her ability to drive safely.

12The 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 safely. 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.

13The Registrar takes the position that the appellant suffers from a medical condition, namely 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.

14The appellant appeals the suspension under s. 50(1) of the Act. They deny that they suffer from the medical condition alleged and deny that they suffer from a medical condition which interferes with their ability to drive safely.

15Pursuant 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.

ISSUE

16The issue in this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive a motor vehicle safely.

17To resolve that issue, we will address the following questions:

i. Does the appellant suffer from the medical condition alleged?

ii. If so, is this likely to significantly interfere with their ability to drive a motor vehicle safely?

The Registrar bears the burden of proving on a balance of probabilities that the answer to each of these questions is ‘yes.’

RESULT

18Having 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 that is likely to significantly interfere with her ability to drive a motor vehicle safely and we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from the medical condition alleged?

19We find that the appellant does suffer from the medical condition alleged. Along with her own acknowledgement of her medical condition at the hearing, the Tribunal also received evidence comprising of the unsolicited medical report from the ER doctor, Mental Health Disorder form, and submissions from the appellant’s witness and the respondent.

20The fact of whether the appellant has a mental health disorder does not appear to be in dispute in this matter.

21By letter dated February 8, 2024, the Registrar advised the appellant that her driver’s licence was being suspended, effective February 18, 2024, for having a mental health condition. The Registrar suspended her licence after receiving an unsolicited medical condition report from a physician dated February 4, 2024, indicating the appellant has a mental health condition. On that day, the appellant was found in her car, in a parking lot, in a psychotic state. At the hearing, she explained that she was in crisis and needed support. She also stated that she was admitted to hospital from July 12-22, 2024, for similar reasons.

22The appellant explained that she has had to endure a difficult period with the loss of her father due to cancer. This was corroborated by her witness and partner, Shan Choudhry. Mr. Choudhry presented as a reliable witness and spoke about the appellant’s challenges in navigating the healthcare system to get the help she needs.

23The appellant provided details about her stay while in hospital, as well as being prescribed aripiprazole in the past. As a physician duly licenced to practice medicine in Ontario, Dr. Minnings is aware that aripiprazole is an antipsychotic medication that is used to treat various mental health conditions. She takes note of this pursuant to s. 16(b) of the Statutory Powers Procedure Act. The appellant states that she stopped taking this medication due to side effects she would experience.

24While at the hospital in February 2024, the appellant was assessed by Dr. E. Miula, an emergency room psychiatrist with Trillium Health Partners. At that time, she was diagnosed with a psychiatric illness that includes acute psychosis and severe abnormalities of perception. The appellant states that when she was discharged after her hospital stay in July 2024, she did not have a follow-up plan or receive information on next steps.

25As a result of this assessment by Dr. Miula, the Registrar advised the appellant that once her condition improves, she may seek reinstatement of her driver’s licence by having her treating physician, specialist or nurse practitioner complete a Mental Health Disorder form. The Registrar would then review the information against the national medical standards.

26The above form was completed by Dr. Y. Papadopoulos, a psychiatrist with Humber River Hospital, Mental Health and Addictions, on May 21, 2024. The report further confirms the appellant’s health condition and indicates that she has bipolar disorder. The appellant’s condition was described as being stable with ongoing mild symptoms. It has remained this way for less than 3 months according to Dr. Papadopoulos.

27Upon reviewing this information and considering the form in its totality, the Medical Review Team from the Registrar’s office sent another letter to the appellant on June 4, 2024, indicating her conditions as “mental health condition” and “medication side effects (sedation & psycho-motor slowing).” In order to have her driver’s licence reinstated, the appellant must now confirm a three-month period of mental and emotional stability and confirmation there are no adverse side effects from the medication she is taking that would impact her ability to safely operate a motor vehicle.

28To date, the appellant has not been able to provide confirmation of this information through her healthcare practitioner. She states that she has a family doctor who she sees annually but does not have a psychiatrist at this time.

29We did not receive any information which would dispute the diagnosis reached by the medical practitioners. Indeed, the appellant concedes she has the medical condition. As a result, on a balance of probabilities, we find that the Registrar has established that the appellant suffers from the medical condition alleged.

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

30We find that the appellant’s medical condition is likely to significantly interfere with her ability to drive a motor vehicle safely.

31The evidence in front of the Tribunal indicates that the appellant has a medical condition which she acknowledges. However, she does not feel it interferes with her ability to drive a motor vehicle safely. The respondent is intent on receiving an updated medical report confirming that the appellant has had a three-month period of mental and emotional stability, as well as confirmation that there are no adverse side effects from medication that would impact her ability to safely operate a motor vehicle.

32The respondent is relying on the Canadian Council of Motor Transport Administrators (“CCMTA”) National Safety Code Standard 6: Determining Driver Fitness in Canada standard 14.6.1 which deals with Psychiatric disorder – All drivers. Specifically, s. 14.6.1 states under “Standard” that 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
• the conditions for maintaining a licence are met.

33Section 14(2)(a) of the Regulation allows the Registrar to consider the CCMTA Standards when determining whether the requirements of s. 14(1)(a) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

34We received evidence confirming that the appellant was hospitalized on more than one occasion in 2024. She has a history of mental health disorder and demonstrated limited insight into her condition. At the hearing, she stated on multiple occasions that she was able to drive safely and that her medical condition would not impact her ability to do so. However, her reasons were not compelling and did not satisfy the Tribunal’s mandate of ensuring public safety for all road users. We took into consideration testimony from her witness stating that he felt comfortable being driven by her and that her mood is negatively affected by her not being allowed to drive. However, the Tribunal requires greater assurance from her medical providers to confirm her medical stability and readiness to drive.

35The appellant’s plan is to simply follow up with her family doctor as a result of this medical episode. However, she testified that she sees her family doctor infrequently and does not have an upcoming appointment. She testified that she is currently not taking any medication. The Tribunal finds that more focussed and intensive medical intervention is necessary to address her current medical condition. As such, her mental health condition remains unresolved and untreated. This places the public at undue risk should she be allowed to operate a motor vehicle. There is also no evidence from any health care provider supporting her ability to drive safely at this time.

36While we are not bound to do so, we are persuaded to apply the CCMTA Standards to this case. Based on the evidence before us, there is no medical information to confirm that the appellant has satisfied any of the criteria of the CCMTA standard with respect to licence reinstatement.

37For these reasons, we agree with the respondent’s position that the appellant’s condition is likely to interfere with her ability to drive a motor vehicle safely.

Conclusion

38We find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition and that it is likely to significantly interfere with her ability to drive a motor vehicle safely.

ORDER

39For the reasons set out above, pursuant to subsection 50(2) of the Act, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

LICENCE APPEAL TRIBUNAL

__________________________________

Dr. Kailey Minnings, M.D., Adjudicator

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Raymond C. Ramdayal, Adjudicator