Licence Appeal Tribunal File Number: 16385/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:

Ernest Houle

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Dr. Isla McPherson, Member

APPEARANCES:

For the Appellant: Paige Keen, Appellant’s Representative

For the Respondent: Ian Sookram, Agent

Held by teleconference: December 9, 2024

OVERVIEW

1Ernest Houle (the “appellant”) appeals 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 an unsolicited Medical Condition Report stating that the appellant suffers from a medical condition that may affect his ability to drive a motor vehicle of the applicable class 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 safely. Under s. 14(2)(b) of the Regulation, the Registrar may require a driver to provide satisfactory evidence that they are able to drive a vehicle of the applicable class safely.

3The Registrar takes the position 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 vehicle of the applicable class safely and that this provides sufficient reason to suspend his licence under s. 47(1)(g) of the Act.

4The appellant appeals the suspension under s. 50(1) of the Act. While he agrees he has had episodes where he is unwell, he disagrees that he suffers from a mental health condition and denies that this condition interferes with his ability to drive a vehicle of the applicable class 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 medical condition that is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.

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

i. Does the appellant suffer from a mental health condition?

ii. If so, is this likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely?

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

PRELIMINARY ISSUES

9At the onset of the hearing, the appellant’s representative indicated the appellant would not attend the hearing. After a description of the hearing process, a recess was taken where the appellant’s representative reached out to the appellant to review his decision to not attend the hearing. Following a short recess, it was confirmed that the appellant would not attend the hearing.

RESULT

10Having considered all the evidence and submissions and for the reasons that follow, I 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 his ability to drive a motor vehicle of the applicable class safely and I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from a mental health condition?

11The evidence presented at the hearing establishes that the appellant suffers from a medical condition, namely a mental health condition.

12The Registrar’s position is supported by:

i. a Medical Condition Report (MCR) dated, July 4, 2024, from Dr. G;

ii. a letter from nurse MK dated, dated July 15, 2024;

iii. a MCR dated, July 16, 2024, from Dr. G;

iv. Medical records from the appellant’s admission to hospital in July 2024;

v. a Mental Health Disorder Form dated November 17, 2024, from Dr. G.

13On July 4, 2024, Dr. G completed a MCR indicating the appellant suffered from the medical condition of Dementia or Alzheimer’s and added a narrative statement that she had received a call from registered nurse L who works with the police crisis intervention team, and the registered nurse recommended the appellant, “stop driving due to dementia symptoms and seeing things that are not there”.

14Following this MCR the Registrar suspended the appellant’s driver’s licence due to cognitive impairment and requested further medical information. Dr. G completed a requested Cognitive Disorder Form on July 16, 2024, checking the box that the appellant had no cognitive impairment and triggering the reinstatement of the appellant’s driver’s licence. On the same day, July 16, 2024, Dr. G completed a second MCR reporting this time that the appellant had a diagnosis of an Unstable Mental or Emotional Illness and added a narrative comment that the appellant was “non compliant”. The receipt of this MCR triggered a second medical suspension due to a mental health condition.

15On July 15, 2024, nurse MK with the Regional Outreach Behavioural Support Team sent a letter to Dr. G outlining concerns that the appellant was refusing the scheduled assessment by a geriatric psychiatrist. Nurse MK advised Dr. G that if she felt the appellant met the appropriate criteria, he could be admitted involuntarily to hospital for a psychiatric evaluation.

16Medical records shared during the hearing by the appellant’s representative document that the appellant had a hospitalization at the end of July 2024 during which he was admitted with a diagnosis of major neurocognitive disorder with psychosis.

17On November 17, 2024, Dr. G completed a requested Mental Health Disorder Form and checked the box answering affirmatively that the appellant suffered form Mild Cognitive Impairment or Mild Dementia.

18The appellant’s representative argued that the Mental Health Disorder Form dated November 17, 2024, did not check a box indicating the appellant had a primary mental illness, only the presence of cognitive impairment, and that the appellant argues he does not have a mental health condition or cognitive impairment. However, as per his representative, the appellant does not deny that he has had several episodes where he has experienced visual hallucinations or sees things that are not there. One episode described was when he had driven to the police station for assistance because he had thought people would not get out of the back of his vehicle when no one was there.

19The medical evidence before the Tribunal comprises multiple medical forms from multiple healthcare providers, including two nurses, the appellant’s family physician and the admitting physician during a hospitalization that all document concerns with mental health. From the testimony of the appellant’s representative, the appellant does not disagree that he suffers from “episodes” where he experiences visual hallucinations.

20The medical evidence in this case is compelling and the appellant does not dispute the presence of mental health symptoms. Based on the information available, I find that the Registrar has established on a balance of probabilities that the appellant suffers from a mental health condition.

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

21I 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 drive a motor vehicle safely.

22The Registrar’s position is supported by:

i. a letter from nurse MK dated July 15, 2024;

ii. a MCR dated, July 16, 2024, from Dr. G;

iii. a Mental Health Disorder Form dated November 17, 2024, from Dr. G;

iv. The Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”).

23The Registrar relies on the CCMTA Standards Chapter 14 along with internal policies at the Registrar of Motor Vehicles. Chapter 14 of the Standards documents that psychiatric disorders can result in either a persistent or episodic impairment of the functions necessary for driving and highlights that a driver’s level of insight is a critical consideration when assessing the risk of an episodic impairment of functional ability due to a psychiatric disorder.

24The Registrar relies on Standard 14.6.1. This Standard indicates a driver is 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, and a treating physician supports a return to driving. In addition to this Standard, the Registrar relies on their internal policies when they require confirmation of six months of mental and emotional stability before considering reinstatement of the appellant’s driver’s licence. The Registrar highlighted in the appellant’s case that he has mild cognitive impairment/mild dementia and required two or more hospitalizations in the past year for his mental health condition.

25Section 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 but are not bound by them.

26The appellant’s representative argued that the appellant’s licence should be reinstated for the following reasons: he has had no episodes of hallucinations in the past five months; he is a safe driver; he sees his doctor regularly and is adherent to medication; he is aware of when it is unsafe for him to drive; he only drives for certain hours during the daytime; Dr. G confirmed on the latest Mental Health Disorder Form that he is compliant and medically stable; he will be moving in with his daughter who will provide oversight with respect to his driving; his independence is incredibly important to him.

27Under cross-examination about the events leading to the submitted documentation, the appellant’s representative reported she is not aware of the events that led up to the July 4, 2024 event that caused nurse L who works with the police crisis intervention team to phone Dr. G and report her concerns with the appellant’s ability to drive due to seeing things that were not there. As mentioned, hospital records shared by the appellant’s representative document that a hospitalization occurred at the end of July for major neurocognitive disorder with psychosis. It is not clear what the circumstances were around this hospital admission.

28The appellant’s representative shared information from her client along with hospital discharge records from a hospital admission, August 4 – 14, 2024. The appellant’s representative reported that while the appellant’s licence was under suspension for a Mental Health Condition, he had an episode where he believed people would not leave his vehicle, so he drove to the police station for assistance. This led to the appellant being charged for driving with a suspended licence and a hospital admission where the appellant was treated with escalating doses of an anti-psychotic medication, risperidone, to control the hallucinations he was having. The appellant subsequently left the hospital against medical advice after ten days. Documentation from the discharge record shared during the hearing reported that because the appellant had left against medical advice, planned cognitive and functional testing would not be completed, the appellant was at risk of becoming psychotic again and the appellant was encouraged to continue the risperidone as prescribed.

29The appellant’s representative was questioned regarding ongoing medication use and healthcare provider follow up for the appellant’s cognitive impairment and psychosis. The appellant’s representative indicated that the appellant had communicated he was taking the medication cyclobenzaprine for his episodes and did not drive after taking this medication due to the bottle label that it may cause drowsiness. As a licensed physician in Ontario, s. 16 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22, authorizes me to take notice of any generally recognized scientific or technical facts, information or opinions within my specialized knowledge. Under this section I find it unusual and illogical that cyclobenzaprine would be prescribed as a treatment for hallucinations as it is a medication that is a muscle relaxant.

30The appellant’s representative was questioned regarding the ongoing use of the anti-psychotic medication risperidone, as indicated in the hospital discharge summary. Cross referencing what the appellant had told his representative with pharmacy records, the appellant’s representative reported that he is not taking risperidone. There is no medical documentation provided that suggests the anti-psychotic was discontinued by a healthcare provider; the only medical documentation available regarding risperidone use is that it should be continued to avoid the risk of psychotic symptoms returning.

31It was reviewed that nurse MK reported in her letter dated July 15, 2024, that the appellant refused assessment by a geriatric psychiatrist and was then subsequently offered an assessment with a Care of the Elderly Physician, which the appellant also refused. In this report, nurse MK reported to Dr. G, “we would strongly recommend if you have driving safety concerns that you complete an MTO report”. Nurse MK then outlined that the appellant had told her he was involved in an incident while driving where he was in an accident that was extensive enough that the repairs required for the car to be driveable would have been too costly resulting in him purchasing another vehicle.

32The appellant’s representative was questioned whether any assessment with a geriatric psychiatrist or Care of the Elderly physician had taken place, but to her knowledge no assessment had taken place. The appellant’s representative was questioned whether the cognitive and functional testing that had been ordered while in hospital in August had taken place as an outpatient, but to her knowledge it had not.

33The appellant’s representative was asked if Dr. G had been asked for a letter of support to reinstate the appellant’s driver’s licence. The representative reported that the appellant had made this request of Dr. G, but that Dr. G was not willing to provide further documentation and indicated what she had already provided was sufficient. I take note that Dr. G had written a letter dated August 20, 2024, that documented the appellant was not psychotic or distressed and that the appellant was requesting reinstatement of his licence. There is no suggestion that Dr. G supports the reinstatement of his licence in this letter nor in the Mental Health Disorder Form dated Nov. 17, 2024, which makes no reference at all to supporting reinstatement of his licence.

34I appreciate the appellant’s position that his mental health concern will not interfere with his ability to drive. I also take note that psychotic episodes may be the most urgent psychiatric situation regarding fitness to drive and an acute psychotic episode is incompatible with safe driving. Furthermore, cognitive impairment often has its own direct effect upon fitness to drive. This is given weight when taking into consideration the appellant’s insight into his medical conditions. Insight is an important consideration when considering safety to drive. Insight means that a driver is aware of their medical condition, understands how the condition may impair their functional ability to drive and are monitoring for those periods where the disease state may be incompatible with driving. I am concerned about the level of insight and understanding the appellant has into his conditions for several reasons. First of all, the appellant drove while psychotic when his licence was under suspension for a mental health condition. Secondly, the medical evidence documents the appellant has been involved in a collision that resulted in sufficient damage to his vehicle that he needed to purchase a new car, and lastly the appellant has not sought out necessary healthcare when unwell as evidenced by police presence being required on two occasions to assist the appellant in seeking medical assistance.

35Insight into a condition also means that a driver has the judgement and willingness to comply with a suggested treatment regimen. From the medical evidence and oral testimony, the appellant has demonstrated a pattern of not complying with suggested investigations and treatments. Nurse MK has written on July 15, 2024, that the appellant was not willing to undergo the planned assessment by a geriatric psychiatrist; Dr. G has written on the MCR July 16, 2024 that the appellant was non-compliant; the hospital discharge paperwork from August 14, 2024 reports that the appellant left hospital against medical advice and review the appellant’s current medications demonstrate that he is not taking the anti-psychotic medication prescribed at discharge from hospital to prevent further episodes of psychosis.

36As the appellant did not attend the hearing, there is no countervailing evidence from the appellant that could help address the topic of insight.

37What the CCMTA standards highlight prior to considering reinstatement is a period of stability and the Registrar is requesting a six-month period of stability. I appreciate that the medical evidence has documented stability for less than this time period at this point. The representative’s position that the appellant has not had an episode of visual hallucinations in five months is noted, but I recognize that it is also reported that he was admitted to hospital with hallucinations just over three months ago.

38I appreciate the hardships that the appellant is undergoing with the loss of his driver’s licence but given the medical evidence and the individual merits of this case, I believe a longer period of stability is reasonable and prudent for road safety given the risks associated with driving during a psychotic episode and that the appellant has not complied with treatment recommendations to prevent further psychotic episodes.

39Although this Tribunal is not bound by the CCMTA Standards, they can be considered when making the decision for the reason that these Standards are the result of a lengthy and intensive process to provide medical standards based on the best evidence available and with a focus on functional ability to drive rather than exclusively on medical diagnoses.

40As such, for the reasons cited, I am satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to drive safely.

Conclusion

41I 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, and that condition is likely to significantly interfere with his ability to drive a motor vehicle safely.

ORDER

42For the reasons set out above, pursuant to subsection 50(2) of the Act, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.