Licence Appeal Tribunal File Number: 15568/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:

Uko Abara

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

PANEL:

Erica Weinberg, M.D., Adjudicator

Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant:

Uko Abara, Self-represented

For the Respondent:

Stephen Grootenboer, Representative

HEARD by teleconference: February 13, 2024

OVERVIEW

1Uko Abara (the “appellant”) appeals the decision of the Registrar of Motor Vehicles (the “Registrar” or the “respondent”) to suspend his Class G licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”) as set out in the Registrar’s letter dated December 8, 2023, (“suspension letter”) after the Registrar received a medical condition report dated December 5, 2023 from Dr. Maurice Levitan, neurologist, which reports that the appellant suffered a “…prolonged attack of loss of consciousness took a very deep breath getting up in the morning has been sleep deprived…study results pending referring physician respirologist was concerned about a possible seizure because unconsciousness lasted 30-40 minutes awaits MRI brain and EEG told to stop driving for now.” The suspension letter states that the licence suspension is based on seizure.

2Pursuant to s. 203(1) and (2) of the HTA and s. 14.1(1) and (3) of O. Reg. 340-84 (the “Regulation”), Dr. Levitan as a physician is required by law to report to the Registrar any person 16 years of age or older who in his opinion has or appears to have a prescribed medical condition, functional impairment or visual impairment, and is also permitted to report any person, in his discretion, who has or appears to have any other such condition or impairment that may make it dangerous for the person to drive.

3Section 14(1)(a) of the Regulation states that a holder of a driver’s licence must not suffer from any physical condition or disability likely to significantly interfere with his or her ability to safely drive a motor vehicle of the applicable class. Under s. 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.

4The appellant appeals the suspension under s. 50(1) of the HTA. The appellant’s grounds for appeal stated in his Notice of Appeal are that he has never been informed by any medical health practitioner of the submission of any information that may result in the suspension of his licence, he has not been diagnosed with “seizure”, he has never received any medical test result that provides any evidence or conclusion supporting this diagnosis, he has not received or been prescribed any treatment for this condition, and “seizure” has not and will not interfere with his ability to safely operate a motor vehicle.

5The appellant requests that the suspension be set aside and that he be awarded costs.

PRELIMINARY ISSUES:

Appellant’s Oral Motion for a Confidentiality Order

6At the beginning of the hearing, the appellant brought an oral motion seeking a confidentiality order from the Tribunal removing from the Tribunal’s file all his health information, his name, and identifying information such as his address (“personal information”). The appellant relies on s. 204(3) of the HTA and the provisions of the Personal Health Information Protection Act, 2004, S.O. 2004, c. 3.

7The Registrar takes no position regarding the appellant’s name being removed from the record and submitted that what the Tribunal does with the information provided to it during the course of this appeal is up to the Tribunal.

8There were no members of the public present at the hearing. Neither party had requested permission from the Tribunal to record the hearing. The appellant did not request an order limiting public access to the hearing.

9We view the appellant’s motion as the appellant requesting an order limiting public access to the Tribunal’s adjudicative records, and an order anonymizing the Tribunal’s decision and a publication ban.

10Our decision on this motion was reserved so that the hearing could proceed on the scheduled date. We indicated that our decision on the motion would be included in our written decision on the merits of the appeal. This is our decision on the motion and the reasons for it.

Order on Appellant’s Confidentiality Motion

11For the reasons set out below, we deny the appellant’s motion for a confidentiality order. We are of the view that an order limiting public access to the Tribunal’s adjudicative records, an order anonymizing the Tribunal’s decision, and a publication ban in whole or in part is not warranted.

Confidentiality Order: The Law

Access to adjudicative records

12The Tribunal’s adjudicative records are generally open to the public, in accordance with the open court principle: see Toronto Star v. AG Ontario, 2018 ONSC 2586 (“Toronto Star”). For proceedings commenced on or after June 30, 2019, s. 2(1) of the Tribunal Adjudicative Records Act (“TARA”) also requires that adjudicative records be made available to the public. Adjudicative records include the notice of appeal, the evidence and submissions in the proceeding, the Tribunal’s decision, along with the other documents listed in s. 1(2) of TARA.

13As public access to adjudicative records is protected by s. 2(b) of the Charter of Rights and Freedoms, restrictions on access are exceptional. Pursuant to s. 2(2) of TARA, the Tribunal may order that all or part of an adjudicative record be treated as confidential and not disclosed to the public if the Tribunal determines that:

a. matters involving public security may be disclosed; or

b. intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.

14Rule 13.1 of the Licence Appeal Tribunal Rules, 2023 (“Rules”) is consistent with TARA and permits the Tribunal to restrict public access to the adjudicative record on the same grounds.

15The test established by the Supreme Court of Canada for ordering publication bans (“Dejanais/Mentuck”) provides further guidance when considering whether to override the principle that tribunal proceedings should be open to the public: Toronto Star at paras. 89-93; R. v. Mentuck, 2001 SCC 76 at para. 32. The test was recently recast by the Supreme Court of Canada in Sherman Estate v. Donovan, 2021 SCC 25 (“Sherman Estate”). The Court held that a person seeking to limit the open court presumption must establish that:

(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.

16In Sherman Estate the Court recognized that privacy can be an important public interest under the discretionary test where it can be demonstrated that protection of human dignity is at risk. Where one’s dignity is impaired, the impact on a person is no longer theoretical, but can have real consequences on psychological or physical well-being. The justice system suffers when its processes inflict harm such as this, and thus steps must be taken to avoid it: Sherman Estate at para. 72.

17Dignity may be undermined where the information reveals something sensitive about the person as an individual, as opposed to generic information that reveals little about who they are as a person. The information sought to be protected must be sufficiently sensitive that it strikes at one’s “biographical core”—it must consist of intimate and personal details about the person, their lifestyle or their experiences. The Court in Sherman Estate highlighted some examples of information that have been recognized by courts in the past as being sufficiently sensitive, including information about stigmatized work, sexual orientation and subjection to sexual assault or harassment. It also agreed that detailed information about family structure and work history could, in certain cases, constitute sensitive information that requires protection: Sherman Estate at paras. 35, 75-79.

18The Court also noted 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. Moreover, the threshold is high and context-specific—in order to preserve the integrity of the open court principle the public interest in dignity will only be found to be seriously at risk in exceptional cases. Disadvantage, embarrassment, or distress caused by openness will typically be insufficient on their own to interfere with the openness of proceedings: Sherman Estate at paras. 56, 62-63, 79, 84.

19Where information is found to be sufficiently sensitive to strike at one’s “biographical core”, a court must then ask whether a serious risk to the interest is made out in the specific context of that case. In determining this, the court may consider, among other factors: (1) the extent to which the information would be disseminated without a confidentiality order, including a recognition that we live in an electronic age in which information may be easily disseminated; (2) the extent to which the information is already publicly available; and (3) a consideration of both the gravity of the feared harm and its probability of occurring, based on the totality of the circumstances: Sherman Estate at paras. 79-84.

20The same principles apply to requests to anonymize the names of the parties, or to requests for publication bans. Normally, the Tribunal’s decisions include the names of the parties to the proceeding, in accordance with the open court principle: see Toronto Star v. AG Ontario, 2018 ONSC 2586. Tribunal hearings are generally open to the public in accordance with the open court principle. Central to the open court principle is access by the press: Toronto Star v. AG Ontario, 2018 ONSC 2586 at para. 4. To depart from the open court principle through anonymizing the names of the parties or by way of a publication ban requires satisfying the test described in Sherman Estate, s. 2(2) of TARA, and Rule 13.1 of the Rules.

ANALYSIS

No Order Granted Limiting Public Access to the Tribunal’s Adjudicative Records

21Here the appellant’s request is based on his personal desire for privacy.

22In considering whether all of part of an adjudicative record should be treated as confidential and not disclosed to the public, we have considered the criteria in s. 2(2) of TARA and find that the appellant’s motion does meet the test. Specifically:

a. This appeal does not involve matters of public security.

b. Although some of what the appellant is seeking to remove from scrutiny is personal health information and this may be qualitatively different from a driving record, the onus is on the appellant to bring forward evidence and make submissions that this information should be removed from scrutiny.

In Khan v College of Physicians and Surgeons of Ontario, 2023 ONSC 848, at paras. 10-14 the Divisional Court recently said:

“[10] In Sherman Estate, at para. 73, the Supreme Court held that “[p]rotecting individuals from the threat to their dignity that arises when information revealing core aspects of their private lives is disseminated through open court proceedings is an important public interest for the purposes of the test.” The Supreme Court further stated that “[v]iolations of privacy that cause a loss of control over fundamental personal information about oneself are damaging to dignity because they erode one’s ability to present aspects of oneself to others in a selective manner”: Sherman Estate, at para. 79. Patient health information, which is ordinarily confidential, strikes at the biographical core of an individual and is “sufficiently sensitive” to warrant the order sought: Sherman Estate, at para. 35.

11The confidentiality of patient records and of individuals’ personal information (including health information) is an important public interest. The importance of maintaining confidentiality of health records is enshrined in legislation, such as the Personal Health Information Protection Act, 2004, S.O. 2004, c.3, Sched. A (“PHIPA”), which permits disclosure of personal health information (including OHIP numbers) only in limited circumstances. Confidential patient health information strikes at the biographical core of an individual and is sufficiently sensitive to warrant the order sought: Sherman Estate, at para. 35….

14Accordingly, I am satisfied that court openness poses a serious risk to an important public interest.”

23Here, there is a lack of evidence brought forward by the appellant concerning his human dignity. Accordingly, we find that the appellant’s human dignity is not at risk. The appellant brought forward no evidence that this appeal involves intimate financial or personal matters of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.

24The appellant’s personal information, including his driving record, reveals nothing sensitive about him as an individual and reveals little about who he is as a person except that he appears to have undergone an episode which his physician is concerned about, investigations are ongoing, and his physician has advised the appellant not to drive at this time, a recommendation which the Registrar has ensured by suspension of his driving licence at this time. We have no evidence before us of stigmatized work, sexual orientation, subjection to sexual assault or harassment. We have no evidence about the appellant’s family structure and/or work history that requires protection. As the Court has noted, it is never sufficient to raise a recognized interest on its own but a serious risk to that interest must be demonstrated. Disadvantage, embarrassment or distress caused by openness will typically be insufficient to interfere with the openness of a proceeding.

25Here, we find no evidence brought forward by the appellant of information that is sufficiently sensitive to strike at his “biographical core”.

26We are of the view that the appellant’s desire for privacy does not outweigh the public interest in openness in this case. Further, even if the personal health information is sensitive, we find that limiting public access to the substance of the information that forms the basis for the Tribunal's decision would not be in the public interest.

No Order Granted Anonymizing the Tribunal’s Decision

27Although the Registrar takes no issue with the appellant’s name being removed from the records, this does not end our analysis.

28For the reasons set out above, and based on our factual finding that the appellant’s human dignity is not at risk, we find that an anonymization order should not be granted because the appellant’s specific privacy interest in this case does not outweigh the public interest in openness.

No Order Granted Imposing a Publication Ban

29The appellant requests that his name and identifying information be removed from this Decision.

30The Registrar made no submissions on this point.

31For the reasons set out above, and based on our finding that the appellant’s human dignity is not at risk, we are of the view that the appellant’s request does not meet the test for publication band set out in Dagenais/Mentuck. Specifically:

(1) a publication ban is not needed to prevent serious risk to the proper administration of justice;

(2) reasonable alternative measures would not prevent the risk; and

(3) benefits of the publication ban outweigh the public interest in openness.

Appellant’s Request to Accept His “Redacted” Version of Respondent’s Submissions and not the Respondent’s Original Version of Submissions

32Although this document was produced late, the appellant asked that the Tribunal accept a version of the Registrar’s submissions for the hearing that he had “redacted” by blacking out information in the submissions that he objected to being made public. In summary, the appellant submitted that anything he had “redacted” in the Registrar’s submissions is not relevant to this appeal and that under s. 15 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) we should only accept the appellant’s “redacted” version and exclude the Registrar’s original version because it is not relevant, is unduly repetitious, and contains “privileged” information.

33The Registrar opposed the filing of this document on the basis that the “redacted” version of its submissions put forward by the appellant did not represent the submissions the Registrar wished to make. Alternatively, the Registrar submitted that if the “redacted” version was accepted by the Tribunal for filing, the Tribunal should nonetheless only take into consideration the unredacted version of the Registrar’s submissions.

34Having considered the submissions of both parties, we accepted the appellant’s “redacted” version of the Registrar’s submissions in addition to the Registrar’s original, unredacted, version of the Registrar’s submissions so that the “redacted” version could be available for the appellant to refer to at the hearing and the original version could be available for the Registrar to refer to at the hearing. We do not find the Registrar’s submissions to be irrelevant, unduly repetitious or to contain “privileged” information.

Appellant’s Request to Submit the Full Version of the CCMTA (Canadian Council of Motor Transport Administrators)

35Although submission of this document was late, the appellant asked to submit the October 2005, 2nd Edition of The National Safety Code (NSC) for Motor Carriers which was developed by the member jurisdictions of the CCMTA in conjunction with the motor carrier industry, because he wished to refer to it during the hearing.

36The Registrar opposed the filing of this document on the basis that the Registrar had already filed the relevant portion of the CCMTA, specifically relevant chapters of the CCMTA Medical Standards for Drivers (“CCMTA Standards”) [February 2021].

37Having considered the submissions of both parties, we accepted the appellant’s more fulsome version of the CCMTA so that it could be available for the appellant to refer to at the hearing.

ISSUES

38The Tribunal’s Case Conference Report and Order made at the case conference held January 30, 2024 clarifies that the Registrar has suspended the appellant’s driver’s licence because of prolonged loss of consciousness and possible seizure. The issue currently in dispute is whether the appellant suffers from a medical condition, namely prolonged unconsciousness, possible seizure, that is likely to significantly interfere with his ability to drive a motor vehicle safely.

39Resolution of that issue requires us to address the following questions:

i. Does the appellant suffer from prolonged unconsciousness, possible seizure?

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

RESULT

40For the reasons set out below, pursuant to subsection 50(2) of the HTA, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

The appellant suffers from prolonged unconsciousness, possible seizure

41Dr. Levitan’s report filed by the Registrar indicates that the appellant suffered from an episode of prolonged loss of consciousness and seizure could not be ruled out. Dr. Levitan instructed the appellant not to drive and ordered an MRI brain (magnetic resonance imaging) and EEG (electroencephalograph.

42The appellant testified that he did not have an episode of prolonged loss of consciousness and/or seizure.

43We do not accept the appellant’s testimony on this point, which we find is inconsistent with and is unreliable given the appellant’s admissions that:

a. He discussed the episode with his respirologist.

b. His respirologist ordered a sleep study and the appellant underwent this test prior to the hearing.

c. His respirologist referred him to Dr. Levitan, a neurologist.

d. He attended the appointment with Dr. Levitan.

e. He underwent testing following the appointment with Dr. Levitan, including an EEG and a brain MRI, and Dr. Levitan referred the appellant to a cardiologist for assessment.

44We find that it is more likely than not that the appellant experienced an episode which required further investigation because his respirologist was concerned enough to refer the appellant to another specialist, this second specialist recommended further testing and referred the appellant to a third specialist for assessment, and the appellant participated in the second specialist consultation and several types of recommended testing.

45The appellant filed no medical reports or test results with the Tribunal. The result is that we are left with the medical condition report as the only medical information before us. Although the appellant’s testimony and submissions were critical of Dr. Levitan’s report because it does not specify the date of the episode and does not, in his view, give a definitive diagnosis, we find that Dr. Levitan’s report, when considered together with the admissions made by the appellant in his testimony, establishes on a balance of probabilities that the appellant suffers from prolonged unconsciousness, possible seizure. The medical condition report refers to “syncope versus seizure” and states the author is awaiting a brain MRI and EEG. While what has caused this medical condition remains uncertain, the fact that he suffers it has been established on a balance of probabilities at this time.

46Although the appellant relies on various previous Tribunal decisions in support of the proposition that a diagnosis must be made before the Tribunal can make a factual finding of a medical condition, we find that the differential diagnosis made in the medical report of syncope versus seizure to constitute a diagnosis of a medical condition on the date the report was made. There is no evidence that the author of the medical report has resiled from the diagnosis or revised it.

47Although the Registrar’s representative admitted that there is no diagnosis of seizure, the Registrar’s evidence is that there is a documented episode of unconsciousness in the medical condition report which may indicate a seizure and in any event is a risk to road safety. We do not accept the appellant’s position that a diagnosis must be made before we can find the appellant suffers from a medical condition. Here, the appellant had a prolonged period of loss of consciousness.

48The appellant’s Notice of Appeal indicates that he has never been informed by any medical health practitioner of the submission of any information that may result in the suspension of his licence, he has never received any medical test result that provides any evidence or conclusion supporting a seizure diagnosis and has not received or been prescribed any treatment for this condition. However, we find these submissions unpersuasive. The medical condition report indicates on its face that the appellant is aware of the report. The appellant admits that he has undergone testing as recommended by his neurologist but the results of the testing and up to date medical records were not provided to us.

49On considering the appellant’s own admissions and the medical information filed by the Registrar, we find that the appellant suffers from a medical condition, namely prolonged unconsciousness, possible seizure.

The appellant’s medical condition is likely to significantly interfere with his ability to drive safely

50We find that the appellant’s medical condition, specifically prolonged unconsciousness, possible seizure, is likely to significantly interfere with his ability to drive safely at this time for the following reasons.

51The medical condition report documents a prolonged loss of consciousness sufficient to prompt a further specialist referral by the appellant’s respirologist, a medical condition report from the second specialist, further testing after the second specialist consultation and a statement from the second specialist that the appellant was “…told to stop driving for now”.

52The appellant testified that he was not driving at the time of the episode of loss of consciousness and submitted that therefore loss of consciousness does not affect his ability to drive, such that his “seizure” has not and will not interfere with his ability to safely operate a motor vehicle. However, we find that the loss of consciousness episode occurred and there is a risk of recurrence, especially given that it is unexplained.

53We find appropriate the recommendation in the medical condition report that the appellant stop driving for now given the absence of any updated medical information before us. Loss of consciousness is clearly inconsistent with the safe operation of a motor vehicle on a public highway and a risk to the safety of the public.

54Although the appellant referred to various statements on the internet from unknown persons critical of the author of the medical condition report, we find this evidence to be hearsay and not relevant to this appeal.

55We find reasonable the Registrar’s position that the appellant’s medical condition and documented, unexplained, episode of loss of consciousness, when coupled with the recommendation of the appellant’s neurologist not to drive in the medical condition report, makes the re-instatement of the appellant’s driver’s licence at this time a risk to road safety.

56In our view, re-licencing at this time is not appropriate because the appellant more likely than not presents a safety risk to himself or others while driving given the unexplained episode of loss of consciousness, and the apparently ongoing investigations.

57We find on the basis of the medical evidence provided that the Registrar has met the burden of proof in this case on a balance of probabilities.

Costs

58In his Notice of Appeal, the appellant requested costs of this appeal because there was no basis for the initial suspension, the Registrar did not follow its own procedures and there was no diagnosis of a medical condition. The appellant seeks $1,000.00 for each of the case conference and the hearing on the basis that the Registrar’s conduct is unreasonable, frivolous and in bad faith and the Registrar’s conduct throughout this appeal should be disapproved of by the Tribunal.

59The Registrar disagrees that costs should be awarded to the appellant.

60We are not satisfied that there is any basis to find that Registrar’s conduct has risen to the level of acting unreasonably, frivolously, vexatiously or in bad faith during the conduct of the proceeding, as required by Rule 19 of the Rules to authorize a costs award. This is a high bar and the appellant has not met it.

61We decline to award costs to the appellant.

Conclusion

62We find that the appellant suffers from a medical condition, namely prolonged unconsciousness, possible seizure, and that this is likely to significantly interfere with his ability to drive a motor vehicle safely.

ORDER

63For the reasons set out above, pursuant to subsection 50(2) of the HTA, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.