T.P. v. Registrar of Motor Vehicles, 2024 CanLII 35842

Licence Appeal Tribunal File Number: 15718/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:

T.P.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

PANEL:

Dr. Dimitri Louvish, Member

Colin Osterberg, Vice-Chair

APPEARANCES:

For the Appellant:

T.P., appellant

For the Respondent:

Ian Sookram, representative

Heard by Teleconference: April 11, 2024

OVERVIEW

1T.P. (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (“Registrar”) 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 reports from two police officers that the appellant was involved in incidents which caused the police officers to believe the appellant posed a risk to public safety while operating a motor vehicle.

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 Minister of Transportation may require a driver to provide satisfactory evidence that they are able to drive safely.

3The Registrar takes the position that the appellant suffers from a medical condition, namely mental health condition, that is likely to significantly interfere with her ability to drive safely and that this provides sufficient reason to suspend her licence under s. 47(1)(g) of the Act.

4The appellant appeals the suspension under s. 50(1) of the Act. They acknowledge that she suffers from a mental health condition but deny that she suffers from a medical condition which interferes with her ability to drive 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.

PRELIMINARY ISSUES

6At the commencement of the hearing, the appellant objected to the admission into evidence of a letter sent to her by the Registrar that morning stating that her licence remains suspended. The letter is dated April 11, 2024, and was filed with the Tribunal that morning. The appellant submitted that the letter was served after the deadline for disclosure set at the case conference and that she was unable to adequately review the letter in preparation for the hearing.

7The Registrar’s position was that the letter did not alter its position on the appeal and did not contain any new information but rather reiterated its decision with respect to the suspension of the appellant’s licence. The Registrar did not object to the exclusion of the letter from evidence at the hearing.

8In the circumstances, the Tribunal ordered that the letter dated April 11, 2024 not be admitted into evidence and that letter was not considered by the Tribunal in its decision on the appeal.

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 mental health condition?

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

11The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”

RESULT

12Having 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 a mental health condition?

13The evidence presented at the hearing establishes that the appellant suffers from a medical condition.

14The Registrar’s position that the appellant lives with a mental health condition is supported by several medical reports completed by her treating neurologist, Dr. D.H. Kim, a treating psychiatrist, Dr. Rodway-Norman, Dr. Tomas Novak, an Emergency Room physician at Mount Sinai Hospital in Toronto, family physician Dr. Burridge, and treating psychiatrist Dr. M. Uhoegbu.

15In a report dated September 21, 2007, Dr. Kim states that the appellant has a history of bipolar disorder and borderline personality disorder. Dr. Kim reports that the appellant had recently been going through a period of severe depression which culminated in an overdose attempt while in the midst of an alcohol binge.

16In a February 17, 2010, progress note, Dr. Rodway-Norman reported that he had been treating the appellant for conditions of bipolar mood disorder and borderline personality disorder for the past two years. Dr. Rodway-Norman’s progress note of June 14, 2010, reports the same diagnoses.

17On November 3, 2021, Dr. Burridge submitted a Mental Health Disorder form to the Ministry of Transportation (“MOT”) in which Dr. Burridge indicates that the appellant’s primary diagnosis is personality disorder for which she is taking medication. Dr. Burridge confirms this diagnosis in a Mental Health Disorder form completed November 24, 2021.

18On October 2, 2023, Dr. Uhoegbu completed a Mental Health Disorder form indicating that the appellant had been diagnosed with personality disorder and major depressive disorder.

19The appellant acknowledges that she suffers from a mental health condition. She presented no evidence which contradicts the evidence of the above health providers with respect to her mental health diagnoses. She did suggest that she does not have bipolar disorder, however we prefer the evidence of the qualified medical doctors who have assessed her over the appellant’s unsupported self-assessment in this regard.

20We 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 her ability to drive a motor vehicle safely?

21We find that the Registrar has proven on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with her ability to drive a motor vehicle safely.

22The Registrar argues that appellant’s mental health condition interferes with the appellant’s ability to drive safely. It submitted in evidence two police reports in support of its position in addition to medical documentation provided by the above-named physicians. The police reports allege multiple incidents which support the conclusion that the appellant’s mental health condition interferes with her ability to drive a motor vehicle safely.

23The appellant denies that her mental health conditions interfere with her ability to drive a motor vehicle safely and relies on the medical documentation that has been filed in evidence, none of which, according to her, states that her mental health conditions impact her ability to drive a motor vehicle safely. She denies that the allegations made by the two police officers are accurate and says her driving record supports that she is a safe driver.

24In a police report dated February 6. 2024, Officer Brendan Pichette reported that on that date the Ontario Provincial Police (“OPP”) received a call for service reporting that the appellant was making suicidal comments and was driving around Peterborough County. Officer Pichette reported that police dispatch spoke with the appellant who advised she was extremely suicidal and had violent tendencies. Officer Pichette states that the appellant was located in a parking lot where OPP attempted to conduct a traffic stop. The appellant was stated to be uncooperative with police, was witnessed taking multiple pills, was in a heightened state and was unpredictable.

25The appellant denies Officer Pichette’s version of events. She says she had been in a disagreement with someone and became escalated and so she parked her vehicle in a parking lot. She received a call from the police and she de-escalated. She was told by police to go for a wellness check and as she was about to leave the parking lot, OPP stopped her vehicle and asked her to exit the vehicle. She says it did take her a few minutes to follow the police instructions, but she then got out of the car. She says the pills she was seen taking were two acetaminophen tablets.

26Although Officer Pichette’s evidence was presented by way of his Police Report and not through oral testimony at the hearing, the report was made as part of Officer Pichette’s duty as a police officer and is consistent with evidence contained in the medical documentation that has been filed. The following medical evidence supports the reliability of the events of February 6, 2024, as set out in his Police Report.

27Dr. Kim reported that the appellant had a history of bipolar disorder and personality disorder. He reported that during a period of severe depression she made a suicide attempt in 2007.

28In Dr. Rodway-Norman’s February 17, 2010, report, self-injurious behaviours are reported. Dr. Rodway-Norman’s June 14, 2010, progress note reports that the appellant had been hospitalized due to recurrent self harm behaviours.

29In a Medical Condition Report dated October 26, 2021, Emergency Room physician Tomas Novak reported that the appellant had a psychiatric disorder and “has a plan involving a vehicle, potential harm to self & others”. Dr. Novak’s handwritten note states that the police brought the appellant to hospital from the upper floor of a parking garage where she was exhibiting erratic behaviour and threatening to drive off the roof. She had initially refused to cooperate with police and had been injured while they removed her from her car.

30In a response to a Human Rights Tribunal complaint made by the appellant against Dr. Novak on October 26, 2022, arising out of the October 26, 2021, incident, Dr. Novak states that he sincerely believed that the appellant had a plan involving a vehicle. He states that within hours of being released from the Centre for Addiction and Mental Health (“CAMH”), the appellant’s therapist contacted the police due to concerns of potential self-harm with the appellant locking herself in the car and refusing to leave, struggling with and resisting officers and requiring sedation once brought to hospital. Dr. Novak states:

In my judgment and assessment at the time, the car was a material feature in the events leading up to [T.P.’s] admission to the hospital. Based on her behaviour as described to me and observed by me, and the surrounding circumstances, I felt she presented a risk if she were permitted to drive.

31Dr. Novak’s description of events in 2021 and 2022 is consistent with Officer Pichette’s description of the events in February of 2024.

32The appellant points to the Mental Health Disorder form completed by Dr. Burridge on November 3, 2021, which states that the appellant had never threatened any self-harm related to driving and that the loss of her licence would be significantly detrimental to her condition. On November 24, 2021, Dr. Burridge reported that the appellant had never exhibited or expressed any thoughts of self-harm in relation to driving and denied this being the case when seen by Dr. Novak. Dr. Burridge does note that the appellant had always sought appropriate care when she had thoughts of self-harm in the past and had never driven under the influence of a substance.

33We note that Dr. Burridge is mistaken when she describes that the appellant always sought appropriate care when she had thoughts of self-harm given that she had previously attempted suicide while intoxicated as documented by both Dr. Kim and Dr. Rodway-Norman. Also, given that Dr. Uhoegbu documents two overdoses on medication which occurred in May or June 2022, Dr. Burridge’s statement that the appellant always sought appropriate care when she had thoughts of self-harm is inconsistent with the appellant’s actions only six-months later.

34We note that the incident which occurred October 26, 2021, resulted in the appellant’s licence being suspended for medical reasons which suspension the appellant appealed to the Tribunal. The Tribunal considered, among other things, Dr. Novak’s report and Dr. Burridge’s reports and concluded that the Registrar had discharged its onus of establishing that the appellant’s mental health condition was likely to significantly interfere with her ability to drive a vehicle safely at that time.

35Dr. Uhoegbu, in his June 6, 2022, report states that the appellant had two overdoses on medication in the past month. He says that this does not affect her ability to drive. Dr. Uhoegbu does not specifically comment on whether the appellant’s mental health condition affects her ability to drive.

36On October 21, 2022, Dr. Uhoegbu reported that the appellant’s driver’s licence was suspended on July 15, 2022, based on her mental status. Dr. Uhoegbu does not comment on her ability to drive at that time but does state that she had maintained over three months of mental stability and had been compliant with her medications.

37On October 23, 2023, Dr. Uhoegbu reported that the appellant was mentally and emotionally stable in the past three months and that her medication does not affect her ability to operate a vehicle. He does not comment on whether the appellant’s mental health condition might impact her ability to drive a motor vehicle safely.

38On April 2, 2024, Dr. Uhoegbu reported that the appellant is on medications which do not affect her driving abilities and which are taken during the day for emotion regulation which has improved, and which does not cause sedation for the appellant. Dr. Uhoegbu does not comment on the impact of the appellant’s mental health condition on her ability to drive.

39In our view, Officer Pichette’s description of the events which occurred on February 6, 2024, is consistent with the appellant’s history of suicidal thoughts and actions and has significant similarities with the incident described by Dr. Novak in October 2021, including the presence of the appellant in a car while being significantly suicidal, being uncooperative with police, and being in a heightened state.

40We do not accept the appellant’s description of the events which occurred on February 6, 2024. She says that she de-escalated when talking to police on the phone and was told to drive herself to hospital for a wellness check. This is inconsistent with the appellant’s past behaviours and with the fact that OPP officers came to the scene, stopped her, and asked her to exit the vehicle. If the appellant had de-escalated to the point where the police officer on the phone thought she was safe to drive herself for a wellness check, it is unlikely that the OPP would have engaged her as they did. Further, it is unlikely that the police would have told the appellant she should drive herself anywhere when she had just experienced an escalated state as was described. The appellant agrees that it took her a few minutes to comply with the police officers’ request to exit the vehicle which is evidence that she was continuing to experience a state of escalation and despite that was intent on driving her vehicle and was in fact driving when the OPP stopped her.

41A further police report was provided to the MOT dated February 15, 2024, by officer Jiri Hlavacek. Officer Hlavacek reports that the appellant suffers from PTSD, bipolar disorder, and personality disorder. He states the appellant has been apprehended 22 times under the Mental Health Act by police, 10 times in 2024. He says that one of the incidents involved the appellant driving a motor vehicle while suicidal. He says the appellant is known to cut herself and made multiple attempts to kill herself by overdosing on prescribed medication. He says the appellant is very unstable and a great risk to public safety while operating a motor vehicle as she is often impaired by alcohol and medication.

42At the hearing, the appellant denied much of Officer Hlavacek’s report. She denied that she suffers bipolar disorder, that she had been apprehended under the Mental Health Act as frequently as alleged, that her self-harm activities impact her driving or that she has had multiple suicide attempts. She also denied being frequently impaired.

43In our view, Officer Hlavacek’s report is consistent with the medical documents in evidence. The appellant has been diagnosed with bipolar disorder by at least two qualified doctors and her several suicide attempts are documented in the medical reports that have been filed. She admits that one apprehension by police involved a motor vehicle in 2024 and the records show another which occurred in 2021.

44We will not consider Officer Hlavacek’s opinion evidence with respect to whether the appellant is safe to drive a motor vehicle as he was not presented as an expert and his opinion was not subject to cross-examination. However, we do accept his evidence that the appellant has been apprehended several times in 2024 under the Mental Health Act and that one of those occasions involved a motor vehicle as described by Officer Pichette.

45The appellant does agree that she has been apprehended under the Mental Health Act two or three times in 2024. She took the position that this is evidence that her mental health condition is not as serious as was presented in Officer Hlavacek’s report. Even accepting that characterization, we find that three apprehensions under the Mental Health Act is a serious matter. It indicates that the appellant’s mental health condition is not stable as is alleged by the appellant. Her characterization of the lack of seriousness of three apprehensions so far in 2024, indicates that the appellant lacks insight into her condition.

46The Registrar relies on Chapter 14 of the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”) which notes that drivers with psychiatric conditions are at increased risk of adverse driving outcomes and that suicide attempts play a significant role in motor vehicle crashes. The CCMTA Standards state that psychiatric disorders can result in either a persistent or episodic impairment of the functions necessary for driving although drivers with good insight are more likely to be diligent about their treatment regime and to seek medical attention and avoid driving when experiencing acute episodes and have the judgment and willingness to adapt their driving to these limitations.

47According to Chapter 14.6.1 of the CCMTA Standards, drivers with mental health or psychiatric disorders 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 and a treating physician supports a return to driving.

48Section 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.

49The appellant argues that her treating doctors have no concerns with her driving and have not submitted a report to the MOT stating that the appellant is unsafe to drive. She points out that her driving record is good and that she has never tried to harm herself or others while driving.

50We acknowledge that the appellant’s current health care providers, Dr. Uhoegbu and Dr. Burridge have not specifically stated that the appellant should not be licensed to drive based on her mental health condition. We also acknowledge that on November 24, 2021, Dr. Burridge reported that at that time the loss of her licence would be detrimental to the appellant’s condition. However, since then the appellant has had at least two suicide attempts, multiple Mental Health Act apprehensions, several hospitalizations for mental health issues and regular involvement with police. In particular, the appellant was noted to be suicidal in February 2024 while driving a motor vehicle before she was apprehended by police.

51Although her doctors have at times reported the appellant’s condition as stable, that description falls short of endorsing that the appellant is safe to operate a motor vehicle. Moreover, given the fact that in the first three or four months of 2024, the appellant has had, according to the appellant, three apprehensions under the Mental Health Act, and 10 apprehensions according to Officer Hlavacek, we find that the appellant’s condition is not stable and we do not accept her doctors’ statements to the contrary.

52The appellant’s doctors have also endorsed that the appellant’s insight and judgment is not impaired by her mental health condition. Given the events which took place in February 2024, and in particular the fact that the appellant continued to drive her motor vehicle while suicidal and resisted police attempts to prevent her from doing so, we do not accept that the appellant continues to have good judgment or insight sufficient to avoid driving at times when her mental health condition is acute.

53Finally, although the appellant’s doctors have communicated some findings which are favourable to the appellant, none of them have directly expressed support for the reinstatement of the appellant’s licence. We find this to be a significant concern in the present circumstances. Both Dr. Burridge and Dr. Uhoegbu have had several opportunities to contradict the Registrar’s position that the appellant’s mental health condition is likely to significantly interfere with her ability to drive a motor vehicle safely and they have not done so.

54We find that the CCMTA Standards with respect to reinstatement have not been satisfied by the appellant. We find that her condition is not stable, she lacks insight into her condition and its effect on her ability to drive safely, and she has not presented evidence that satisfies us that her treating doctors support reinstatement. While we are not bound by the CCMTA Standards, in this case we find them to be reasonable and that these factors support the Registrar’s position that the appellant’s licence should not be reinstated at this time.

55We find that the Registrar has established that the appellant’s mental health condition is likely to significantly interfere with her ability to drive a motor vehicle safely.

Conclusion

56We 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, that is likely to significantly interfere with her ability to drive a motor vehicle safely.

ORDER

57For 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.