Licence Appeal Tribunal File Number: 15965/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:

Karen Darling

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Dr. Erica Weinberg

APPEARANCES:

For the Appellant: Karen Darling, Self-represented

For the Respondent: Sharon Nelson, Representative

HEARD by teleconference: July 4, 2024

OVERVIEW

1Karen Darling (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (the “Registrar” or the “respondent”) to suspend their 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 police officer (“PO”) which stated that the single motor vehicle collision (“MVC”) the appellant was involved in was possibly due to a medical condition.

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 mental health condition, specifically anxiety disorder, that is likely to significantly interfere with their ability to drive a vehicle of the appropriate class safely and that this provides sufficient reason to suspend their licence under s. 47(1)(g) of the Act.

4The appellant appeals the suspension under s. 50(1) of the Act. They deny they suffer from anxiety disorder and deny they suffer from a medical condition which interferes with their 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 onset of the hearing, and out of fairness to the appellant, I inquired if the appellant had received, reviewed and had any concerns regarding the respondent’s letter dated June 27, 2024 (described in further detail below).

7Following a discussion, the appellant stated that they wished to proceed with the hearing as scheduled.

8Furthermore, in accordance with Rule 9.3 of the Licence Appeal Tribunal Rules, 2023, I took submissions from the parties regarding the respondent’s late submission of a document, specifically Chapter 14 of the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021], that they wished to rely upon at the hearing. Following a discussion which included the reason for failing to comply with the exchange of document date set out at the case conference, the relevance of the document to the issue before me and the fact that the appellant agreed to this document being allowed into evidence, I allowed this document into evidence.

ISSUES

9The 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 of the applicable class safely.

10To resolve that issue, I will address the following questions:

i. Does the appellant suffer from a mental health condition, specifically anxiety disorder?

ii. If so, is this likely to significantly interfere with their ability to drive a motor vehicle of the applicable class 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, I 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 their ability to drive a motor vehicle of the applicable class safely and I set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from a mental health condition, specifically anxiety disorder?

13The evidence presented at the hearing does not establish on a balance of probabilities that the appellant suffers from anxiety disorder.

14The appellant does not dispute that around 2 p.m. on November 2, 2023, while enroute to work, they were involved in a single MVC (roll over). The appellant testified that: they were the sole occupant of the vehicle; they do not recall the event; a PO attended the scene; they were transported to the nearest emergency room (“ER”); they were told by ER staff they suffered a concussion; their son drove them home from the ER; the PO apparently reached out to and spoke to their now ex-common law partner, Mr. Russell; Mr. Russell had the vehicle towed from the scene to their driveway where it remains in a non-drivable condition; and following an inspection of the vehicle it was determined there is an issue with a tie rod and wheel bearing, although they do not know if this issue happened just prior to or was the result of the MVC.

15According to PO Hlavack’s report, Mr. Russell advised PO Hlavack that the appellant “may have an onset of Alzheimer’s” and the appellant “deals with a lot of pain as well as takes a lot of pain medication”.

16By letter dated November 8, 2023, the Registrar suspended the appellant’s driver’s licence. The letter stated, “This suspension is a result of the Ministry receiving a report(s) indicating you have a condition that affects your ability to drive”. The Registrar requested the completion of two Ministry forms, those being a Cognitive Disorder form and a Seizure and Loss of Consciousness form.

17On June 26, 2024, the appellant submitted the two requested Ministry forms completed by their family physician, Dr. Antanrajakumar.

18Following a review of the completed forms, and by letter dated June 27, 2024, the Registrar stated that the appellant’s “reported condition(s) is (are) a mental health condition”. Furthermore, this letter stated what the Ministry now required prior to consideration of reinstatement of the appellant’s driver’s licence.

19The respondent’s representative relies on the fact that in the ‘Comments section’ of the completed Cognitive Disorder form, Dr. Antanrajakumar wrote, “mild cognitive impairment due to anxiety/stress – patient seen by Dr. Ho”.

20The appellant states that they: do not have nor have they ever been diagnosed with anxiety disorder; and they have never taken or been prescribed medications for anxiety.

21Furthermore, the appellant testified that: Dr. Antanrajakumar referred them to the ‘Alzheimer’s clinic’ following the MVC in an effort to help them regain their driver’s licence; they saw Dr. Ho at this clinic; they were aware that they did not score well on two portions of the cognitive test; they felt stressed and/or nervous doing the cognitive test at the clinic because they were being timed for portions of the test and because of the importance of the test in relation to them regaining their driver’s licence; and Dr. Antanrajakumar’s statement in the Comments section of the Ministry form refers to their scoring below normal on the cognitive test because of the situational stress and/or nervousness they felt at that time.

22I prefer the evidence and submissions of the appellant over those of the respondent and find on a balance of probabilities that the appellant does not suffer from anxiety disorder.

23Throughout the hearing I found the appellant to be thoughtfully detailed in their testimony and their explanations were coherent and forthright.

24In particular I take note of the fact that, in contrast to PO Hlavack’s hearsay evidence from Mr. Russell that the appellant “takes a lot of pain medication”, the appellant testified that they: had back surgery in 1998; do not currently take pain medication; and stopped taking pain medication a number of years ago. The appellant’s testimony is confirmed in the completed Seizure and Loss of Conscious form, where Dr. Antanrajakumar wrote, “patient was on Tylenol #3 for pain in 2018 – nothing since then”.

25I accept the appellant’s testimony that they have never been diagnosed with anxiety disorder and that Dr. Antanrajakumar’s written comment on the Ministry form refers to the appellant feeling stressed, nervous and/or anxious during the testing done at the clinic and scoring lower than expected on the cognitive test, i.e., isolated situational stress, nervousness and/or anxiety.

26I assign less weight to the respondent’s evidence and submissions that the appellant suffers from anxiety disorder. As a licenced and duly qualified physician practicing in Ontario, I know that feeling stressed, nervous and/or anxious does not mean that a person suffers from anxiety disorder. I know that the Diagnostic and Statistical Manual of Mental Disorders (“DSM-5”) contains a standard classification system of psychiatric (mental health) disorders for health care professionals in the United States and Canada and classifies mental health disorders into diagnostic categories, one of which is anxiety disorders. The DSM-5 sets out a number of criteria a person needs to fulfill before being diagnosed with generalized anxiety disorder (“GAD”), a type of anxiety disorder. Criterion A for the diagnosis of GAD states, “Excessive anxiety and worry (apprehensive expectation) occurring more days than not for at least six months, about a number of events or activities…”. Certainly, feeling stressed, nervous and/or anxious only on one day does not fulfill Criterion A for the diagnosis of GAD according to the DSM-5. I take notice of these facts pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22.

27Taking into consideration the totality of the above, I find that the Registrar has not established on a balance of probabilities that the appellant suffers from anxiety disorder.

28Accordingly, having found on a balance of probabilities that the answer to the first of two questions I need to address is ‘no’, it is not necessary to consider whether the appellant’s alleged medical condition is likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.

Conclusion

29I find that the Registrar has not discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.

ORDER

30For the reasons set out above, pursuant to subsection 50(2) of the Act, I set aside the Registrar’s decision to suspend the appellant’s driver’s licence.