Licence Appeal Tribunal File Number: 16002/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:

Michael Brochert

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATORS:

Dr. Dimitri Louvish, Member

Colin Osterberg, Vice-Chair

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Ian Sookram, Representative

HEARD: July 18, 2024

OVERVIEW

1Michael Brochert (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (“Registrar”) 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 treating health care provider that the appellant suffers from a medical condition that may affect their ability to drive 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 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 attention deficit hyperactivity disorder (“ADHD”), 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.

4The 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.

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 their ability to drive a motor vehicle safely.

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

i. Does the appellant suffer from ADHD?

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

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

RESULT

9Having considered all the evidence and submissions and for the reasons that follow, we 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 safely and we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from attention deficit hyperactivity disorder?

10The evidence presented at the hearing does not establish that the appellant suffers from a medical condition, namely ADHD.

11The Registrar relies on the Cognitive Disorder Form dated May 21, 2024 submitted by Dr. Priyanki Sivanantharajah, General Practitioner, in support of its position that the appellant suffers from ADHD.

12The appellant denies he has ADHD and relies on the above Cognitive Disorder Form, as well as reports from Dr. Sivanantharajah dated June 21, 2024 and July 15, 2024.

13In the Cognitive Disorder Form, Dr. Sivanantharajah states that:

I suspect that he has ADHD with concurrent mood disorder that skews standardized tests done for cognitive assessments. I recommend further evaluation for ADHD assessment but I have no concerns about his driving ability.

14Dr. Sivanantharajah, in the Cognitive Disorder Form does not diagnose ADHD or any other condition which might impact the appellant’s ability to drive. The Registrar admits that ADHD was not a diagnosis made by Dr. Sivanantharajah but was expressed as a suspicion to explain a previous medical presentation.

15Dr. Sivanantharajah, in his report dated June 21, 2024 states that ADHD is a “possible diagnosis” which may have impacted the appellant’s communication style which in turn may have contributed to his licence being revoked. He reiterates that he has no concerns with regard to the appellant’s ability to drive. He states that the suggestion for an ADHD evaluation which was made in the Cognitive Disorder Form was independent of the appellant’s ability to drive.

16In his July 15, 2024 report, Dr. Sivanantharajah again states that the appellant is fit to drive and that he is unable to confirm or deny any specific diagnosis including ADHD. He also states that an ADHD/mental health assessment is not currently necessary for the appellant to drive safely.

17The Registrar admits that there has been no medical condition that has been diagnosed and supports that the appellant does not have any medical condition which impairs his ability to drive safely.

18We find that the Registrar has not established on a balance of probabilities that the appellant suffers from the medical condition alleged.

19Given that the Registrar failed to establish the alleged medical condition, there is no need to determine whether that condition significantly interferes with the appellant’s ability to drive.

Conclusion

20We 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 safely.

ORDER

21For the reasons set out above, pursuant to subsection 50(2) of the Act, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

Released: July 22, 2024

__________________________

Dimitri Louvish

Adjudicator

__________________________

Colin Osterberg

Vice-Chair