Licence Appeal Tribunal File Number 15950/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:

Craig Davey

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Dr. Erica Weinberg

APPEARANCES:

For the Appellant: Craig Davey, Appellant Nicole Guerrero, Appellant’s wife and Representative

For the Respondent: Sharon Nelson, Representative

HEARD by teleconference: August 20, 2024

OVERVIEW

1Craig Davey (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 safety to drive.

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 a mental health condition, 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 acknowledge that they are a person living with a mental health condition but deny that they are a person living with 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, I will address the following questions:

i. Is the appellant a person living with a mental health condition?

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, 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 their ability to drive a motor vehicle safely and I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Is the appellant a person living with a mental health condition?

10The evidence presented at the hearing establishes, on a balance of probabilities, that the appellant is a person living with a mental health condition, namely bipolar disorder.

11The Registrar’s position is supported by medical reports completed by Dr. Alkhudhair and Dr. Cunic.

12In a March 12, 2024 Medical Condition Report (“MCR”), Dr. Alkhudhair checked off that the appellant was suffering from a psychiatric (mental health) illness due to: manic episode with psychotic features and suicidal ideation without [a] clear plan.

13As a duly qualified physician in the province of Ontario, I know that bipolar disorder, formerly called manic depression, is a mental health condition that causes extreme mood swings, including emotional highs (mania), less extreme highs (hypomania), and lows (depression). I take notice of these facts pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

14In a July 25, 2024 Mental Health Disorder form, Dr. Cunic, the appellant’s family physician for the past two and one-half years, checked off that the appellant’s primary mental illness is bipolar disorder.

15The appellant acknowledged that they are a person living with a mental health condition, specifically bipolar disorder.

16I find that the Registrar has established on a balance of probabilities that the appellant is a person living with a mental health condition.

Is the appellant’s mental health condition likely to significantly interfere with their ability to drive a motor vehicle safely?

17I find that the Registrar has proven, on a balance of probabilities, that the appellant’s medical condition, specifically a mental health condition, is likely to significantly interfere with their ability to drive a motor vehicle of the appropriate class safely.

18The Registrar’s representative stated that a mental health condition, such as bipolar disorder, can and will interfere with a driver’s ability to drive safely and presents a safety risk to other road users. They further stated that in order to consider reinstatement of the appellant’s driver’s licence, they require confirmation of a minimum of a six-month period of mental and emotional stability.

19Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”), when determining whether the requirements of s. 14(1) are met. The Tribunal may take the CCMTA Standards into consideration, although they are not binding on the Tribunal.

20The Registrar relies on the CCMTA Standards, in particular Chapter 14.6.1 (Psychiatric disorder – All drivers) and internal policies at the Ministry of Transportation. Chapter 14.6.1 provides that all drivers suffering from psychiatric (mental health) disorders are 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, for drivers who have stopped driving due to a psychiatric disorder.

21The Registrar’s representative acknowledged that this CCMTA Standard does not provide a specific time frame for mental and emotional stability prior to re-instatement of a driver’s licence. They stated that an internal policy at the Ministry of Transportation requires that individuals who have had two or more hospitalizations due to a mental health condition in the past 12 months must demonstrate a six-month period of mental and emotional stability prior to consideration of the re-instatement of their driver’s licence. Furthermore, the respondent’s representative stated that in the completed Mental Health Disorder form, Dr. Cunic wrote that the appellant had two admissions to hospital in the past 12 months and checked off that the appellant’s condition has remained stable for less than three months.

22Moreover, the respondent’s representative referred to Dr. Alkhudhair’s comments in the MCR which stated, “…with reports of driving erratically and over the speed limit over the past few days…”

23The appellant testified that their mental health condition does not affect their ability to drive safely and stated that, in the July 25, 2024 Mental Health Disorder form, Dr. Cunic checked off that they: currently have no symptoms; do not have any difficulties in cognition, attention or memory; do not have any difficulties with judgement; are adherent to the recommended treatment regimen; do not demonstrate any pattern of non-adherence; are under regular medical supervision; and have appropriate insight/sufficient understanding of their medical condition and the impacts on their functional ability to drive.

24The appellant testified that they have had four admissions to hospital for their mental health, one in: the 1990’s; 2013 or 2014; March, 2024; and June, 2024.

25In addition, the appellant testified that they had been prescribed and taken Lithium for their bipolar disorder in the past. The appellant stated that they: initially stopped taking Lithium about five years ago; restarted Lithium at some point while under Dr. Cunic’s care; stopped taking Lithium again about one year ago; and restarted Lithium again on July 9, 2024 around or at the time of their discharge from hospital. The appellant stated that they are currently on the same dose of Lithium that they were one year ago and that recent blood testing has confirmed that they are at an appropriate dosage. I know that Lithium is a mood stabilizing medication that helps reduce the severity and frequency of manic episodes. I take notice of these facts pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

26The appellant testified that they now know that on March 12, 2024, police arrived at their home with an order from a Justice of the Peace to take the appellant to hospital for a psychiatric assessment under the Mental Health Act R.S.O 1990, c.M7 (the “MHA”).

27The appellant denies meeting Dr. Alkhudhair or being examined by Dr. Alkhudhair on March 12, 2024 at the hospital.

28Furthermore, the appellant stated that they do not know where Dr. Alkhudhair’s statement regarding driving erratically and over the speed limit came from and the comments have not been substantiated by the respondent.

29Moreover, the appellant testified that they stopped driving one week prior to their involuntary admission to hospital on March 12, 2024 as they were recovering from an injury to their left foot. The appellant stated that although they normally use their right foot for braking, they also use their left foot for emergency braking on occasion and they would have been hesitant to drive with a sore left foot. The appellant testified that they did not seek medical attention for the injury to their left foot.

30The appellant testified that during their March 2024 hospitalization (March 12-March 27, 2024), they were held involuntarily under the MHA and they were discharged with no medications or follow-up appointments.

31I note that the appellant submitted only part of the discharge summary from this hospital admission and under ‘new prescriptions’, there were three sections redacted or blacked out.

32Regarding their June 9, 2024 admission to hospital, the appellant stated that: police arrived at their home; they were taken to the same hospital under the MHA; they were held involuntarily; their hospital stay was approximately four weeks under a different psychiatrist; their mental health improved/started to stabilize prior to discharge; and they started taking Lithium just prior to, or after, discharge.

33For the following reasons, I find, on a balance of probabilities, that the appellant was examined by Dr. Alkhudhair in March 2024, at the hospital in question. My findings are grounded in the following:

i. in the MCR, Dr. Alkhudhair wrote that they were ‘psychiatry on-call’;

ii. Dr. Alkhudhair, having received what they considered reliable evidence with respect to safety concerns regarding the appellant’s driving, would have been required by s. 203 of the HTA to submit the MCR;

iii. the MCR itself shows that it was faxed to the Ministry of Transportation from the emergency room (“ER”) of the hospital in question;

iv. s. 18 of the MHA states that an examination under s. 16 (Form 2) of the MHA shall be conducted by a physician forthwith after receipt of the person at the place of examination and where practicable, the place shall be a psychiatric facility or other health facility;

v. I know that a psychiatric examination as the one stated above, does not need to include a formal lengthy physical examination of a person/patient; and

vi. I find it logical that Dr. Alkhudhair, a physician who identified themselves as ‘psychiatry on-call’ in the completed MCR, would be such a physician to conduct such an examination under the MHA.

34I assign less weight to the appellant’s testimony that they were not examined by Dr. Alkhudhair. When questioned whether it was possible that they did not remember meeting or being examined by Dr. Alkhudhair or a psychiatry resident due to the state of their mental health at that time, the appellant’s answers varied from: I don’t know; I don’t think so; I don’t remember; and I don’t recall.

35I acknowledge that Dr. Alkhudhair’s statement in the MCR regarding reports of the appellant driving erratically and over the speed limit over the past few days is hearsay evidence and recognize that despite having the discretion to admit hearsay evidence, tribunals must be cautious in doing so given that hearsay evidence can be inherently unreliable. However, in this case, I accept the hearsay evidence of Dr. Alkhudhair regarding the appellant’s driving. Dr. Alkhudhair was acting under their duty as the psychiatry on-call physician to assess the appellant who was brought to the ER under a Form 2 of the MHA. Furthermore, I know that it is common that physicians reach out for collateral information from family, other healthcare providers and, in this case, the police who brought the appellant to hospital under a Form 2 of the MHA.

36I assign less weight to the appellant’s testimony that they did not drive the week prior to their hospitalization due to an injury to their left foot. I find, on a balance of probabilities, that the appellant’s recollection of events leading up to their March 2024 involuntary admission to hospital is less reliable. In the MCR, not only did Dr. Alkhudhair write “manic episode with psychotic features”, Dr. Alkhudhair also wrote that the appellant, “has a 6-month history of worsening manic symptoms associated with bizarre delusions of persecution and paranoia, thoughtlessness, and increased goal directed activity”.

37While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

38Although I am not bound by the CCMTA Standards, I find them to be reasonable.

39Given the evidence, I am persuaded to apply the CCMTA Standards in the circumstances of this case.

40Chapter 14 of the CCMTA Standards indicates 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 mental health disorder. It states, “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”.

41I acknowledge that the appellant has made significant progress with regards to their insight into their condition since their last discharge from hospital, which is slightly less than two months ago, and has provided medical documentation to support that. I am also optimistic that the appellant will continue to take the prescribed Lithium going forward, as they attested to.

42However, when questioned why they stopped taking Lithium more than once in the past, the appellant stated that it was unclear if the Lithium had a therapeutic benefit and they experienced side/adverse effects that concerned them. They stated that in hindsight, they now realize that Lithium, in the past, had a therapeutic benefit, in particular for reducing their severe episodes.

43Based on the totality of the evidence and submissions before me, I find, on a balance of probabilities, that the appellant still lacks sufficient insight to stop driving if their mental health condition becomes acute, or to stop driving and report to the authority if hospitalized due to their mental health condition. The appellant testified that prior to their two recent involuntary admissions to hospital, they did not recognize in themselves any mental health symptoms of concern and did not present to the hospital on their own initiative. In addition, the appellant testified that prior to their June 2024 admission to hospital, their wife had expressed concerns to them regarding their behaviour. Moreover, as previously stated, Dr. Alkhudhair wrote in the March 2024 MCR that the appellant had mania with psychotic features and Dr. Cunic in the July 2024 Mental Health Disorder form wrote “acute episode of mania versus psychosis”. I know that mania can be associated with high-risk behaviours (e.g., high-risk driving such as driving erratically and over the speed limit), particularly if there are features of psychosis, which according to two physicians, the appellant had. I take note of this fact pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

44While Dr. Cunic’s completed Mental Health Disorder form is favourable and indicates an improvement in the appellant’s condition, I note that Dr. Cunic does not explicitly state that they support the reinstatement of the appellant’s driving privilege. The eligibility criterion in question from the CCMTA Standard specifically states, “a treating physician supports a return to driving for drivers who have stopped driving due to a psychiatric disorder”.

45I am satisfied, on a balance of probabilities, that the appellant’s medical condition is likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.

Conclusion

46I find that the Registrar has discharged the onus of establishing, on a balance of probabilities, that the appellant suffers from a mental health condition, that is likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.

ORDER

47For 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.

Released: September 9, 2024

___________________

Erica Weinberg

Adjudicator