Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2012-03-21
FILE:
7236/MED
CASE NAME:
7236 v. Registrar of Motor Vehicles
Appeal under section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a Decision of the Registrar of Motor Vehicles pursuant to section 47(1) of that Act - to Appeal a Suspended Licence
Applicant
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Patrick Coffey, M.D., Member
APPEARANCES:
For the Applicant:
Applicant
For the Respondent:
Kyle Biel, Agent representing the Registrar of Motor Vehicles
Heard by teleconference on:
March 15, 2012
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Applicant respecting a decision of the Registrar of Motor Vehicles (the “Registrar”) pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
FACTS
The Registrar’s Evidence
Dr. L. sent a Medical Condition Report concerning the Applicant to the Ministry of Transportation of Ontario (“MTO”) on November 24, 2011. In this, the doctor wrote “Seizure-Cerebral” as the pertinent condition, and it was added:
Currently undergoing investigations for possible seizure disorder. Last episode November 11, 2011. Advised not to drive. Referred to neurologist Dr. T.
When MTO received this report, it was decided that the driving privilege of the Applicant should be suspended.
The Certified Driver Record for the Applicant showed no convictions, discharges or other actions. The demerit points were zero.
The Applicant’s Evidence
The Applicant testified that she has been having these spells or “blackouts” for about three years and the last one was about a year and a half ago. She was then asked why it was that in the Medical Condition Report of November 24, 2011 it was written that she suffered a possible seizure on November 11, 2011. She explained that a few days before this date she was not eating and felt dizzy and weak, culminating in what she felt was just a faint.
The Applicant was asked if, during these spells, she loses consciousness. She replied, “Yes”. She was also asked if she experiences a warning before a spell comes on. She replied affirmatively to this as well. She said that what fairly often happens is that she feels she is going into a “black tunnel”, and then she blacks out. After blacking out, she tends to walk about the house or even outside before the spell is finished. She said that stress tends to start these spells.
The Applicant said that there is no confirmation that these are epileptic episodes or seizures. EEG and CT testing have been completely negative and all medication she has been taking has had no effect except to give her side effects. She decided to see another neurologist, and on March 2, 2012, she saw Dr. B. This neurologist told her that, in his opinion, these spells are not epileptic in nature and he advised her to stop the medication.
The Evidence of the Applicant’s Witness
The Witness, Mrs. R. (mother of the Applicant), testified that the Applicant has suffered from migraines in the past. She said that, in spite of many tests, there is no conclusive evidence that the Applicant suffers from epilepsy. She expressed the opinion that, in the absence of a definite diagnosis, the Applicant should not lose her licence, especially since she is aware when a spell is going to come on.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
Does the Applicant suffer from a mental, emotional, nervous or physical disability likely to significantly interfere with her ability to drive a motor vehicle safely?
LAW
O. Reg. 340/94, section 14 states:
(1) An applicant for or a holder of a driver’s licence must not,
(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely; or
(b) be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.
(2) In determining whether an applicant for or a holder of a driver’s licence of any class meets the qualifications described in subsection (1), the Minister,
(a) may take into consideration the relevant medical standards for applicants or holders of that class of driver’s licence set out in the CCMTA Medical Standards for Drivers; and
(b) may require the applicant or holder to provide evidence satisfactory to the Minister that he or she is able to drive a motor vehicle of the applicable class safely, including,
(i) any reports of examinations under section 15, and
(ii) any additional medical information.
(3) Despite clause (2) (a) and unless otherwise provided in this Regulation, if there is a difference between a medical standard set out in the CCMTA Medical Standards for Drivers and a medical standard set out in this Regulation, the Minister shall take into consideration the standard set out in this Regulation instead of the standard set out in the CCMTA Medical Standards for Drivers.
(4) In this section, the CCMTA Medical Standards for Drivers means the document entitled CCMTA Medical Standards for Drivers, published by the Canadian Council of Motor Transport Administrators and dated March 2009, as it may be amended from time to time, that is available on the Internet through the website of the Canadian Council of Motor Transport Administrators.
Section 47(1) states:
Subject to section 47.1, the Registrar may suspend or cancel,
(b) a driver’s licence; …
on the grounds of,
(d) misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a motor vehicle;
(e) conviction of the holder for an offence referred to in subsection 210(1) or (2);
(f) the Registrar having reason to believe, having regard to the safety record of the holder or of a person related to the holder, and any other information that the Registrar considers relevant, that the holder will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety; or
(g) any other sufficient reason not referred to in clause (d), (e) or (f).
Section 50 of the Act states:
- (1) Every person aggrieved by a decision of the Minister made under subsection 32(5) for which there is a right of appeal pursuant to a regulation made under clause 32 (14) (n) or a decision of the Registrar under section 17 or 47 may appeal the decision to the Tribunal.
(2) The Tribunal may confirm, modify or set aside the decision of the Minister or the Registrar.
APPLICATION OF THE LAW TO FACTS
The Tribunal notes that there are no medical reports from a neurologist on file, an essential requirement before a valid assessment can be made. However, from the evidence of the Applicant and the Applicant’s Witness, the Tribunal has been able to glean the fact that the Applicant has suffered “spells” which, although not yet given a medical name, constitute a possible risk to driving, sufficient for the Tribunal to determine that the Applicant’s licence should remain suspended.
DECISION
Upon the application by the Applicant to appeal the Registrar’s decision, effective December 12, 2011, to suspend her driver’s licence pursuant to section 47(1) of the Act, and having considered the evidence filed with the Tribunal, and the submissions of the Registrar and of the Applicant;
IT IS THE DECISION OF THE TRIBUNAL pursuant to the authority vested in it under section 50(2) of the Act that the decision of the Registrar be confirmed.
LICENCE APPEAL TRIBUNAL
Patrick Coffey, M.D., Member
RELEASED: March 21, 2012