Licence Appeal Tribunal
Tribunal d'appel en matière de permis
FILE: 7244/MED
CASE NAME: 7244 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 in Toronto: March 20, 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
Neurologist Dr. M. wrote to the Applicant’s family physician, Dr. P., on August 11, 2004. In this report, he said, in part, that he saw the Applicant, in follow up, in his clinic and that he had had no further seizures. The seizure that he did have was witnessed in the emergency room. Dr. M. later stated in his report, “Curiously, he had had a prior car accident that was similar from which he had little memory and may have represented a third possible seizure”.
The doctor found the physical examination unremarkable. He started the Applicant on Dilantin medication. In summary, he wrote, “Mr. <Applicant’s name> probably had 3 seizures. These are idiopathic in nature”.
The Ministry of Transportation of Ontario (“MTO”) wrote to the Applicant on November 26, 2004, informing him that, in view of a report submitted by a physician “an official notice of suspension will be mailed to you”.
Neurologist Dr. M. wrote to MTO on August 10, 2005. In this report, he stated that the Applicant had been seizure-free for at least a year while on Dilantin therapy and that he had been seeing him, (the doctor), regularly. Finally, the doctor wrote, “I think consideration of reinstating driving privileges while on medication is appropriate”.
The MTO wrote to the Applicant on September 15, 2005, informing him that “A notice of reinstatement will be mailed to you”.
Internal Medicine specialist Dr. H. sent a Medical Condition Report to MTO regarding the Applicant on February 23, 2009. The condition that the doctor wrote in this report was “Seizure-Cerebral”.
On May 7, 2009, MTO wrote to the Applicant informing him that it had been decided to suspend his licence.
Neurologist Dr. P. wrote to MTO on March 6, 2010. The doctor described the medical history of the Applicant, noting that the Applicant had “gone over one year without a seizure” and expressed the opinion that, “He fulfills the necessary criteria to return to driving at this time”.
The MTO wrote to the Applicant on March 19, 2010, informing him that it had been decided that his licence should be reinstated.
Dr. P., the family physician of the Applicant, sent in a Medical Condition Report concerning the Applicant on December 20, 2011. In this, he wrote, as the pertinent condition, “Seizure-Cerebral”. He also wrote:
Recurrent seizures, despite being on medications. Known epileptic, being followed up by neurologist, Dr. P.
The MTO wrote to the Applicant on January 31, 2012, informing him that it had been decided that his licence should be suspended.
The Certified Driver Record for the Applicant, dated March 1, 2012, included the following:
July 3, 2009 Speeding 69 KMH in 40 KMH zone.
September 14, 2009 Suspended re: Unpaid Fine.
October 14, 2011 Shall not drv holding or using a hand-held com dev.
January 24, 2012 No validation on plate.
Current demerit points – zero.
The Applicant’s Evidence
The Applicant described what happened on December 15, 2011. While driving, he took a sip of coffee and the coffee went down the wrong pipe and he started to choke and cough. While coughing, he lost control of his car. It veered to the right, went up and over a curb and then hit a fence. He then hit his right temple on the steering wheel and blacked out.
A pedestrian saw the accident and called the police. The police and an ambulance arrived. The paramedics found a large bump on the Applicant’s head but decided that he did not need to be taken to the hospital.
When the police checked the Applicant’s licence, they noticed that he had been suspended before, due to seizures and suggested that he had had another one. The Applicant explained that he did not have a seizure; all he had was a bump on his head and some minor dizziness from hitting his head on the steering wheel. He informed the police officer that he remembered everything up to the point of impact, with no disorientation upon gaining consciousness, which is a key symptom after a seizure.
The next day, the Applicant saw his neurologist because he wanted there to be some sort of record stating that, during this accident he had not bitten his tongue nor had any seizure symptoms. He has been seeing his neurologist religiously every three months.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
Does the Applicant no longer suffer from a mental, emotional, nervous or physical disability likely to significantly interfere with his 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 the Applicant suffered a seizure in 2004 (suspended on November 26, 2004), and another seizure in 2009 (suspended on May 7, 2009). Also, the Tribunal notes that in the medical report of neurologist Dr. P., dated March 6, 2010, the doctor reported a “seizure-like episode” witnessed in 2002.
The Tribunal also notes that there is evidence from the file that the Applicant may have had other car accidents associated with seizures, as described in the report from neurologist, Dr. M., dated August 11, 2004.
The Applicant was involved in a car accident on December 15, 2011, and lost consciousness. The Applicant has expressed the opinion that this loss of consciousness was due to his head injury and not a seizure. The Applicant’s family physician, Dr. P. (who has been his physician for seven years), examined the Applicant on December 20, 2011 (five days after the accident), and wrote “Seizure-Cerebral” as the pertinent condition. He added in this report, “Recurrent seizures, despite being on medications”.
The Tribunal is more inclined to believe that a seizure was implicated in the accident of December 15, 2011 than not, for the following reasons:
The Applicant’s family physician is of the opinion that a seizure was implicated in the accident (Report of December 20, 2011).
There is evidence that the Applicant may have had other car accidents associated with seizures as well as the ones reported as having occurred in 2004 and 2009 (Report of Dr. M., August 11, 2004).
The unusual occurrence of choking on a sip of coffee and then losing control of the car without any other concurrent factors, such as epilepsy.
DECISION
Upon the application by the Applicant to appeal the Registrar’s decision, effective February 10, 2012, to suspend his 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 29, 2012