Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7231/MED
CASE NAME: 7231 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
7231 Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: D. Ian Turnbull, MD
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Kyle Biel
Heard in Toronto, ON: March 13, 2012
DECISION AND REASONS
This is an appeal to the Licence Appeal 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").
The following documents were made exhibits at the hearing:
- Notice of Suspension – January 5, 2012 – Registrar
- Notice of Appeal – Medical – February 7, 2012 – Applicant
- Tabbed Submission (1-8) – February 22, 2012 – Registrar
FACTS
The Applicant is a 39-year-old businessman who had a benign tumour removed from behind his right eye on October 28, 2011.
In the immediate post-operative period, he had two witnessed seizures. His neurosurgeon reported to the Registrar pursuant to Section 203 of the HTA on November 7, 2011 (Exhibit 3, Tab 1).
On January 5, 2012, the Registrar suspended the Applicant's driving privileges effective January 15, 2012 (Exhibit 1) and requested medical information (Exhibit 3, Tab 2) regarding the tumour and his seizures.
Currently, the Applicant is seizure-free, taking Dilantin 300 mg daily. A follow-up CAT (computerized axial tomography) scan did not show "residual intraparenchymal pathology." Plans are to be followed by both the neurologist and neurosurgeon for possible "radiation therapy for residual peri-orbital disease."
The Applicant feels "fantastic". He has quit smoking and put on some weight. He needs his driving privileges restored because of his multiple, widespread businesses.
The Applicant sent a Notice of Appeal (Exhibit 2) February 7, 2012.
His driving record shows no demerit points.
Post-operatively, the Applicant has been followed by both his neurosurgeon (Exhibit 3, Tab 4a) and neurologist (Exhibit 3, Tab 3).
ISSUES
Should the decision of the Registrar to suspend the Applicant's licence be confirmed, modified or set aside?
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:
50 (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 finds the Registrar has not shown that the Applicant's driving privileges should remain suspended.
The Registrar maintains there should be no consideration of restoration of the Applicant's driving privileges until he has been seizure-free for 12 months, i.e. November 1, 2012.
The Registrar cites (Exhibit 3, Tab 7), the 7th edition of the Canadian Medical Association (CMA) Driver's Guide – "Determining Medical Fitness to Operate Motor Vehicles".
Referring specifically to Page 44, Section 10.8.1 Benign Tumours:
If a patient's cognitive function, judgement, coordination, visual fields, sense of balance, motor power and reflexes are all found to be normal after the removal of a benign intracranial tumour, there is usually no reason to recommend any permanent driving restrictions.
If a seizure occurred either before or after the removal of a tumour, the patient should be seizure free for at least 12 months, with or without medication, before resuming driving.
Significantly, the Canadian Council of Motor Transport Administration (CCMTA), (Exhibit 3, Tab 7) makes no specific recommendation of a seizure-free period following removal of a benign "brain" tumour.
The Applicant is a credible witness. He wants to do the right thing for himself, his family and the driving public. The Applicant is compliant with medical advice and additional testing.
At the time of the Appeal, it became apparent that there were significant medical reports and imminent physician consultations which the Tribunal wanted to review and consider before making its final decision.
The Registrar and the Applicant were contacted by letter March 20, 2012 regarding receipt of additional medical information.
These reports are as follows:
The Applicant had an MRI on March 6, 2012 which showed "post-operative appearances. Study serves as baseline for future follow-up."
A follow-up visit, March 26, 2012, with the Neurosurgeon states "he has no evidence of a residual brain lesion and therefore I think the risk of any seizure would be very low."
The Applicant's neurologist in a letter dated April 11, 2012 states "that the Applicant has completed an EEG on April 2, 2012 which was normal."
The Tribunal considers the two seizures in the immediate post-operative period to be related to the extended neurosurgery. The Tribunal takes particular note of the fact that both the Applicant's neurologist and neurosurgeon are "neutral" as to restoration of the Applicant's driving privileges, although both feel that the risk of recurrent seizure activity is minimal.
Regarding O. Reg 340/94, Section 14(a), the Tribunal finds on a balance of probabilities the Applicant "does not 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."
Having reviewed all the evidence and submissions, the Tribunal is satisfied the Applicant need not wait an additional four months before restoration of his driving privileges.
DECISION
Upon the application by the Applicant to appeal the decision dated January 5, 2012 of the Registrar 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 set aside as above.
LICENCE APPEAL TRIBUNAL
D. Ian Turnbull, MD, Presiding Member
RELEASED: April 16, 2012