7426 v. Registrar of Motor Vehicles, 2012 CanLII 40331

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2012-06-28

FILE:

7426/MED

CASE NAME:

7426 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:

D. Ian Turnbull, MD

APPEARANCES:

For the Applicants:

Applicant, Self-represented

For the Respondent:

Russell McKnight,

Agent, Representing the Registrar of Motor Vehicles

Heard in Toronto, Ontario:

June 19, 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”).

INTRODUCTION

The Applicant is a retired 70-year-old executive with a long and complicated medical history. From December 15, 2011 until January 17, 2012, he was in hospital for septic shock.

Eleven of those days were spent in the Intensive Care Unit (ICU), he lost 48 pounds in weight and appeared “confused” to the hospital staff. The Applicant was shocked to receive a Letter of Suspension (Exhibit 1) dated April 16, 2012.

The Applicant filed a Notice of Appeal (Exhibit 2) dated May 25, 2012, including 19 selected pages from his hospital chart, between December 15, 2011 and January 17, 2012.

An in-person hearing was scheduled for June 19, 2012.

EXHIBITS

1. Notice of Suspension of Driver’s Licence – dated April 16, 2012 (effective April 26, 2012).
2. Notice of Appeal – Medical - Applicant – dated May 25, 2012.
3. Tabbed Submissions (1-9) – Registrar – dated June 5, 2012.
4. “To Whom it May Concern” letter – Applicant - dated June 8, 2012.

Preliminary Matters

At the time of Introduction of the Exhibits, it was apparent the medical information requested by the Registrar (Exhibit 3, Tab 7) had been received by the Licence Appeal Tribunal (LAT) May 29, 2012, and not received by the Registrar. The Hearing Agent for the Registrar explained the Medical Review Committee process ordinarily took six-to-eight weeks. The Hearing Agent said he was unaware of these documents and was in no position to evaluate that information. The Applicant responded that he needed his driving privileges restored as soon as possible for personal reasons and preferred to proceed with the hearing. The Registrar’s representative agreed to proceed.

FACTS

1. At the time of hospital discharge, a physician (January 17, 2012) reported the Applicant to the Registrar (Exhibit 3, Tab 6) pursuant to Section 203 of the Highway Traffic Act (HTA) citing “dementia or Alzheimer’s.”
2. The 70-year-old Applicant survived a 32-day hospitalization from mid-December 2011 until mid-January 2012 for septic shock. The source of the sepsis was presumed to be ischemic colitis.
3. More than one professional was concerned about possible “cognitive impairment”.

On January 8, 2012, a physician was consulted because of “confusion”. Hospital staff felt the Applicant was “partly frustrated and depressed” and “will not really comply with much cognitive testing”.

The Consultant said it was unclear as to whether the Applicant “is going to have ongoing cognitive defects”. He recommended that the Applicant not drive until two months after discharge. He further suggested that period could be shortened to three-to-four weeks “if cognitive testing was repeated.” The Applicant says cognitive testing was not repeated.

The physician who completed the Medical Condition Report recommended a driving test reassessment before restoring driving privileges (Exhibit 3, Tab 6).

4. The Applicant adamantly refutes their comments about his ability to drive safely saying the physicians were only repeating what a therapist said. The Applicant states the therapist is “not a doctor”, repeatedly says she was “pushy.”
5. The Applicant even challenges his Notice of Appeal dated May 19 (the document says May 25) and ….. other than confirming his signature, the rest is “not his writing”.
6. The Registrar did not receive Exhibit 4, dated June 11, 2012 and (received by LAT on June 12, 2012). This is a June 8, 2012 letter from the Applicant’s new family doctor addressed to “Whom it May Concern”.
7. The Applicant’s driving record shows no demerit points (Exhibit 3, Tab 8).

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 his or 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 ….

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 Registrar has made the case that the Applicant’s driving privileges should remain suspended until his medical evidence requested (Exhibit 3, Tab 7) has been evaluated by the Medical Review Committee of the MTO.

The medical information to be reviewed consists of the 19 pages selected from his recent hospital admission received by LAT with his Notice of Appeal (Exhibit 2) on May 29, 2012 and Exhibit 4 from his new family physician.

Neither of these pieces of medical information reached the Registrar before the hearing date; both were received by LAT. The Tribunal recognizes the reassessment may have precluded the hearing, if the 19 pages of medical information from his recent hospitalization had also been received by the Medical Review Committee of the Registrar.

The Tribunal hears the Applicant’s frustrations with many facets of his hospital stay. However, they do not supersede the genuine concern of hospital staff over his cognitive abilities, episodes of confusion and how they might affect his ability to operate a motor vehicle safely. The Applicant challenges all of the hospital staff assessments.

The Tribunal believes the recommendation made in Exhibit 3, Tab 6 is a reasonable one, i.e. reassess the Applicant’s driving ability.

Regrettably, the Applicant’s family physician for 37 years died this spring. The Applicant supplies a “To Whom it May Concern” letter (Exhibit 4) from his new doctor, who has seen the Applicant “a handful of times in the past two months”. The new family doctor’s recommendations are based on “The Applicant has explained to me.” The Applicant says this new physician saw neither the 19 pages of hospital records, nor his records of his former physician.

Valid hospital staff concerns over the Applicant’s altered cognitive state require medical information to be provided to the Medical Review Committee of the Registrar before consideration of restoring his driving privileges.

To counter this evidence, the Applicant only has his assertions that he is safe to drive and his driving record.

In the interest of public safety and that of the Applicant, the Tribunal concludes it is not unreasonable for the Applicant to provide the requested medical information (Exhibit 3, Tab 7) about improvement in his cognitive function before consideration of restoration of his driving privileges.

Having reviewed all the evidence and submissions, the Tribunal finds on balance of probability the Registrar acted properly in maintaining suspension of the Applicant’s driving privileges (Exhibit 1).

DECISION

Upon the application by the Applicant to appeal the decision dated April 26, 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 confirmed.

LICENCE APPEAL TRIBUNAL

D. Ian Turnbull, MD, Presiding Member

RELEASED: June 28, 2012