Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7563/MED
CASE NAME: 7563 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 Applicant: Self-represented
For the Respondent: Sonia de Santis, Agent
Heard in Toronto: August 27, 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”).
BACKGROUND
The 46-year-old Applicant needed a rest while travelling in the left lane of Canada’s busiest highway on April 15, 2012. He decided it was safer to stop on the right shoulder. The attending Ontario Provincial Police (“OPP”) officer “was advised by witnesses” the Applicant’s vehicle “swerved hard across both lanes and entered the right ditch” (Exhibit 3, Tab 1).
Witnesses also advised the officer that the Applicant did not respond for two minutes when they rapped on the driver’s window. The OPP officer summoned an ambulance to take him to a local hospital. The Applicant left hospital hours later and completed his trip without incident. The OPP faxed a request for “Driver’s Licence Review” to the Registrar dated May 1, 2012 (Exhibit 3, Tab 1).
The Registrar sent a letter (Exhibit 1) dated July 3, 2012, suspending his driver’s licence asking for information to be sent to the Medical Review Section regarding a possible syncope/ loss of consciousness episode.
The Applicant sent a Notice of Appeal (Exhibit 2) dated August 8, 2012, including an attached sworn affidavit dated August 7, 2012.
EXHIBITS
- Original Letter of Suspension dated July 3, 2012 - Registrar
- Notice of Appeal dated August 8, 2012 - Applicant
- Tabbed Submission (1-12) dated August 16, 2012 - Registrar
FACTS
The Applicant is a 46-year-old executive who was returning from an out-of-province combined religious holiday/ family reunion. He got little sleep over two nights and claims he was dehydrated. He was stressed because his wife could not attend and his extended family were seemingly unconcerned over her absence. Feeling unwell because of many factors (big meal, tired [two sleepless nights], hot day, dehydration), he had to pull over.
The car was not damaged (Exhibit 3, Tab 1). The engine was turned off and the vehicle was facing in the correct direction. When he stopped the vehicle on the slope of the ditch, he claims he decided to relax and get some sleep.
The Applicant is adamant he did not “black out” and nor was he unresponsive for two minutes. The Applicant had a single syncopal episode about 10 years ago, shortly after donating a pint of blood.
The Registrar suspended the Applicant’s driving privileges in a letter dated July 3, 2012 (Exhibit 1), asking for medical information to be sent to its Medical Review Committee.
In a letter dated August 13, 2012 (Exhibit 3, Tab 6), the Registrar repeated the request for medical information to be sent to the Medical Review Committee. The letter says “test results” have been filed in response to the initial letter, but there is no clinical note from the Applicant’s physician.
The Applicant’s driving record (Exhibit 3, Tab 7) shows no demerit points.
The Medical Review Committee of the Registrar has not yet received a clinical note from his physician.
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 has determined that the decision of the Registrar should be set aside.
The Registrar acted correctly in asking for medical information (Exhibit 1 - dated July 3, 2012) pursuant to a faxed request from the OPP for Driver’s Licence Review, dated May 1, 2012 (Exhibit 3, Tab 1).
Responding to the Applicant’s request for consideration of restoration of his driving privileges dated July 30, 2012 (Exhibit 3, Tab 3), the Registrar correctly requested the request for complete medical information in a letter dated August 6, 2012 (Exhibit 3, Tab 6).
The Tribunal has difficulty assessing the April 15, 2012, episode on the highway. The Applicant states the observations of the witnesses “are, for the most part, accurate” regarding the driving manoeuvre.
There is reasonable speculation to what happened when the car stopped. Once parked on the right side, albeit in the ditch, he either fell asleep briefly or possibly blacked out. When passers-by rapped on his car window, he says he was anxious, frightful, startled, hyperventilated and may have had a panic attack (Exhibit 2). He disagrees he was unresponsive for as long as two minutes. He consistently says the manoeuvre to get to the right shoulder was “deliberately planned and executed” to make a safer stop.
In retrospect, both the attempt to drive home while feeling unwell (both mentally and physically) and the deliberate move to park in a safer position at the roadside were poor decisions. Either the Applicant or fellow travellers may have had to deal with a far more serious situation.
The lack of a clinical note from the Applicant’s physician is puzzling. Some investigation was done (Hematology, Biochemistry, Echocardiogram and Electrocardiogram). The Applicant declined a CAT (Computerized Axial Tomography) scan of his head because of concern about irradiation and the cost to the heath care system. The Tribunal is unsure whether imaging of the head is a requirement of a neurologic investigation. It is not specifically identified in Exhibit 3, Tab 8, Page 22, Paragraph 6.2:
Individuals subject to loss of consciousness due to Stokes-Adams attacks or other cardiac arrhythmias may not be considered for any class of licence until the underlying cardiac condition has been corrected, and should be reviewed after one year. The individual with a single unexplained episode of loss of consciousness or awareness may be allowed to operate any motor vehicle provided the individual is investigated and the condition felt to be benign. The person who has suffered more than one syncopal episode should not operate any motor vehicle until the cause of the episodes has been determined and successful corrective measures taken. A history of vasovagal syncope in adolescents is not felt to constitute a driving hazard.
According to the Applicant, his physician responds to his repeated requests for a clinical note by claiming “to be busy” or “I wasn’t there” or “it’s over”. In response to a suggestion from the Applicant about being subpoenaed, the Applicant claims the physician declined because of concerns about payment.
The Registrar maintains the Applicant’s driving privileges should remain suspended relying on Exhibit 3, Tab 8, CCMTA (Canadian Council of Motor Transport Administration) - “Medical Standards for Drivers”, Page 22, Diseases of the Nervous System, Paragraph 6.2 Syncope (Unexpected Loss of Consciousness or Awareness).
STANDARD: Single unexplained episode – may operate a Class 5 or 6 vehicle after 1 month or a Class 1, 2, 3 vehicle after 3 months provided there is no obvious cardiac or neurologic cause.
The Tribunal believes the Applicant had a “single, unexplained episode”, cause unknown. Over four months have passed without incident.
The Applicant is a credible witness and despite his powers of persuasion has been unable to convince his physician to supply a clinical note for consideration by the Registrar.
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;
The Tribunal is mindful of the safety of both the Applicant and the driving public. However, the Tribunal feels the circumstances surrounding the April 15, 2012 incident are not clear-cut. The response of the Applicant’s physician is unique in this Tribunal’s experience; the physician will not even comment on the investigation already done.
The Applicant is credible and consistent in his oral testimony, sworn affidavit of August 7, 2012 (Exhibit 2) and his letter of July 30, 2012 (Exhibit 3, Tab 3). The Applicant’s version of a weekend celebration out-of-town and his physical and medical unwellness is a reasonable and probable explanation for his poor decision-making behind the wheel on April 15, 2012.
DECISION
Having heard and carefully weighed all the evidence and examined the exhibits filed, the Tribunal has decided that the Applicant’s driving privileges should be restored, and the decision of the Registrar be set aside.
Upon the application by the Applicant to appeal the decision dated July 4, 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 set aside.
LICENCE APPEAL TRIBUNAL
D. Ian Turnbull, Presiding Member
RELEASED: September 6, 2012