Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
DATE:
2012-08-29
FILE:
7519/MED
CASE NAME:
7519 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:
Kevin Flynn
APPEARANCES:
For the Applicants:
self-represented
For the Respondent:
Kyle M. Biel
Agent
Heard in Ottawa:
August 17, 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”) effective March 15, 2011.
FACTS
The Respondent’s Case:
An unsolicited Medical Condition Report was completed in accordance with Section 203 of the Act, by a neurologist, Dr. D. on March 4, 2011.
The condition reported was;
Motor Function/Ability Impaired
The Registrar informed the Applicant on March 5, 2011 that it had been decided to suspend his driving privilege under Section 47(1) of the Act.
In order to be considered for reinstatement he must arrange for a detailed up-to-date report from his physician. The report must include:
- The results of all investigations, diagnosis, prognosis, current status, confirmation that the condition is controlled and that there are no other disqualifying medical concerns that may impact his ability to safely operate a motor vehicle.
He was informed that he may request an Administrative Review or may appeal the suspension to the Licence Appeal Tribunal.
A second Medical Condition Report was completed on May 3, 2012 by a Physical Medicine specialist at a Rehabilitation Centre. The condition was reported as:
Spinal Cord Injury.
(Applicant) had a spinal cord injury which has resulted in decreased function of his right hand, and he has no movement of his right shoulder. This is expected to be a permanent deficit.
A letter by the Applicant’s family physician, Dr W. dated October 24, 2011 was sent to the Registrar on behalf of the Applicant.
(Applicant’s) licence was taken away after he underwent neck & back surgery for cervical myelopathy and lumbar spinal stenosis. After his surgery he was left without right arm function. He has been progressing well at the Rehabilitation Centre under the care of Dr. W.
I am not writing to ask (for) his licence back as I feel I cannot do this.
He must take the proper steps I have recommended via the Rehab centre to find out what adaptive devices he would need; he will also need driving lessons +/- an on-road test. He is saddened as he feels he cannot afford the fees. I was wondering if someone from the MOT office could get in touch with my patient to go over what steps would need to be taken to test if he is safe on the road; and if there are any cheaper options for this medical case for suspension of driving. He is making progress and I think he might one day be safe.
As a result, the Registrar wrote to the Applicant on November 9, 2011 informing him that in order to be considered for reinstatement he must have a satisfactory driving evaluation from a rehabilitation centre.
A summary of what is involved in a driving evaluation was provided, as well as a
list of Approved Driving Assessment Centres in Ontario.
Dr. W. referred the Applicant to DriveABLE where a report was completed on April 24, 2012.
Overall performance on the In-Office Cognitive Assessment was not sufficient to resolve driver competency.
Performance on the road evaluation was outside the range of normal healthy drivers and beyond reasonable road safety as defined through the research. Continued driving can place (Applicant’s) safety and the safety of others at high risk. Driving cessation is strongly recommended.
Significant driving errors:
- Collision with curb, object or other road user (x2)
- Inadequate check for safety before a lane change (x3)
- Risky commitment to turn before establishing a view of oncoming traffic
- Did not make right-turn on red light although it was safe to proceed
- Inadequate check for safety before a lane change
Limitations were noted of neck rotation, right upper extremity, hip.
Assessment Results:
Ran over curb exiting parking lot. Missed 5 shoulder checks at lane changing. Barely glanced to right side at T-junction with no stop sign. Many rolling stops. Aggressive left turn-oncoming traffic. Did not signal as turning into parking spot. Perfunctory scanning at lights, rare rear mirror checks.
The Applicant’s case:
The Applicant has held a driver’s licence for fifty years, including truck driving and driving cars for dealers.
He stated that he was driving up to the time of his surgery even after he had a fall and had a lot of pain.
Surgery was performed to relieve pressure on his spinal cord. The surgery was on his neck and also on his back. After the surgery he was found to have lost 70% of usage of his right arm. He spent two months in hospital post-operatively and was then transferred to the Rehabilitation Centre. He was under the care of a specialist in Physical Medicine and Rehabilitation, Dr. W. for six weeks. He was allowed home to continue exercises. He stated that he was not aware that his driving privilege had been suspended until sometime after his discharge.
When his family physician referred him to DriveABLE he was in contact with the office concerning the cost. He was told that the assessment would cost $500 and that if he wished he could take some driving lessons at $125 per hour. If he failed the assessment he was informed that he could take a re-test for $316.
He declined to take the pre-test lessons due to the cost but he was advised to study the “Rules of the Road” handbook prior to the assessment.
He stated that he was not familiar with the side streets where the road test was held and that traffic was quite heavy that day. For instance he stated that when he was directed to make a turn there was bumper to bumper traffic and that he felt that he had to wait before completing the turn.
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 Respondent relies on:
The Medical Condition report filed on March 4, 2011 by a neurologist pursuant to Section 203 of the Act stating that his motor ability was impaired.
A second Medical Condition report by the Rehabilitation specialist on May 5, 2011 stating that he had no movement of the right shoulder since the surgery and that this is expected to be a permanent deficit.
There has been no medical evidence to support reinstatement although his family physician stated on October 23, 2011
“”he was making progress and in her opinion he might one day be safe”.
- Ontario Regulation 340/94 Section 14 (1)(a) 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 Applicant’s submission:
The Applicant states that he feels that he has made significant progress in his right arm and hand strength since the surgical complication. He uses a walker to assist him in mobility but is able to stand for short periods and goes shopping with his wife. Although he is entitled to a parking permit for the disabled he chose not to make application as he believes that this privilege is often abused.
The Tribunal finds that the Registrar was justified in issuing a suspension of the Applicant’s driving privilege under Section 47(1) of the Act upon receipt of an unsolicited Medical Condition report from a physician pursuant to Section 203 of the Act. This report stated that the Applicant had impaired motor function. A second Medical Condition report filed two months later by a specialist in Physical Medicine stated that this condition is expected to be a permanent deficit.
The Tribunal finds:
That notwithstanding the absence of up-to-date medical reports, the Applicant appears to have made significant progress since the report by the Physical Medicine specialist on May 5, 2011. His presentation and mobility during the Tribunal Hearing demonstrated that apart from some limitation in turning his head to the right he had good motor function especially of his right hand. The Applicant voluntarily demonstrated to the Tribunal his ability to rotate his head to the right with approximately 25% limitation.
That the errors described by the Occupational Therapist following the on-road evaluation coupled with the physical ability demonstrated by him at the Tribunal Hearing do not amount to
a physical condition or disability likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely. (Emphasis added).
- Errors not attributable to his disability may have been related to lack of familiarity with his environment and time elapsed since he had ceased to drive.
as stipulated by Ontario Regulation 340/94 14(a).
The Tribunal is impressed by the advice given to the Applicant by DriveABLE prior to his assessment that he should study the Rules of the Road Handbook.
The Tribunal suggests that the Registrar should include this advice to suspended drivers who are required to undergo a driver assessment at rehabilitation centres in order to be considered for reinstatement.
The Tribunal strongly suggests that the Applicant take remedial driving lessons in order to improve his confidence during continued recovery from his disability.
The Tribunal also suggests that the Applicant avail himself of the special parking permit for the disabled until fully recovered.
DECISION
Upon the application by the Applicant to appeal the decision dated March 15, 2011 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.
LICENCE APPEAL TRIBUNAL
Kevin Flynn, Presiding Member
RELEASED: August 29, 2012