Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 7041/MED
CASE NAME: 7041 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 Suspend a Licence
Applicant
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Kevin Flynn
APPEARANCES:
For the Applicant: Fabio Cinel, Paralegal
For the Respondent: Kyle Biel and Russell McKnight, Agents
Heard in Sudbury: February 8, August 13, and November 23, 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 July 16, 2011.
Background
A Medical Condition Report was completed in accordance with Section 203 of the Act on June 9, 2011 by Dr. G., a specialist in physical medicine at a regional hospital.
The condition reported was:
Stroke/TIA or head injury with significant deficits.
Patient is aware of this report.
The Registrar of Motor Vehicles informed the Applicant by letter on July 6, 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 was required to submit a detailed up-to-date report from his doctor to include the following:
The results of all investigations, diagnosis, prognosis, treatment, current status, confirmation that the conditions controlled and that there are no other disqualifying medical concerns that may impact his ability to safely operate a motor vehicle.
Confirmation that all risk factors have been addressed and include details of residual deficits (i.e. physical, cognitive, perceptual, visual).
If he has a visual field loss, an assessment from an eye specialist including an Esterman binocular test with false positive/negative errors not to exceed 20% or Goldmann binocular field test using an 111 4e test object with the test’s reliability confirmed, must be included. The assessment must also demonstrate that the vision standards of at least 120 degrees along the horizontal meridian with 15 continuous degrees above fixation are met. The results of his current visual acuity must be provided.
On August 2, 2011, Dr G wrote to the family physician, copied to the Ministry.
He reported that the Applicant suffered a right hemisphere stroke in May 2011 as a result of an occluded right internal carotid artery. There were persisting problems with left neglect, and attention and awareness deficits, balance impairment and a persisting left foot drop. He was discharged to live with his sister but moved out to live on his own. At the time of writing, Dr G noted that the Applicant was managing at home in a summer lodge and had no problems such as blackouts or seizures, and had normal gait. On testing, he performed the clock test normally, but had difficulty registering and repeating four unrelated words. He was able to add up numbers with no difficulty. Visual fields were intact. There was some facial weakness, mild hemiparesis, left foot drop and balance impairment.
In summary, he found the Applicant to be improved with some residual deficits, some memory problem and attention to detail.
With regard to his fitness to drive, Dr. G. stated:
I think he is good enough to have his licence reinstated for the purpose of undergoing a Driver’s Evaluation. He would need an on-road test to evaluate whether he is indeed safe to resume driving at this time.
The Registrar wrote to the Applicant on September 7, 2011 informing him that he must undergo a Driving Evaluation.
On October 11, 2011, a Driver Evaluation was conducted by the Regional Hospital.
The on-road test was aborted when the Applicant appeared to make an unsafe left turn at an intersection when a slow moving pedestrian was blocking the crosswalk and another vehicle was entering the intersection from the opposite direction.
He was found to be”inadequate for driving” and retest was not recommended.
Cognitive assessment showed a high prediction score for failure due to cognitive difficulties.
On October 31, 2011, the Ministry informed the Applicant that his driving privilege must remain under suspension. In order to be considered for reinstatement, he had to file an up-to-date assessment by his treating physician. Once received, he was told that he may be required to undergo another Driving Evaluation.
A Notice of Appeal was submitted on November 2, 2011. A hearing commenced on February 8, 2012 in Sudbury. The hearing was adjourned to allow for further evaluation.
A second Driver Evaluation was conducted by CBI on January 24, 2012. The Applicant did not meet the requirements for driving on the following grounds (summarised):
Strengths:
Demonstrated range of motion and strength required to operate a motor vehicle;
Was able to follow the majority of given directions and recall most of the instructions;
Demonstrated appropriate parking skills;.
Demonstrated good control of the vehicle
Problems
Not constantly scanning
Not observing speed signs
Very little eye movements towards mirrors
Not aware that his left lane turned into left turn
Drifted into right lane when performing a left turn
Required repetition to stay in right lane
Performed a wide right turn
Very poor motor free visual perceptual skills
Required a reminder to proceed on a green light
Unsafe lane changes without shoulder checks
No insight as to why he should stay in the right lane
Did not get into the left lane to turn left from a one way street.
The Tribunal noted that during the pre-road test the Applicant scored 7/7 on the clock drawing test. This was deemed to be abnormal by the clinic without an explanation by the examining therapist. The Tribunal was unable to determine if this meant that 7 out of 7 tests were normal or abnormal since Dr. G. in his report on August 2, 2011 noted a normal clock test .Optometry tests were normal.
On February 6, 2012, the Ministry informed the Applicant that his driving privilege would remain suspended. He was requested to arrange for a medical assessment that would show significant improvement in his cognitive function. Following approval of this assessment, he would have to complete another driving assessment.
On May 8, 2012, the report of a Driving Evaluation was prepared by Sudbury Regional Hospital. Noting that the Applicant’s first language was French, he was offered in-car French translation which he declined. During the in-clinic portion his friend was present to translate when needed. This report noted the following.
- It was noted that he had partial impairment of neck rotation. He was noted to be easily fatigued. Brake reaction was recorded as poor. Vision was normal.
- Motor Free Visual Perceptual test scored 27/38 which was below normal of 28/38.
- Concentration was well below average.
- Memory tests were not performed.
- Judgement was scored average.
- There was delayed information processing but was generally able to understand and follow most instruction but required more time.
- Overall Perceptual/Cognitive/Behavioural Status scored Inadequate for driving.
- On-road testing proceeded.
Strengths:
- Reasonable awareness of the driving environment;
- Maintained vehicle within the lane of traffic and within the posted speed limit;
- Attended to all traffic lights and made consistent full stops at lights and stoop signs;
- Consistently used his signals;
- Steering, braking and acceleration graded smoothly;
- Adequate stopping and following distance behind other vehicles;
- Consistently checked mirrors.
Identified Problems:
Failed to perform appropriate shoulder checks of blind spots
Failed to observe a stop sign at a 3-way stop
Frequently hesitant at intersections; required cuing at an advanced green and roll into an intersection on a green;
Incorrect lane choice once
Increasingly fatigued by the second half of the road test and made more errors;
Remedial training was recommended and a three month permit was requested.
As noted, the road test was conducted after 3 hours in-clinic and a language barrier was a factor. He was offered a few remedial lessons. It was emphasised that if his skills and decision-making do not improve with lessons, he would not be allowed to take a retest.
The hearing was scheduled to resume on June 15, 2012 and then on August 13, 2012, but was adjourned in order to permit the Applicant to apply for another road evaluation and for further medical information.
Driver Evaluation was conducted on June 22, 2012 by the Sudbury Hospital following three in-vehicle lessons. The instructor reported several driving errors during the last lesson. The Applicant was assisted by a French-speaking therapist who translated instructions and outlined the general process and possible outcomes. The Applicant signed a consent for videotaping the road test. This evaluation noted the following.
Strengths
Turns were executed from and completed within the correct lane most of the time
Lane changes were performed safely, with consistent use of turn signal indicator and side mirrors but inconsistent blind spot checks
Maintained the vehicle within his lane
Steering, braking and acceleration were graded correctly
Maintained appropriate following and stopping distance behind other vehicles.
Demonstrated the ability to smoothly grade braking and stopping distance behind other vehicles.
Identified Problems
Was not able to correct all problems noted during initial evaluation. Driving performance appears to be inconsistent.
Difficulty maintaining the vehicle within the posted speed limit in 80 km/hr zone
Inconsistent shoulder checks at blind spots
Frequent hesitations at intersections
Rolling into an intersection over the stop line
Several rolling stops
Incorrect choice of lane during left turn on a multi-lane one-way street
A few verbal reminders to cancel his signal lights
Slow to process information and to react to unplanned road hazards such as a tow-truck loading a vehicle.
The therapist was unable to check use of mirror as the Applicant was wearing dark sunglasses...Recommendations from this evaluation were:
Medical condition is impairing ability to drive
MTO Retest recommended
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.
Submissions:
At the hearing, was advised by the Applicant’s representative that when the stroke occurred in May 2011, the Applicant had no regular family physician. He was unable to find one in his area following discharge from hospital or since, and therefore has been unable to meet the requirements for up-to-date medical assessments.
On March 22, 2012 Dr. H., a physician at a walk-in medical clinic wrote:
(Applicant) has attended this Walk-In Clinic and has seen the various physicians on several occasions in the past year. I had seen most recently in March 2012,
Since he was last seen by Dr. G. in August 2011, there has been no significant change noted in his medical condition.
Attached is a list of nine visits to the clinic between July 25, 2011 and March 23, 2012
A medication list shows prescriptions for diabetes, cholesterol, blood pressure and smoking cessation medications..
On November 16, 2012, one week before the hearing resumed he was seen at a Health Centre and was able to obtain a note written by a Nurse Practitioner, filed as Exhibit #5.
To the best of my knowledge this man has not displayed signs of another stroke. He lives quite well independently. New patient since April 2012.
The Applicant has responded to the requirements by the Ministry at his own cost. Because he lives in an isolated community he needs transportation to do everything a normal member of the community has to do. He recognises that driving is a privilege. He has a clean driving record.
Prior to taking the final test he studied the rules of the road.
Mr Cinel submitted that on viewing the DVD of the June 22, 2012 road test, it shows that the Applicant does scan blind spots and shows no evidence of impairment. He recognises that he failed to stop at one stop sign when he was directed to go to a busy intersection. However, nobody was placed in danger by this omission. The DVD does not show evidence of excessive speeding.
Any errors made were not attributable to the stroke, but more due to unfamiliarity with the test vehicle. Also, he had not driven for over eight months and is not accustomed to driving in the city. The DVD shows that he keeps a safe distance behind other vehicles, stays in his lane and had no unsafe habits.
In submission, the Respondent’s Agent stated that the Applicant has taken three Driver Evaluations, which is most unusual.
In June 2009, the Medical Condition Report checked off “Stroke with significant deficits” and this justified the suspension issued by the Registrar under Regulation 340/94 (14) and Section 47(1) of the Highway Traffic Act. The specialist in physical medicine, Dr. G. identified some awareness deficits and recommended Driver Evaluation.
The first evaluation identified limited awareness of blind spots and attention to speed.The second evaluation identified lack of awareness of blind spots, driving too fast,and inconsistent lane checks. The third evaluation also identified blind spot checks and a missed stop sign.
The DVD demonstrates some nervousness and confirms the missed stop sign.
The Respondent’s Agent submits that there is no medical evidence in support of reinstatement.
The Registrar is not willing to allow another road test in spite of comments recommending another road test, by the occupational therapist following the June 22, 2012 test.
Application of the Law to Facts
The Tribunal finds that the Registrar was justified in issuing a suspension of the Applicant’s driving privilege under Section 47(1) or the Act, upon receipt of a Medical Condition Report on June 9, 2011, filed by a medical practitioner in accordance with Section 203 of the Highway Traffic Act.
Regulation 340/94 (14) authorises the Registrar to continue the Applicant’s driving licence suspension pending receipt of up-to-date medical information that is supportive of reinstatement.
The Registrar was justified under Regulation 340/94(14)(2)(b) in requesting Driver Evaluation testing by approved testing centres. The Applicant was tested three times. The first two tests showed some significant deficiencies of the driver’s ability to safely operate a motor vehicle. Prior to the third test on June 22, 2012, the Applicant read the rules of the road and took three driving lessons from a qualified driving instructor.
During the third test on June 22, 2012, a DVD recording was made and was viewed by the Tribunal. While the Applicant missed one stop sign, he otherwise appeared to have good control of the test vehicle, performed lane changes and turns efficiently, maintained safe driving distance between his and other vehicles. On the DVD, he appeared to be performing appropriate blind checks. Although he required cuing by the instructor on a number of occasions and was found by the instructor to perform several rolling stops, the Tribunal finds that his performance had improved significantly from that previously reported on the first two tests. While observance of stop signs is an essential part of road safety, it is the responsibility of law enforcement and public education and unfortunately is a very common infraction.
The Tribunal finds that several mitigating factors affected the Applicant’s driving skills. These include time since he had ceased to drive; driving in a city as opposed to more rural environment; language barrier; weather conditions recorded as cloudy with intermittent rain.
Each case must, of course, be decided on its particular facts. Here, after considering all of the evidence and submissions, ,the Tribunal finds that the experience of three on-road evaluations, improvement in his skills as recorded under “Strengths” following the June 22, 2012 test and his ability to continue to gain confidence in his driving ability indicate to the Tribunal that his physical condition will not likely significantly interfere with his ability to Drive a motor vehicle of the applicable class safely.
DECISION
Upon the application by the Applicant to appeal the decision dated July 16, 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: December 5, 2012