Licence Appeal Tribunal
FILE: 7913/MED
CASE NAME: 7913 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: 7913
Respondent: Registrar of Motor Vehicles
REASONS FOR DECISION AND ORDER
ADJUDICATOR: D. Ian Turnbull, MD
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Russell McKnight, Agent
Heard in Toronto: March 14, 2013
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”).
PRELIMINARY MATTERS
Both parties agreed to enter a note, dated February 13, 2013, from the Applicant's physician as Exhibit 4.
FACTS
The Applicant is a 71-year-old retiree who fell, at home, on December 17, 2012. He fell when he was getting up for the day at 6 am and trying to put on his prosthetic shoe.
His teen-aged daughters heard the fall, called "911" and an ambulance took him to hospital. According to the Applicant, he is "the chief cook and bottle washer" for a family of seven. In addition to being depressed, he was emotionally and physically exhausted in the week before Christmas, and these circumstances caused him to fall.
The Registrar received a Medical Condition Report from a physician, dated December 17, 2012 (Exhibit 3, Tab 1), reporting pursuant to Section 203 of the Highway Traffic Act (HTA).
The physician checked the box "Seizures - Cerebral" and in the "Optional" portion wrote "episode probable seizure". Coincidentally, another physician reported the same incident (Exhibit 3, Tab 3), and in the "Optional" section wrote, "new onset seizures."
The Registrar sent the Applicant a "Notice of Suspension of a Driver's Licence" in a letter dated January 7, 2013 (Exhibit 1); the effective date of the suspension was January 14, 2013.
In a letter dated January 5, 2013 (Exhibit 3, Tab 2), the Registrar confirmed the Applicant's driver's licence suspension and provided him with the "Epilepsy and Seizures" form to be completed with his family physician.
The Applicant brought the form to the physician on February 5, 2013 (Exhibit 3, Tab 5); it was faxed to the Registrar on February 12, 2013. His family doctor of 30 years says, on page 6, the Applicant “doesn’t have appropriate insight into his condition and his functional ability to drive.” The form was evaluated by the Medical Review Section. The physician also said his records did not mention a previous history of seizures.
The Applicant had a prior fall. On an extremely hot day in September 2012, the Applicant fell while getting out of bed at 6 am while trying to put his prosthetic shoe on. One leg is shorter than the other (as a result of osteomyelitis), and he wears a prosthetic shoe. The Applicant says he was weak because of the heat wave, depressed by the untimely cancer death of his wife earlier in the month and had difficulty sleeping. He fell awkwardly hurting his left hip.
His family called "911," and Emergency Medical Services (EMS) took him to hospital. He was neither admitted to hospital, nor was there a report submitted to the Registrar under Section 203 of the HTA.
In a letter to the Applicant dated February 13, 2013 (Exhibit 3, Tab 6), the Registrar states the Applicant's driving privileges should remain under suspension.
The same letter outlines the three pieces of information the Applicant is required to provide to the Medical Review Section of the Registrar for consideration of restoration of his driving privileges.
- Description of your syncope/ loss of consciousness, including a cause and confirmation of successful treatment.
- Confirmation you have remained free from further episodes for a period of three months.
- Confirmation of improved insight of your condition.
The Applicant responded with a Notice of Appeal, dated February 15, 2013 (Exhibit 2), indicating that he "did not have a seizure" as the hospital physician reported.
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; 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,
(a) The plate portion of a permit as defined in Part II
(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 acted correctly in suspending the Applicant’s driver’s licence upon receipt of a Medical Condition Report, dated December 17, 2012 (Exhibit 3, Tab 1).
The Registrar has also made the case that the Applicant’s driving licence should remain suspended until all three pieces of medical information requested in a letter dated February 13, 2013 (Exhibit 3, Tab 6) have been reviewed by the Registrar’s Medical Review Section.
The Applicant sustained two syncopal episodes, in September 2012 and December 2012. His family called an ambulance on each occasion, and he went to the same hospital. The Registrar received a physician’s Medical Condition Report only after the December 17, 2012 incident.
An eyewitness description of these two episodes is lacking, and the nature of the loss of consciousness is unlikely to be resolved with certainty. Based on the evidence before it, the Tribunal believes that these may be syncopal episodes (fainting), rather than seizures.
However, the Tribunal notes that on January 2, 2013, the Applicant attended a neurologist who arranged for magnetic resonance imaging (MRI) and an electroencephalogram (EEG) of the Applicant’s head. The same neurologist also suggested anti-convulsant medication, which the Applicant declined after learning of the possible side effects. The results of these tests have not been provided to the Tribunal.
The Applicant states the episodes were not seizures; that is a “misdiagnosis”. He says “they are not linked” and has plausible explanations for each event. The Tribunal notes the only episodes cited to it arose from the Applicant putting on his prosthetic shoe when getting out of bed in the morning, something he does every day.
The Applicant says he comes to the Tribunal as a “supplicant” to “beg” and “plead” to get his driver’s licence back, now that he is “cognizant of the situation.” His life would be much easier if he had his licence back.
From Chapter 19 (“Syncope”) of the 12th draft of the September 2012 “Medical Standards for Driving” of the Canadian Council of Motor Transport Administration (CCMTA), (Exhibit 3, Tab 8), the Registrar’s Agent refers to 19.6.7, Page 273, which discusses “Recurrent Unexplained Syncope – Non-Commercial Drivers.”
The Standards to be eligible for a licence are firstly, confirmation of a three-month period since the last episode and, secondly, ,that the conditions for maintaining a licence are met. These are itemized in the letter dated February 13, 2013 (Exhibit 3, Tab 6).
Of the three requirements listed, the Applicant has provided only confirmation of being “episode-free for three months (Exhibit 4).”
In his testimony, the Applicant says he is “now cognizant of his situation,” which suggests improved insight into this condition.
What is missing is a more thorough description of these episodes, including a possible cause and recommendation for treatment, if any. The Applicant was sent to a neurologist for testing, but as noted above, those results are not before the Tribunal nor, it appears, to the Registrar’s Medical Review Section. Further, that neurologist, after meeting with the Applicant, in January, proposed medication, which the Applicant has declined. The Tribunal does note that the CCMT Guidelines recognize that in a small percentage of patients, an underlying cause may never be found.
In considering the evidence and applying the law, the Tribunal is mindful of the safety of both the Applicant and the motoring public.
(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
With complete, confirmed and up-to-date medical information, the Medical Review Section of the Registrar may consider the Applicant eligible for early restoration of his driving privileges.
The Tribunal has considered all of the evidence and finds, based on the balance of probabilities, the Registrar has acted properly in continuing the suspension of the Applicant’s driving privileges (Exhibit 3, Tab 6).
DECISION
Upon the application by the Applicant to appeal the decision dated January 14, 2013 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, Member
RELEASED: March 21, 2013