Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 7815/MED
CASE NAME: 7815 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
ADJUDICATORS: D. Ian Turnbull, MD, Member D. Gregory Flude, Vice-Chair
APPEARANCES: For the Applicant: Self-represented For the Respondent: Kyle M. Biel, Agent
Heard in Toronto January 9, 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
Notwithstanding a letter dated January 9, 2013, from the Applicant’s Counsel seeking an adjournment, the Applicant, attended the hearing without his counsel, advised the Tribunal that he did not want an adjournment and wished to proceed without counsel.
In a letter dated April 16, 2012 (Exhibit 3, Tab 2), the Registrar requested medical information from the Applicant. The Registrar stated his driving privileges would be suspended if the requested information was not received by May 31, 2012. The May 31st deadline passed, and the Applicant's driving privileges were suspended, effective June 12, 2012 (Exhibit 3, Tab 9) for failure to file a medical report. The Highway Traffic Act (HTA) does not provide for a right of appeal to this Tribunal for failure to file information requested by the Registrar. The legal representative for the Registrar advised the Tribunal that the requested information had been provided and that the Registrar was not relying on the failure as a basis for continuing the licence suspension.
The Registrar advised that the Applicant’s licence suspension had been changed to a “suspension for medical reasons” pursuant to Section 47(1)(g) of the Highway Traffic Act (HTA) and s. 14 of O. Reg. 304/94. The Tribunal has jurisdiction over an appeal for medical reasons and the appeal proceeded under that section with the consent of the Parties.
FACTS
The Applicant is a 52-year-old truck driver who was pulled over by a police officer February 4, 2012, to check his sobriety because his passenger car was swerving in its driving lane (Exhibit 3, Tab 1a).
Because the Applicant performed poorly on the Standard Field Sobriety Test (SFST), and the officer suspected “the culprit” had alcohol in his system, the Applicant was arrested for impaired operation of a motor vehicle.
Two breathalyzer tests at the police station showed readings of 23 and 16 milligrams of alcohol in 100 ml of blood, well below the legal limit. As a result, the arrest was rescinded unconditionally and the Applicant’s car released.
The police officer sent a Request for Driver’s License Review to the Registrar (Exhibit 3, Tab 1), dated February 5, 2012 because of “erratic behaviour” and “displayed signs of impairment.”
In addition to reporting the Applicant’s erratic driving, the officer took it upon himself to express a medical opinion. In the Occurrence Report (Exhibit 3, Tab 1a), he said on page 7, “the male’s motor skills were impaired by Huntingdon’s Disease, as well as lack of sleep due to working excessive hours.” From this point onward, the Ministry appears to have taken it as a fact that the Applicant, in fact, suffered from Huntingdon’s disease and in a letter dated April 16, 2012 (Exhibit 3, Tab 2), the Ministry asked for medical information to be submitted to the Medical Review Section by May 31, 2012, regarding the police officer’s opinion that the Applicant had Huntingdon’s Disease.
The deadline passed without receipt of the requested information. The Applicant’s driving privileges were automatically suspended by the Registrar for failure to file a medical report (Exhibit 3, Tab 9), effective June 12, 2012.
By letter dated September 12, 2012, the Applicant’s physician of 15 years responded (Exhibit 3, Tab 3) stating the Applicant “has never been diagnosed with Huntingdon’s Disease.” The physician continued, “he can safely operate an automobile.”
In a letter dated October 22, 2012 (Exhibit 3, Tab 4), the Registrar acknowledged receipt of the Applicant’s physician’s letter of September 12, 2012 and next asked for completion of a “Medical Report Form”. The Medical Report Form, dated October 16, 2012 (Exhibit 3, Tab 5), completed with his family physician showed no medical abnormalities.
In a letter dated November 14, 2012 (Exhibit 3, Tab 6), the Registrar acknowledged receipt of his physician’s second report and asked for yet more medical information.
His physician completed a “Cerebrovascular Traumatic Brain Injury” form dated November 20, 2012, indicating “no diagnosis” (Exhibit 3, Tab 7). On Page 2, Part 4, Question 2 – indicated an independent driving assessment was “pending”.
The Registrar responded (Exhibit 3, Tab 6) in a letter dated December 5, 2012, that a satisfactory driving evaluation from a rehabilitation centre was required before consideration of restoration of the Applicant’s driving privileges. The Applicant explained in his evidence that he was suffering financially as a result of the licence suspension and offered to get a driving assessment to satisfy the Ministry that he was a safe driver. His physician filled out this section of the form at the Applicant’s request.
As of the date of the hearing, the Applicant’s driving privileges remain suspended despite the fact that there is no diagnosis that he suffers from a mental, emotional, nervous or physical disability likely to significantly interfere with his ability to drive a motor vehicle safely from any qualified person.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
Does the Applicant no longer 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,
(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 finds the Respondent has not made the case that the Applicant’s driving privileges should remain suspended.
There is no medical evidence to suggest the Applicant is not able to operate a motor vehicle safely. His family physician of 15 years has confirmed this in letters and/or reports dated September 12, 2012 (Exhibit 3, Tab 3), October 16, 2012 (Exhibit 3, Tab 5) and November 20, 2012 (Exhibit 3, Tab 7).
The only suggestion of a medical condition is the police officer’s unqualified opinion of “Huntingdon’s Disease” (Exhibit 3, Tab 1a). This opinion is refuted by the Applicant’s personal physician who also considers the Applicant capable of operating a motor vehicle safely.
The Registrar believes the Applicant's physician requested a driving evaluation from a rehabilitation centre, as suggested by the word "pending" on Page 2, Part 4, Question 2 of Exhibit 3, Tab 1).
To the contrary, the Applicant stated that it was his idea to volunteer for a driving evaluation "to speed things up", but now wishes he hadn't suggested it.
Ontario Regulation 340/94, Section 14(1)(a) which 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
In considering the evidence and applying the law, the Tribunal is mindful of the safety of both the Applicant and the motoring public.
There is a total lack of medical information to support the police officer's opinion of Huntingdon's Disease. The officer's remarks regarding "lack of sleep due to working excessive hours" may be correct and may explain the Applicant’s observed driving behaviour 11 months ago. Had the officer limited himself to his actual observations instead of attempting to give medical opinions, any perceived shortcoming in the Applicant’s driving skills resulting from that night could have been resolved by different and more direct testing. Instead, the Applicant has been attempting to refute a non-diagnosis and has been faced with continuous requests for further information because of an apparent assumption that the officer’s opinion is a proper medical diagnosis.
In the face of compelling evidence from the Applicant’s physician, the Tribunal finds the Applicant is not suffering from Huntingdon's Disease or any other disorder which is likely to significantly interfere with his ability to operate a motor vehicle safely.
DECISION
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 and that the Applicant’s driving privileges be restored.
LICENCE APPEAL TRIBUNAL
D. Ian Turnbull, MD, Presiding Member
LICENCE APPEAL TRIBUNAL
__________________________ D. Gregory Flude, Vice-Chair
RELEASED: January 23, 2013