8063 v. Registrar of Motor Vehicles, 2013 CanLII 32980

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE: 2013-05-29

FILE: 8063/MED

CASE NAME: 8063 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, Member

APPEARANCES:

For the Applicant: Unrepresented

For the Respondent: Russell McKnight, Agent

Heard in Ottawa: May 22, 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”).

FACTS

1. The 60-year-old Applicant had her driver's licence suspended in a letter from the Registrar dated April 5, 2013 (Exhibit 1). The effective date of suspension was April 15, 2013 (Exhibit 3, Tab 6).

2. The Registrar had received an unsolicited Medical Condition Report (Exhibit 3, Tab 1) dated February 22, 2013, indicating the Applicant had two medical conditions.

(i) Motor Function/ Ability Impaired, and

(ii) Other - chronic peripheral neuropathy

3. In a letter dated April 5, 2013 (Exhibit 3, Tab 2), the Registrar asked the Applicant to have her physician, specialist or nurse practitioner provide medical information to the Medical Review Section.

4. The Applicant's long-time physician (over 30 years) retired at the end of 2012. The Applicant has twice seen the new physician that took over his practice, each time for ten minutes, January 9 and February 22 ,2013.

5. The Applicant responded by faxing two medical consultations (Exhibit 3, Tab 3) dated August 4, 2004 and (Exhibit 3, Tab 4) dated August 31, 2005.

6. In a letter dated May 10, 2013 (Exhibit 3, Tab 5), the Registrar asked the Applicant to provide confirmation there had been a significant improvement in her peripheral neuropathy.

7. The Applicant sent a Notice of Appeal (Exhibit 2) dated April 5, 2013, and the Tribunal arranged an in-person hearing for May 22, 2013.

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,

(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 has made the case that the Applicant's driving privileges should remain suspended. The Applicant needs to provide the Medical Review Section of the Registrar with up-to-date information regarding her chronic peripheral neuropathy.

The Applicant submits "historic" medical information from 2004 and 2005 (Exhibit 3, Tabs 3 and 4). The August 4, 2004 letter from a neurologist follows a left sural nerve biopsy. The Applicant had complained of subjective numbness of the left hand and both feet. She told the physician "she felt uncertain when driving because her left foot might slip off the pedal."

In Paragraph 2 of his Plan, the physician stated "she will not be able to continue working as a school bus driver, and it is questionable that she should drive at all."

Seen in August 4, 2005, by another neurologist whose impression was "the patient has a chronic sensory polyneuropathy/ neuropathy, no correctable etiology found."

The most recent medical information is contained in her(former) new physician's Medical Condition Report (MRC) (Exhibit 3, Tab 1), dated February 22, 2013. In addition to checking off the boxes referring to Motor Function/ Ability Impaired and chronic peripheral neuropathy, the physician addressed the Optional Section of the form stating, "The Applicant has poor balance and co-ordination" and "reports she can't feel her feet on the ground." Continuing, she tells me "she can't feel the pedal beneath her feet "but she knows it's there."

The Applicant makes the following points:

1. Her former physician gave her samples of a new drug before he retired, which makes her "feel her foot now, where she couldn't before." The Applicant has dismissed the physician who took over her long-time doctor's practice. Currently, she has no physician, is uncertain how to find a replacement and has no means of obtaining a repeat of this new medication.

2. The Applicant strongly disagrees with the "Motor Function/ Ability Impaired" check off. She says this relates to a weight scale in the doctor’s office which was too close to the wall and she had difficulty maintaining her balance.

3. The Applicant is furious with her ( former) new physician. She states both the January 9, 2013 and February 22, 2013 office appointments were more like” visits”. The Applicant claims there was no (physical) examination - "never laid a hand on me" - and she was only there for 10 minutes each time.

The Applicant's initial visit (Exhibit 2, p. 5/15) with her new physician, January 9, 2013, led to an ophthalmology referral and bilateral cataract extractions, March 4 and April 8, 2013.

4. The Applicant asks why none of her earlier physicians (family doctor and neurologists) took steps to have her licence suspended. She accepted the neurologist's advice (Exhibit 3, Tab 4) and voluntarily let her Class B licence lapse.

5. Her new physician had reviewed the Applicant's file and brought up the question of whether the Applicant should be driving on her February 12, 2013 appointment.

According to the Applicant, the new physician said the neurologist in 2005 "had recommended she not drive all.” The Applicant points out correctly the neurologist said it was "questionable, whether she should be driving at all."

6. The Applicant's daughter provided a sworn affidavit (Exhibit 2, pp. 10, 11/15) dated May 2, 2013. In Paragraph 4, she states, "Today I have no concerns regarding my mom's driving. She has always been, and still is, a conscientious driver."

The Registrar was correct in suspending the Applicant's driving privileges in a letter dated April 5, 2013 (Exhibit 1) following receipt of a Medical Condition Report dated February 22, 2013 (Exhibit 3, Tab 1). The physician checked two boxes - "Other" - "chronic peripheral neuropathy" and "Motor Function/ Ability Impaired."

The Registrar made a reasonable request in a letter dated May 10, 2012 (Exhibit 3, Tab 4) of the Applicant to provide up-to-date information describing the severity of her impairment and details of symptoms (if any).

The Applicant supplied medical reports from 2004 and 2005 (Exhibit3, Tabs 3 & 4), leaving the Medical Condition Report (Exhibit 3, Tab 1) as the most recent medical information.

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

Mindful of the safety of both the Applicant and the motoring public, the Tribunal supports the reasonable request of the Registrar to provide up-to-date medical information to the Medical Review Section before consideration of restoration of driving privileges.

DECISION

Upon the application by the Applicant to appeal the decision dated April 15, 2013 of the Registrar to suspend her 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 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, Presiding Member

RELEASED: May 29, 2013