Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8078/MED
CASE NAME: 8078 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: Dr. David Borenstein, Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Mr. Kyle Biel
Heard in Toronto: June 12, 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
On May 25, 2012, the Ministry of Transportation (“MTO”) received a Medical Condition report from Dr. E.P. It stated that the Applicant has a medical condition that would affect his ability to drive, specifically ‘encephalitis’. According to the Applicant, this was diagnosed following a vacation in Mexico and a subsequent seizure. Dr. E.P. had been treating the Applicant for 3 weeks at the time of the report. The Applicant was notified of the suspension on his driving privileges on June 2, 2012 by the MTO. In the letter, the MTO asked for information from the treating physician in regard to tests completed, current health status, evidence of a controlled condition and list of residual deficits. Suspension of driving privileges occurred on June 11, 2012.
The Applicant’s regular physician, Dr. K.C, wrote a letter to the MTO dated February 14, 2013. It stated the Applicant had an ‘acquired brain injury with improvement, but I am unsure of his ability to respond quickly, for example, stopping quickly in case of a car stopping in front of him.” The letter asked the MTO to arrange re-assessment of the Applicant’s ability to drive safely. The MTO responded with a letter asking for the Applicant to arrange completion of the cerebrovascular diseases traumatic brain injury/tumour or neurological disease assessment. Dr. K.C completed this form on March 21, 2013. He noted a diagnosis of traumatic brain injury and herpetic encephalitis. Symptoms were listed as stable, but ongoing and moderate. The Applicant is on anti-viral medications, but there is permanent brain damage with cognitive impairment. The Applicant’s last seizure was on February 15, 2013. The Applicant’s physician feels there is no insight on the part of the Applicant as to his medical condition and its functional impairment. The physician suggests a driving assessment.
At the hearing,, the Applicant admitted he did not seek medical treatment for his seizure on February 25, 2013.
Based on the above report, a letter dated April 18, 2013 was sent to the Applicant. The MTO wished to have information on both the Applicant’s seizures (with proven stability of 6 months duration) and on the Applicant’s cognitive impairment. The Applicant has provided no further information.
The Applicant’s case:
The Applicant’s wife and two children accompanied him to the hearing. He did not deny any of the facts above. He and his family feel he is safe to drive. They are clearly and understandably frustrated with the situation. He operates heavy machinery on his property at home, and can perform his basic ADL’s. His verbal abilities are slowed, but the rest of him is fine and back to normal. In his Notice of Appeal, he noted his physician is decreasing his medication Dilantin because he is doing well. His logic processes are intact. No further medical information was provided.
The Registrar’s case:
The Registrar feels that the Applicant has not provided the necessary information to determine road safety. Based on CCMTA standards, the Applicant should not be driving due to cognitive impairment and seizures. Before the Applicant can have his driving privileges returned he must show stability of both these conditions to a level capable of being safe on the road. Additionally, the MTO cannot authorize a road test until they have proof that the Applicant is stable enough to perform such a test.
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 issue is whether the Applicant suffers from a physical condition that is likely to significantly interfere with his ability to drive a motor vehicle safely. Based on the information submitted, the Applicant’s own family physician does not know the definitive answer to this question, however, he did express the view that the Applicant may not, because of the brain injury be able to respond quickly when driving, . The physician has very reasonably stated this in the letters submitted. The Registrar has very valid concerns based on the information they have been given and the Applicant has not provided any objective information to allay these concerns. Thus this given the balance of probabilities, there is no way to say at this time, given the past history, that the Applicant can safely drive a motor vehicle..
DECISION
Upon the application by the Applicant to appeal the decision dated June 11, 2012 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
David Borenstein, Presiding Member
Released: June 20, 2013