Licence Appeal Tribunal
FILE: 8249/MED
CASE NAME: 8249 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
8249 Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Garry Fisher, M.D., Member
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Russell McKnight, Agent
Heard in Toronto: August 20, 2013
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal (the “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
The Applicant is a 75 year old man who had an ischemic stroke on May 1, 2012. In accordance with Section 203 of the Highway Traffic Act, Dr. L.B. notified the Ministry of Transportation.
In a letter dated July 12, 2012, the Applicant was notified that, under Section 47(1), his licence to drive was suspended.
Early management of his stroke consisted of hospitalisation for left-sided weakness, a right carotid stent and rehabilitation as an in-patient. Follow-up has been through an Outpatient Rehabilitation Clinic.
Complicating the stroke was a bout of West Nile virus in summer 2012.
Dr. L.B. (Physiatrist), has followed the Applicant’s progress from early May 2012 to the present. Her last note of January 14, 2013, indicated that he is essentially stable from the stroke standpoint.
She did point out under “Issues” that the Applicant “is interested in returning to driving.” He was assessed at the Rehab centre and it was recommended that he complete further comprehensive driver assessment, including an on-road driving evaluation at a MTO approved assessment centre.
A temporary driver’s licence was issued April 19, 2013. A driver assessment was carried out on May 6, 2013.
The Applicant passed the physical (motor function) aspect of the tests, but failed the cognitive assessment.
The recommendation was that “driving cessation is recommended as cognitive changes impair the client’s ability to operate a motor vehicle”.
The Applicant was not happy with the conclusions of the drive assessors. His main criticism was that he was not familiar with the test vehicle. His own car was bigger (wider) and he was familiar with that larger size. Driving too slowly is a common criticism in these assessments and indeed, here, it amounted to 6 of 15 comments. He (the Applicant) disagreed with the findings of the assessors. He thought he did well.
When out and about he gets around on Wheel-trans and ambulates with a four-wheeled walker. He is a sensible pleasant fellow who appears his stated age.
He understands that a second try at passing the driving assessment can be arranged. The cost goes up from $600 to $800 and there is no guarantee of success.
Should he wish to pursue that course, the Respondent will assist him.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
In particular, does the Applicant suffer from a mental, emotional, nervous or physical disability likely to significantly interfere with his 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 Ministry of Transportation requires confirmation of driver fitness where drivers have been reported medically unfit to drive.
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
The Applicant failed to pass the on-road assessment as a result of cognitive changes which were found to impair his ability to operate a motor vehicle. This is evidence to which the Tribunal gives significant weight in these circumstances.
Weighing the evidence on a balance of probabilities, the Tribunal finds the Applicant is suffering from a condition which is likely to significantly interfere with his ability to operate a motor vehicle safely.
DECISION
Upon the application by the Applicant to appeal the decision effective July 12, 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
Garry Fisher, M.D., Member
Released: September 3 2013