8311 v. Registrar of Motor Vehicles, 2013 CanLII 65437

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2013-10-03

FILE:

8311/MED

CASE NAME:

8311 vs. 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:

David W. Hurst, M.D., Member

APPEARANCES:

For the Applicant:

Self-represented

For the Respondent:

Sonia De Santis, Agent

Heard in St. Catharine’s:

September 25^th, 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 17, 2006 Dr. K.T. wrote to the Ministry of Transportation (“M.T.O”) regarding his patient, the Applicant, whose date of birth was August 13^th, 1923. It read as follows:

“To Whom It May Concern, it has been reported to me by family members that this patient is having major issues with his driving abilities, constantly hitting items, carrying a plunger to take the dents out of his car. His family members are concerned with his running of stop signs and stop lights and a general change in his mental status. This patient probably should be reassessed for his driving abilities and we are currently undertaking other investigations.”

On June 25^th, 2007, the M.T.O. acknowledged receipt of this letter stating appropriate action would be taken.

On June 25^th, 2007, the M.T.O. wrote to the Applicant to say that they had received a report which indicated that his driving privilege should be reviewed for medical reasons, and enclosed a Medical Report Form to be completed by a physician familiar with his medical history. The Medical Report Form was completed by the Applicant’s family physician, Dr. K.T., on the 16^th of July 2007. Tick marks were noted in the boxes for

1Cardiovascular diseases and a comment about elevated blood pressure was added

2Diseases of the musculoskeletal system. A note was inserted regarding arthritis

3Neurological diseases which included such problems as seizures, cerebral vascular diseases, Parkinson’s disease, Multiple Sclerosis, dementia, head injury and mental retardation etc.

Medical examination included a review of his visual acuity which was 20/20; a comment under the heart category stated what might be mitral regurgitation. Blood pressure was 126/66 with a normal sinus heart rhythm. Mental competence was noted to be normal. An added note mentioned history of congestive heart failure.

On January 10^th, 2008, the M.T.O. wrote to the Applicant stating that his Medical Report had been approved. The Ministry requested that any change in his medical condition should be reported.

On February 10^th, 2011, the Applicant’s family physician Dr. K.T. wrote to the M.T.O. stating that his patient, the Applicant, “is known to have a medical condition such that he represents a risk for driving”. This letter mentioned that in August of 2008 “the Applicant was instructed not to drive by Dr. M. Dr. K.T. observed that he concurred that the Applicant’s mental and physical abilities are such that he cannot drive without having a full assessment of his abilities which I believe will be found walking” (probably wanting).

The Ministry acknowledged receipt of this report and on March 15^th, 2011 sent to the Applicant a form letter indicating that he suffered from a medical condition which may impair his ability to safely operate a motor vehicle. This letter went on to state that the M.T.O. has decided to suspend his driving privilege for medical reasons under Section 47 (1) of the Highway Traffic Act.

This letter went on to state that the Applicant’s case could be reconsidered when the Ministry received a driving assessment satisfactory to the Registrar. The Ministry asked for an up to date driving evaluation confirming his ability to drive safely and they enclosed a list of recognized Ontario Driver Assessment Centres. On April 4^th, 2011, the Ministry, in correspondence with the Applicant, stated that as a result of a further review of his file they apologized to the Applicant and advised him to disregard the previous letter dated March 15^th, 2011 (which had indicated that he suffered from a medical condition which may impair his ability to safely operate a motor vehicle). This letter went on to state that its requirements will replace those in their previous letter of March 15^th, 2011.

In this new letter, the Ministry stated they had received a report indicating that the Applicant suffered from a medical condition which may impair his ability to safely operate a motor vehicle. Having considered all relevant facts, the Registrar of Motor Vehicles decided to suspend his driving privilege for medical reasons under Section 47(1) of the Highway Traffic Act. Further, this letter stated that to reconsider his case the Applicant must arrange for the M.T.O. to receive an up to date detailed assessment from his treating physician. This would include a complete psychiatric history (i.e. duration, degree), diagnosis, treatment, and dates of hospitalizations including your most recent discharge summary. The report would cover his current treatment, compliance history, and reference to any signs of impaired judgment/concentration, and any sedation or psychomotor retardation due to medication. Confirmation of his mental and emotional stability was also required. In addition, the assessment would reference his cognitive functions and include the results of all investigations his doctor may have initiated.

The letter from the M.T.O. went on to state it was necessary for the Applicant to file an Assessment from his treating physician regarding his physical abilities. This would include his current status and ability to operate a motor vehicle safely. On receipt of this report, and if it was approved by the M.T.O., the Applicant then might be required to undergo a driving evaluation at a rehabilitation centre. The Ministry also said that if the current report results in continuing the medical suspension the Applicant could request an Administrative Review with a representative of the Registrar.

The Agent then entered a letter to the M.T.O. from the Applicant. It was undated, irrelevant, disjointed, and bore little relation to the problems at hand (his suspension).

The Agent’s next entry was a certified copy of the Applicant’s driving record with only one entry of March 25^th, 2011 indicating a suspension for medical reasons. There were no demerit points.

The Agent then provided the Tribunal with references to the Ontario Highway Traffic Act Section 203, Ontario regulation 340/94 Section 14, Ontario Highway Traffic Act Section 47 regarding suspension and cancellation of licence.

THE APPLICANT’S EVIDENCE

The Applicant’s narrative was quite brief and disorganized. He said that he had no significant medical problems and that he can “hear, see and talk”.

He explained that initially his problems occurred after he suffered a fractured hip due to a fall in his kitchen. Recently (two years ago) he was given a pacemaker which has functioned well. Some guidance was required from the Tribunal to focus his comments and when questioned about the story (from his daughter) that he had been colliding with certain items while driving, the Tribunal was told that he had “only hit the side of the garage”. There had been no actual car accidents and he has never been involved with the police. He has not driven since 2010 and lost his licence in 2011. He was quite proud of the fact that while requiring a walker to help his ambulation he suffered no mental problems and had driven home from Florida by himself in 2010 returning to his hometown in 1½ days. He said he was willing to take a driving test and although a licence suspension did not hinder his activities he wanted it back.

The Agent, in cross examination, elicited the fact that a series of doctors who had attended the Applicant questioned his ability to drive, and despite their comments he had managed to keep driving. He was proud of the fact that he had an American driver’s licence. The Applicant also informed the Tribunal that he had suffered a broken tibia and surmised that it might have happened when he had experienced a TIA (transient ischemic attack). The Applicant said that with these events he was in hospital for several weeks, but doesn’t recall what investigations were done. The Applicant was aware that Dr. T. had recommended driving examinations and tests but this had not been done. The Applicant said he is willing to proceed with these investigations now.

The Applicant then described how he had been placed on renal dialysis for kidney failure beginning in 2011. This will continue indefinitely, two times a week. He sees his cardiologist twice a year and is taking a variety of pills, totalling 11 pills daily. He denied having seen a neurologist or a psychiatrist. He said that no cognitive function tests had been carried out but said he does not suffer from dementia. He had no explanation for failure to comply with the M.T.O.’s last letter on April 4^th, 2011 stating their requirements to enable him to consider reinstatement. He had not presented these matters to his current doctor.

SUBMISSIONS

The Agent summarized by presenting the two reports to the Ministry by Dr. T. indicating that the Applicant was not fit to drive, and in fact a full examination of the Applicant’s situation should be carried out. She noted that two letters have been sent to the Applicant regarding the need for driving evaluation and that the Ministry required more information from his doctor including a full psychiatric assessment. The Agent noted the occurrence of the TIA, also that the Applicant had suffered a few falls in the home setting, ,is now on dialysis, and requiring a pacemaker (in other words his health is poor). She emphasized that the Ministry was very concerned about the Applicant’s ability to drive. Despite their requests they have received very little information to help them with their deliberations, with emphasis on the lack of driving examination and testing and also the question of possible mental impairment. Questioning from the Tribunal disclosed that at one stage the Applicant’s daughter had obtained power of attorney over him but when she began to consume his meagre financial resources he was able to have this reversed. In his current lifestyle, the Applicant explained he is able to get around using a bus or taxi to do his shopping and banking, and has a health service van to take him to his biweekly dialysis sessions in an adjacent city.

The Agent closed by informing the Tribunal that the M.T.O., in receipt of very little information regarding the Applicant’s medical difficulties, must continue with this licence suspension until their detailed requests for information have been satisfied.

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 M.T.O. rightly became concerned about the Applicant’s driving privilege upon receipt of the letter from Dr. K.T. on May 17^th, 2006 stating that “his family members are concerned with his running of stop signs and stop lights and his general change in his mental status”. A Medical Report about the Applicant was completed by Dr. K.T. in July 2007, but the Applicant’s driving privilege remained in place until Dr. K.T. again wrote to the Ministry in February 2011 indicating that there were serious problems pertaining to the Applicant’s health. In March of 2011, the Ministry informed the Applicant that his driving privilege was suspended.

Since then, the Ministry has asked the Applicant for detailed medical reports and stated that a driving test was required.

None of this has been provided by the Applicant and in April 2011 the M.T.O. wrote to him indicating that his driving privilege would be suspended under Section 47(1) of the Highway Traffic Act. With their detailed lists of requirements, they specifically asked for assessment of his cognitive functions. They state that the Applicant has failed to comply with the Ministry’s needs for further information.

The Applicant’s doctors made it clear to the Ministry regarding their concern for the ability of the Applicant to drive safely and the Ministry has been perhaps a little slow, but correct in suspending his driving privilege. The Applicant’s evidence has given cause for concern to the Tribunal because of his medical problems (need for a pacemaker, chronic dialysis), but more specifically about his cognitive dysfunction. Despite guidance from the Tribunal, his presentation remains confused and demonstrated little insight to his difficulties in driving safely. He denied that he suffered from any dementia but it is quite likely that because of his extreme age (91 years), his physical and mental ability to handle a car safely on a highway are seriously compromised. His solitary letter to the M.T.O. indicates a serious lack of cognitive skills.

DECISION

Upon the application by the Applicant to appeal the decision dated March 15^th, 2011 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.