Licence Appeal Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 8788/MED
CASE NAME: 8788 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
Appellant Appellant
-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: Sonia De Santis, Agent
Heard in by teleconference: May 22, 2014
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal by the Appellant 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 Appellant received a letter dated December 18, 2013 from the MTO stating his driving privileges were to be suspended following the submission of a letter from Dr. W.M dated November 13, 2013. This physician is a surgeon who saw the Appellant for gallbladder disease and subsequently removed the gallbladder. The letter stated; “The above gentleman should not be driving until further notice. He should get a notice from his family physician first.” The MTO letter required clarification for the ‘Medical Condition’ that would impede the Appellant’s driving ability. Specifically requested were results of investigations conducted, a diagnosis, treatment, current status, and confirmation that the condition is controlled.
The Appellant subsequently submitted two Mini-Mental Status Exams (MMSE) performed by his family physician dated November 9, 2011 and November 13, 2013 with scores of 23 and 24 respectively. These classify him with mild dementia signs. Upon review, he was notified that his suspension would remain in a letter from the MTO dated May 9, 2014. The process of answering the MTO has taken a while as the Appellant spends quite a bit of time in Mexico.
During the hearing the Appellant stated that he did not receive the information in the MTO Registrar’s package until the morning of the hearing as he had been away. He has an appointment booked with his family physician for the next week. His options were explained to him and he was offered an adjournment twice, but declined as he wished to proceed with the hearing.
Upon questioning from the Registrar’s representative, it seems that the Appellant had been admitted following a vacation for a ‘gallbladder attack’ and saw Dr. W.M. He learned of the letter to the MTO after seeing his family physician. His regular doctor referred him for a driving functional assessment, but the centre in his small hometown is closed and he needs to see someone in a larger centre. The family physician performed the MMSE to compare to past results that were submitted. The Appellant and his wife were told by someone that if they come to the Tribunal, the licence may be reinstated without need for this expensive and long distance assessment. According to him and his wife, he is otherwise healthy, and takes no medications.
The Registrar’s case:
There is limited information available. A certified physician has sent a note explicitly stating the Appellant should not drive. His family physician has provided two MMSE both showing mild dementia and has referred him for a Functional driving assessment. No professional has explicitly stated he should drive in writing. There is cause for reasonable concern; information on the Appellant’s cognitive status and physical ability to drive is warranted. The registrar was willing to accept adjournment for further information, which the Appellant declined twice in the hearing.
The Appellant’s case:
He read a statement he has previously mailed to the LAT. He feels he was on pain medication and suffering jet lag when he saw the surgeon. He has passed a driving test as recently as April 25, 2013. His MMSE scores actually improved with time. He plays Bridge, is active and cares for his own financial affairs. His wife has confirmed his abilities and feelings.
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 CCMTA guidelines generally require the following standards for licensure with a medical condition;
- A stable condition
- Sufficient driver insight to stop driving if a condition becomes acute
- Proper functional ability to operate a motor vehicle
- Support from the treating physician
- Conditions for maintaining a licence are met.
The reality is that no diagnosis has ever been officially provided to the MTO to explain the need to stop the Appellant from driving, and thus the condition affecting the Appellant’s ability to drive is unknown. He is unaware why his licence was suspended and thus cannot provide insight. A functional abilities test is yet to be performed. And no support to drive has been officially provided by a treating physician. The only official documentation provided is that of a letter from a certified physician who had concerns about driving based in good faith, and two MMSE’s both suggesting mild dementia. Of more concern is that no physician has made an explicit statement that the Appellant is safe to drive. For this reason, further clarification is needed either from the original surgeon, the family physician or a functional driving examiner to determine the ability of the gentleman to safely operate a vehicle. Should any one of these individuals supply documentation and a summary of any conditions suffered by the Appellant, with support for him to drive, it would go a long way to meeting the CCMTA criterion above and supporting reinstatement of driving privileges.
DECISION
Upon the application by the Applicant to appeal the decision dated December 28, 2013 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: May 29, 2014