8872 v. Registrar of Motor Vehicles, 2014 CanLII 46345

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-07-14

FILE:

8872/MED

CASE NAME:

8872 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:

D. Ian Turnbull, M.D., Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Sonia De Santis, Agent

Heard by teleconference:

July 2, 2014

DECISION AND REASONS

This is an appeal to the Licence Appeal Tribunal (the “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”).

PRELIMINARY MATTERS

The Respondent noted there was no report of the Appellant’s scheduled Functional Driving Assessment (FDA) on January 16, 2014. The Respondent asked the Appellant if he wished to adjourn the hearing pending completion of the Driving Assessment or proceed with the teleconference hearing.

The Appellant stated he cancelled the January 16, 2014 FDA because of bronchitis.

The Appellant asked for more information before deciding whether or not to adjourn the hearing.. He made the following points.

• He believes the FDA is “biased” since it is administered by the Registrar.

• He believes it would be “an admission of guilt", if he were to take the FDA.

• He believes his physician is more qualified than an occupational therapist to assess his ability to drive safely.

• The Appellant believes that he would only have to repeat the FDA if his licence is restored.

• He believes insurance companies can access his certified driving record.

• He wants the “suspended for medical reasons” entry in his certified driving record to be immediately deleted because it is “erroneous.”

The Registrar’s Agent responded as follows:

• Had the Appellant successfully completed the FDA on January 16, 2014, his driving privileges would have been restored immediately.

• The Registrar’s role in testing drivers is to provide approved independent Ontario Driver Assessment Centres throughout the province.

• The testing is provided by an occupational therapist and a driving instructor. The cost is between $400 - $800, and takes three-to-four hours. A detailed report is sent to the Registrar and copied to the Appellant.

• The item on his certified driving record, “suspended for medical reasons” cannot be erased; it will disappear in three years whether the Appellant gets his driver’s licence restored, or not.

• The Registrar’s Agent stated the information in an individual’s certified driving record is never made available to insurance companies.

• The Registrar’s Agent stated if the Appellant’s driving privileges were restored, he would not have to have an FDA.

After the lengthy discussion, the Appellant decided he wished to proceed with the teleconference hearing.

FACTS

The 62-year-old Appellant states he has had “weak legs” since his late 30’s or early 40’s. Multiple neurologic investigations have been unable to find a cause. He uses a walker. In a grocery store, he uses their cart.

On August 6, 2013, while waiting in the check-out at the grocery store, he stumbled on his cart wheel and fell. Uninjured, he says he was back on his feet in “two seconds.”

An onlooker persisted in telling him some of the others present thought he had fainted. The Appellant told this bystander he neither fainted nor lost conscious-ness.

The bystander (also referred to by the Appellant as “a busybody or wannabe hero”) followed him as he pushed the cart to his car and asked the Appellant if he was fit to drive. The Appellant replied “yes.”

Within 15 minutes of arriving home with his groceries, a police officer arrived for a welfare check to ensure the Appellant’s safety. Apparently, the bystander had made a note of the Appellant’s car’s licence plate and phoned the police giving his version of the episode at the grocery store.

The officer said he was responding to:

• Public complaint/ information

• Loss of consciousness/ blackout

• Other neurologic impairment

According to the Appellant, they chatted about his health, education and work. The Appellant states the officer left the house three times.

The police officer’s note of the residence check (Exhibit 3, Tab 1), dated August 6, 2013, states "upon departure, several neighbours approached the police officer with concerns about the Appellant's ability to safely operate a motor vehicle. They believe he has some sort of neurological impairment (possibly multiple sclerosis) and had been concerned about his ability to drive for some time."

When the police officer left for the final time, he told the Appellant he would have to send (Exhibit 3, Tab 1) “A Request for Driver’s Licence Review” to the Registrar “just to cover his ass.” (Exhibit 3, Tab 4, Page 5).

Upon receipt of the Request for Driver’s Licence Review, dated August 6, 2013, the Registrar, in a letter dated August 16, 2013 (Exhibit 3, Tab 2) suspended the Appellant’s driving privileges because of “loss of consciousness.”

The same letter asked the Appellant to take the letter to his physician to provide the following information:

a. Description of any loss of consciousness history, cause and confirmation of successful treatment

b. Date of last episode.

c. Details of residual deficits and any other disqualifying medical issues, if any.

In a letter dated September 10, 2013 (Exhibit 3, Tab 3), his family physician of 10 years responded, stating “it is clear to me that (the Appellant) suffered no loss of consciousness,” and that “the weakness in his legs in no way affects his ability to drive safely.”

Having reviewed the Appellant’s file, in a letter dated November 19, 2013 (Exhibit 3, Tab 5), the Registrar requested an FDA from an approved Ontario Driver Assessment Centre. His physician arranged the FDA for January 16, 2014 (Exhibit 5, Tab 8).

The Appellant filed a Notice of Appeal (Exhibit 2), dated May 26, 2014.

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.

Section 47(1) of the Act gives the Registrar the power to suspend or cancel a driver’s licence on the ground(s) set out in section 14 (1) of the Regulation set out above.

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 Tribunal finds the Registrar has not made the case that the Appellant’s driving privileges should remain suspended.

The Tribunal believes the Appellant’s affirmed testimony that a loss of consciousness was not the cause of his fall in a grocery store on August 6, 2013. The Tribunal believes the Appellant’s version that he accidentally stumbled over his grocery cart wheel, fell and got immediately to his feet. In his letter dated September 10, 2013, his physician states, “he has never had a seizure, loss of consciousness or fainting.” The Appellant maintains the police officer took the bystander's word as fact which made him “guilty until proven innocent.”

The Appellant's driving privileges were initially suspended August 16, 2013, because of a reported "loss of consciousness." The Registrar's position changed in the letter dated November 19, 2013, requesting a driving evaluation (FDA).

The Tribunal believes that the Registrar, in reviewing the police report of August 6, 2013, the Appellant's physician's letter of September 10, 2013 and the Appellant's letter of October 26, 2013, decided the issue was not a loss of consciousness as originally thought. No longer is it loss of consciousness or neurologic impairment issue, rather, it is a musculoskeletal condition.

The Registrar's Agent states the driving evaluation was asked for because of the content of his family physician's letter, dated September 10, 2013, which states "he suffers from motor neuropathy resulting in choreiform movements and muscular weakness. This results in his being noticed by others and stumbling." The Appellant states he has an occasional slight tremor (choreiform movements) which present when he is emotionally aroused or excited.

The Registrar's Agent cites the Canada Council of Motor Transport Administrators (CCMTA) Guidelines of August 2013 – Medical Standards for Drivers. The guidelines may be considered by the Tribunal in deciding whether the legislative test is met.

The Registrar’s Agent refers to Chapter 11 – Chronic Musculoskeletal Conditions, Page 188, Section 11.6.2.

Chronic musculoskeletal conditions include diseases of the joints, disabilities of the spine and deformity.

STANDARD

All drivers eligible for a licence if

• the driver retains sufficient movement and strength to perform the functions necessary for driving
• pain associated with the condition, or the drugs used to treat the condition, do not adversely affect ability to drive safely
• where required, a road test or other functional assess-ment indicates ability to compensate for any loss of functional ability required for driving, and
• the conditions for maintaining a licence are met

Conditions for

maintaining licence

• Only drive vehicles that have the permitted modifica-tions and devices required to compensate for any functional impairment

Reassessment

• Routine

Information from health care providers

• Opinion of treating physician on whether the driver has a loss of range of motion or strength that may affect functional ability to drive
• Opinion of treating physician on whether pain or drugs may adversely affect functional ability to drive
• Where required, the results of a functional assessment
• Opinion of treating physicians as to whether the driver has insight into the impact their condition may have on driving
• History of compliance with prescribed treatment regime
• If known or applicable, whether the driver is compliant with any current conditions of licence related to their condition

Rationale

The impact of a chronic musculoskeletal condition on fitness to drive is variable and must be determined by an individual functional assessment.

The Tribunal is interested in the police officer’s report of the residence check August 6, 2013, which states he “was approached by the Appellant’s neighbours over his ability to operate a motor vehicle safely.” The Appellant states the officer left his house three times during the visit; the Appellant presumed he was “looking for evidence.”

Whether the officer approached the neighbours initially or vice versa is relevant. The Tribunal is unsure what impact, if any, the neighbours’ observations of the Appellant’s unusual gait over time may have had in their assessment of his ability to drive a motor vehicle safely.

The Appellant admits he has “an unusual gait which tends to be noticed by other people” and adds “his walking is not a pretty sight to see, but he gets around,” with a walker. The Appellant has “weak legs – no known cause,” repeatedly investigated by neurologists over the past 20 years. The Appellant says he weighs 135 pounds and can stand on either leg without support.

The Appellant was unaware that his driving was an issue with his neighbours. Their “concerns” about his inability to operate a motor vehicle safely are not detailed in the police officer’s report. The Appellant is proud of his certified driving record (Exhibit 3 tab 9 ) and he has no demerit points.

The Appellant's family physician of 10 years clearly states in his letter dated September 10, 2013, "he has no other residual deficits which could disqualify him from continuing to drive. He poses no danger to others, and I understand has not had any motor vehicle accidents." The doctor continues, "The weakness in his legs in no ways affects his ability to drive safely. For this reason, I believe that his licence may be re-instated without undue risk."

The Tribunal member has not seen such a strongly supportive letter for restoration of driving privileges from an appellant's physician in 10 years of conducting these hearings. Based on the evidence, it is the Tribunal’s opinion, the Appellant does not need a driving evaluation for restoration of his driving privileges.

The Tribunal is mindful of the safety of both the Appellant and the motoring public. In considering Regulation 340/94 of the Highway Traffic Act, Section 14(1)(a)

(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;

The Tribunal finds after weighing the evidence on a balance of probabilities, the Appellant does not currently suffer from a condition which is likely to significantly interfere with his ability to operate a motor vehicle safely.

DECISION

Upon the application by the Appellant to appeal the decision effective August 13, 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 Appellant;

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 set aside.

LICENCE APPEAL TRIBUNAL

D. Ian Turnbull, M.D., Member

Released: July 14, 2014```