9384 v. Registrar of Motor Vehicles, 2015 CanLII 20245

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-03-17

9384/MED

9384 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 V

ehicles Pursuant to Section 47(1) of that Act - to Suspend a Licence

Appellant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

Dr. David Borenstein, Member

APPEARANCES:

For the Appellant:

Self-represented

For the Respondent:

Mr. Kyle Biel, Agent

Heard in Toronto:

March 11, 2015

REASONS FOR DECISION AND ORDER

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 went to see his Family Physician (Dr. G.I.) on December 5, 2014 at which time, the physician completed a Medical Condition Report based on Section 203 of the Highway Traffic Act. He listed a condition of Dementia or Alzheimer’s. He stated that the Appellant’s MMSE score had fallen from 25 to 21 out of 30, that the Appellant could not draw a clock properly and “I doubt that the patient should be driving”. He also noted that the Appellant had been told about this report, but may not remember.

The MTO responded on December 8, 2014. The driving licence was to be suspended, and the MTO required a full cognitive assessment as a next step in reviewing the ability to drive. They sent a copy of the required assessment form.

The Appellant did not have any physician complete the cognitive assessment. He appealed the suspension to the Tribunal. In his Notice of Appeal form, he noted that he, and his wife, must drive to their cottage 4 hours outside the city. It is their second home. He stated he did poorly on his mental test due to fatigue over the fact that his wife had been in hospital at the time and he had been visiting her often.

The Appellant’s driver’s licence was suspended December 18, 2014,

The Registrar’s Evidence

The Registrar presented the above facts. These were not disputed by the Appellant or his wife. It was noted that even if the cognitive assessment is completed, further testing of driving function could be required. All parties appeared to eventually understand the full process.

The Appellant’s Evidence

The Appellant and his wife stated that they didn’t feel his cognition was this bad and that he can drive well. They feel there is a strained relationship with his current family physician. They are concerned that they will now have to find other means of transport for their daily life, and to get to their cottage. The Appellant’s wife also has a current driving suspension. Their children live far away and cannot help. However, the couple fully understood the case of the Registrar. They offered no evidence to suggest there is not a cognitive decline.

ISSUES

Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?

In particular:

Does the Appellant suffer from a mental or physical condition 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 Canadian Council of Motor Transport Administrators (”CCMTA”) standards are such that in cases concerning cognitive impairment, one must have the following:

Met the conditions of licensure,
Have a complete medical assessment indicating cognitive function when necessary, and where required,
Have a functional driving assessment to show the condition does not affect the ability to drive.

The physician in this case provided a medical condition report in good faith. He spent time to complete the optional section that appears to show legitimate concerns that the Appellant should not be driving at this time, based on the assessment that he conducted. The MTO is requiring a cognitive assessment as a first step, and this seems reasonable considering the information they have been provided with. The Appellant clearly desires to have his driving licence reinstated, however, he has not provided any evidence to counter the physician’s statements regarding his condition and the impact on his ability to drive a motor vehicle safely. Weighing the evidence before it, the Tribunal concludes that there does not appear to be any compelling evidence to set aside the suspension at this time.

DECISION

Upon the application by the Appellant to appeal the decision dated December 18, 2014 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 confirmed.

LICENCE APPEAL TRIBUNAL

David Borenstein, M.D.,Member

Released: March 17, 2015