9564 v. Registrar of Motor Vehicles, 2015 CanLII 38735

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2015-06-29

9564/MED

9564 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

-and-

Registrar of Motor Vehicles

Respondent

Katherine Whitehead, M.D., Member

For the Appellant:

Self-represented

For the Respondent:

Kyle Biel, Agent

Heard in Toronto:

June 11, 2015

REASONS FOR DECISION AND ORDER

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”).

FACTS

The Appellant is appealing the suspension of his Class “G” driver’s licence. His licence was suspended on March 19, 2015.

The following is a summary of the facts presented to the Tribunal at the hearing.

The Appellant told the Tribunal that he had been experiencing problems with his speech and that he had been experiencing a high degree of stress. Thinking that his neurological symptoms were due to a “psychological condition”, he went to his family doctor.

As part of the investigation into his symptoms, an MRI was performed. The MRI showed multiple brain lesions consistent with a demyelinating condition with the differential diagnosis being a brain tumor or ischemic disease. The radiologist’s report indicated that a demyelinating condition was favoured as the reason for the findings. Multiple sclerosis is a demyelinating condition which can present with typical findings on an MRI as noted above. The findings were reported to the Appellant’s family doctor who arranged an “urgent neurological consultation”.

The Appellant’s family doctor filled out a Medical Condition Report on January 26, 2015. On that report the physician indicated “Other: possible Multiple sclerosis. Multiple brain lesions” as the reason for the report.

The Appellant told the Tribunal that he then saw a neurologist who had advised him that he likely had Multiple sclerosis and recommended that he start medication for this condition.

The Appellant declined to take the medication as he was unconvinced of the diagnosis. He declined to have a lumbar puncture due to concerns about the procedure.

The Appellant told the Tribunal that he felt further testing was required as it was his personal opinion that there was insufficient evidence for a diagnosis of Multiple sclerosis (MS) and he wanted to explore other possible causes of his symptoms and radiographic findings.

There were no clinical notes from the neurologist available at the hearing. All information about the assessment and recommendations from the neurologist was based on the Appellant’s recall.

The Appellant submitted a report from a physician in Chennai, India which detailed visual field testing and eye examination. The conclusion of the report was that there were normal visual fields, no glaucoma and no optic neuritis.

The Appellant provided an echocardiography report from a Toronto hospital which was normal.

He also submitted a report of “evoked potentials” (a type of neurological test that can be used in conjunction with other tests to help diagnose MS) which showed normal visual and auditory evoked responses and normal upper and lower limb somatosensory evoked responses. This normal test does not rule out the diagnosis of MS. It is generally used in clinical practice in conjunction with other tests.

The Appellant had a second and third MRI done. Neither of those reports were available to the Tribunal.

The Appellant told the Tribunal that he had also consulted a neurologist in India who told him that MS was likely. No written documents were provided and the information was based on the Appellant’s recall.

The Appellant plans to follow up with the neurologist again to review the results of his most recent MRI. He does not yet have an appointment arranged.

The Ministry of Transportation had sent the Appellant a form to be filled in by his physician asking for more details about his condition. Specifically, the form asked for comments on symptoms and stability of symptoms, functional impairments (visual, cognitive or physical), characterization of any tumor, and if, in the opinion of the physician, the Appellant would need a functional driving assessment.

This form was never completed.

The Appellant stated that his family doctor had gone on maternity leave and that he doubted whether the form could be filled in correctly since the diagnosis was still in question and investigations were ongoing.

The Appellant told the Tribunal that he had been riding his bicycle regularly on the road with no problems. He provided the Tribunal with a log of his bicycle routes and times travelled.

The Registrar’s position was that since there were still outstanding forms and that the medical condition for which the Appellant’s doctor had filled out the Medical Condition Report had not been adequately reported on, the licence should remain suspended.

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, emotional, nervous or physical condition or 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 grounds set out in section 14(1) of the Regulation set out above.

Section 50 of the Act states:

(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

Weighing the evidence on a balance of probabilities, the Tribunal finds that the Appellant is suffering from a condition, which is likely to significantly interfere with his ability to operate a motor vehicle safely.

Despite the Appellant’s concerns over the validity of the diagnosis, the current working diagnosis seems to be MS. The first MRI report is suggestive of MS. The family doctor wrote this as a possible diagnosis on the Medical Condition Report. The Appellant told the Tribunal verbally that two neurologists had told him that this was the likely diagnosis and that one had recommended starting medication for this condition.

Multiple sclerosis can be associated with visual, sensory, motor and balance issues that might interfere with safe driving. The diagnosis of MS does not, in and of itself, preclude safe driving. If more information had been available in the form of medical reports from neurologists and the interpretation of the follow up MRI scans, it may have been clearer as to whether the Appellant’s clinical condition was conducive to the safe operation of a motor vehicle. Unfortunately, those reports were not available. The reports that were available (the visual field testing and eye examination, the evoked potentials test and the echocardiogram) were normal but they did not speak directly or sufficiently to the overall clinical status and functional abilities of the Appellant. It is possible that, even with those normal tests, the Appellant could have MS or another significant neurological condition.

If the Appellant has MS, as is suggested by his neurologists, it is possible that he has MS symptoms that have not been reported or sufficiently resolved. If the diagnosis of MS is incorrect, the Appellant may have some other malignant, vascular or demyelinating condition that may similarly impact his ability to drive. Whether or not he has MS, the Appellant has a neurological condition that presented with neurological symptoms and has abnormal findings on an MRI. Assuming the Appellant’s verbal recall is correct, medication has been recommended to treat this neurological condition and investigations are ongoing. Without additional information from a medical professional reporting a stable clinical condition in the face of these findings, the Tribunal concludes that the Appellant does suffer from a physical condition that is likely to significantly interfere with his ability to drive a motor vehicle safely.

DECISION

Upon the application by the Appellant to appeal the Registrar’s decision, effective March 19, 2015, 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

Katherine Whitehead, M.D., Member

Released: June 29, 2015