Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2015-06-09
FILE:
9546/MED
CASE NAME:
9546 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
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:
Kyle Biel, Agent
Heard in Toronto:
June 2, 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
On March 26, 2015, a sleep specialist, Dr. SC, wrote a letter to the Ministry of Transport (MTO) stating that the Appellant suffered from
“a severe form of Obstructive Sleep Apnea (OSA)-Hypopnea Syndrome which is unfortunately untreated at this time. Her Apnea-Hypopnea Index (AHI) was 64 per hour. She scored 1 out of 24 on the Epworth sleepiness scale that was within normal limits. She may have her Driver’s licence suspended or require an extended Road test if she decides not to pursue any treatment for her underlying severe sleep apnea.”
Apparently, a sleep study had been performed at an earlier date following a referral from her family physician after complaints of fatigue. The Appellant acknowledged at the hearing that this was her third sleep study in the past decade. She did not submit the results of those studies as evidence at the hearing.
The Ministry of Transportation (‘MTO’) wrote to the Appellant on April 9, 2015 informing her of the licence suspension and asking for either confirmation that her OSA is treated successfully, or if untreated, confirmation of an AHI of less than 20 with no history of daytime sleepiness. Her licence was suspended on April 19, 2015.
The Appellant’s family physician completed the MTO’s Sleep Disorders Assessment form on April 30, 2015. The form acknowledged a diagnosis of sleep apnea and an AHI greater than 20 without treatment. It noted that Continuous Positive Airway Pressure (CPAP), a form or treatment, had been tried and not tolerated.
The Appellant’s employer wrote a supportive letter on April 28, 2015 documenting good work with no signs of fatigue in her years of service at a local grocery store. Her multiple duties include handling cash, and she states she has never had a till discrepancy. She feels this shows excellent concentration skills.
A letter to the Tribunal dated May 5, 2015 from the Appellant documents her discontent with the decision to suspend her licence. She has no history of daytime sleepiness. She has seen her family physician for regular annual physicals for many years and has never been told not to drive. She couldn’t tolerate CPAP and wanted to return the machine so the government didn’t have to waste money on the machinery and at this follow-up visit was told about the letter that would be sent to the MTO.
The MTO responded on May 19, 2015. They continue to request confirmation of successful treatment for OSA, a description of the modality of treatment and proof of compliance. Any history of daytime sleepiness must also be documented. AHI can be greater than20 in the scenario. Alternatively, if treatment is refused, then AHI must be less than 20 and there can be no daytime sleepiness.
The Appellant’s driving record is clean except for this medical suspension.
These facts are undisputed by either party.
The Registrar’s Evidence
Canadian Council of Motor Transport Administrators (CCMTA) standards for OSA require the criteria asked for in the MTO letter sent to the Appellant. This is due to an increased risk of motor vehicles collisions when suffering from OSA as outlined
The sleep study assessment completed by the family physician corroborates the sleep specialist’s report of severe sleep apnea without treatment. No new information has been reported to specifically state the Appellant is safe to drive. Additionally, there are other treatments listed in the CCMTA standards for OSA besides CPAP, which have not been tried.
The Appellant’s Evidence
The Appellant is not happy with the suspension and feels she is safe to drive. She doesn’t fully understand the results of her sleep study, and finds it difficult to accept a suspension of her licence when she knows others who are in much worse condition can drive. She is not aware of any other treatments for OSA and has only been offered the CPAP that she has tried on several occasions and cannot tolerate.
Her sleep specialist told her that she could take a road test to get this sorted. The physician did write this in his note to the MTO. Furthermore, the MTO seems to be relying on an AHI of less than 20, and on questioning their representative, the MTO admitted at the hearing that even if she accepts treatment, they would probably want a score close to this value. There is no history of daytime sleepiness.
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 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 Registrar has made a good argument for this being a case of untreated severe obstructive sleep apnea, which holds a real correlated risk of motor vehicle collisions. But this is correlation, and not causality. There is not a great deal of evidence to corroborate a history of daytime sleepiness. In fact, the only official comment on this comes in the form a very low Epworth sleepiness scale score. This was documented in the sleep specialist’s letter.
The Appellant is frustrated and with justification. She may be able to get treatment that does not include CPAP, but is currently unaware of those treatments. Furthermore, at the hearing, when asked by the Tribunal, Mr. Biel had no specific criteria for what constitutes successful treatment of OSA other than an AHI of less than 20. However, the written criteria sent to the Appellant explicitly states that one can have an AHI of greater than 20 if treated successfully, and drive. This is at best mildly confusing and possibly quite contradictory. The Registrar’s representative did admit that the MTO would have to likely rely on the medical opinion of her doctors.
It seems logical to assume that the risk of motor vehicle collision is more related to the presence of daytime sleepiness than to AHI score. It is reasonable that the CCMTA guidelines and the MTO would look at having a specific numerical value in which to monitor a medical condition, however the numerical value must be interpreted in clinical context. In fact, any scenario in which the MTO will reinstate a licence shares the criteria of documented lack of daytime sleepiness. Clearly, they agree with this statement in spirit. Additionally, and rightfully, the Registrar’s representative suggests that much relies on the physician's medical opinion. In this case, both the letter from the sleep specialist and the medical condition report from the family physician suggest no concerns with daytime sleepiness. The former physician felt this could all be settled with a driving test, which is not the case. However, if this could be done, the Tribunal would suggest a clean driving record over several decades is quite a successful passing grade.
The documentation in this case does not actually suggest that either physician has any actual concerns about the Appellant’s ability to drive. The documents merely state that she has untreated OSA. The initial letter appears to have been sent to the MTO based on the physician’s interpretation of their legal duty in a patient with OSA declining treatment. Additionally, the submitted documentation describes a person with no history of daytime sleepiness, the presumptive main measure of concern. Thus, in this particular case, the MTO has not met the onus of proving, on a balance of probabilities, that the Appellant suffers from a physical condition likely to significantly interfere with her ability to drive a motor vehicle safely.
DECISION
Upon the application by the Appellant to appeal the decision dated April 19, 2015 of the Registrar to suspend her 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
David Borenstein, M.D., Member
Released: June 9, 2015