9795 v. Registrar of Motor Vehicles, 2015 CanLII 72215

Licence Appeal Tribunal

DATE: 2015-10-15

FILE: 9795/MED

CASE NAME: 9795 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

9795 Appellant

-and-

Registrar of Motor Vehicles Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Dybesh Regmi, M.D., Member

APPEARANCES:

For the Appellant: Self-represented

For the Respondent: Sonia De Santis, Agent

Heard by teleconference: October 8, 2015

REASONS FOR DECISION REASON 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

Ms. De Santis informed the Tribunal that the Ministry received a Medical Condition Report from a Nephrologist, Dr. DB dated July 10, 2014, in which a tick box was marked for the following conditions:

1. "Other metabolic diseases" with words "RENAL DISEASE" beside it,
2. "Mental or Emotional Illness Unstable"
3. "Other" with words "recurrent episodes of confusion" beside it.

Attached with this report was a Nephrology Consultation from October 10, 2013 and June 5, 2014. The consultation details the mental status of the Appellant when he was brought into the hospital as well as the physical examination, laboratory investigations, past medical history and the medical plans while the Appellant was in hospital. In "consultations", it is stated that the Appellant is non-compliant with his therapies and medications.

Following the receipt of the document, on August 25, 2014, the Ministry of Transportation ("MTO") wrote to the Appellant indicating that his reported conditions are Renal Disease and Psychiatric Condition and that his driving privilege would be suspended, under section 47(1) of the Act. With the letter, the Ministry also included the Mental Health Assessment Form and instructed the Appellant to take the letter and the forms to his treating physician, specialist or nurse practitioner and have them send the following information to the Medical Review Section:

1. Details of the renal disease including stage of disease, treatment and compliance, current status, confirmation that the condition is controlled.
2. Confirmation of no residual effects
3. Confirmation the functional abilities necessary for driving are not impaired.

Dr. JB, the family doctor of the Appellant, completed the Mental Health Assessment Form dated February 2, 2015. Dr. JB has been involved in the management of the Appellant's medical conditions since July 2014. Information in the form indicates that the Appellant's primary mental illness is "Acute delirium secondary to Opioids versus infection" with the most recent episode 3-6 months ago. Dr. JB also reports: "The current status of the Appellant is noted to be stable for less than 3 months and symptoms have resolved. The Appellant currently exhibits no impairment in cognition, attention or memory and has no difficulties with judgement. The patient has been admitted to the hospitals multiple times in the last 12 months for medical reasons and has exhibited drug-seeking behaviours according to reports from hospital". He also states that the "Appellant is taking medications that may impair the ability to drive but only takes it at night. The Appellant is compliant with recommended treatment regimen and is under medical supervision from a regulated health practitioner whom he sees every 2-3 months. He also has appropriate insight of his medical condition and the impacts on their functional ability to drive". Dr. JB reports that the Appellant has self-referred himself for an independent driving assessment but has not completed it yet. Part 5- Additional Comments or information to take into consideration has the physician's writing but it is not legible. Within the section following, the physician writes:

"Sensitive to my knowledge he had had no further episodes of delirium. He has a history of narcotic abuse in past but I have had no current issues as his family physician. I have no documented evidences of mental illness seen on file although I took over this practice within the last year. I feel it may be appropriate to reassess his driving abilities as I have no clear reason at this point in time to suggest otherwise unless there are concerns from his nephrologist that I am not aware of."

Upon receipt and review of the Mental Health Assessment Form, on March 24, 2015, the MTO wrote to the Appellant informing him that information previously requested was not received. The Ministry instructed the Appellant to take the letter to the treating physician, specialist or nurse practitioner and have the information regarding details of the renal disease including stage of disease, current status, treatment and compliance sent to the medical review section.

Dr. DB, the Appellant's nephrologist sent a letter dated April 16, 2015 to the Ministry explaining that the Appellant has been known to him for 5 years. The letter stated that the Appellant had a failed kidney transplant and had been undergoing peritoneal dialysis since January 2011. In June 2014, he had significant confusion and elevated blood pressures and was admitted to the hospital for possible uraemic encephalopathy. During the time in hospital, the Appellant demonstrated noncompliance with dialysis, demands for narcotics as well as communications escalating in intensity with nursing staff. It seems the Appellant had a Myocardial Infarction resulting in a coronary artery bypass graft surgery in September 2014. The physician describes his current status as being much improved clinically as well as emotionally and socially. The Appellant continues to have peritoneal dialysis and blood pressures have normalized. Dr. DB is supportive for the MTO to review the Appellant's suitability for driving.

Following the receipt of this letter, on June 5, 2015, the MTO wrote to the Appellant informing him that a satisfactory driving evaluation from a rehabilitation centre would be required for his case to be considered for reinstatement.

Ms. De Santis referred the Tribunal to page 133 of the Canadian Council of Motor Transport Administrators (CCMTA) document and table 5.6.1 – "Stage 1 to 4 renal disease" indicating the recommendations for reinstatement, which requires that functional abilities necessary for driving are not impaired.

The Appellant's presented his own case. Under affirmation, the Appellant stated that he had a kidney transplant in 2000, which lasted until 2010. Since 2010 he has been on peritoneal dialysis. The Appellant states that this caused him to have delirium in June 2014, due to an allergic reaction from being prescribed hydromorphone. He states that he never abused medications and does not drink alcohol. He is a single father and a carpenter and details cars on the side as a business. He states he needs his driver's licence to be able to drive the vehicles for detailing. Currently, he depends on his 87-year old mother who is taking care of his 90-year old father with Alzheimer's to take him around. He acknowledges that he had delirium. He states that he needs peritoneal dialysis four times a day and the nearest driver evaluation centre is in North Bay. Therefore, for safety concerns he is not sure how he can get there and complete the evaluation. He also states that the cost of the evaluation is very high and is not something he can afford. He has reached out to a social worker, but they do not fund these assessments.

The Appellant, upon further questioning, has difficulty in accepting that compliance has been a major concern for his physicians. He continues to find causation in a single medication that caused him a reaction.

The Appellant states that he sees the specialist once a month. Ms. De Santis asked if the latest information regarding the stage of kidney disease and his current status could be sent to the Ministry. The Appellant did not know why that information had not been sent yet. It was clarified for him that the responsibility to send that information would be his. The Appellant stated that he would be willing to send the latest information directly to Ms. De Santis for review by the Medical Review Section. The Appellant was then offered the choice of whether he would like to proceed with the appeal, or adjourn. The Appellant chose to proceed.

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 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 that the Respondent was justified in issuing the suspension of driving privilege upon receipt of the medical condition report of dated July 10, 2014.

The issue before the Tribunal is to determine from the evidence submitted whether the Appellant is suffering from a mental, emotional, nervous or physical disability likely to significantly interfere with his ability to safely drive. The evidence in this case consists of relevant forms, letters from physicians, specialists, medical records and statements given by the Appellant under affirmation.

The simple fact that the Appellant suffers from a renal disease does not, in itself, significantly interfere with his ability to operate a motor vehicle safely.

The Appellant suffers from renal disease, and requires dialysis. Non-compliance on this treatment has led to delirium and multiple hospitalizations for the Appellant, at least once in 2013 and in 2014. Both of the physicians attribute the mental impairment to non-compliance, a pattern of behaviour that seems to be repeated by the Appellant. Such noncompliance is likely to have an impact on his ability to drive safely.

Secondly, as per the specialist, the Appellant's clinical condition seems to have returned to baseline, however it is unclear what this baseline is. The stage of Appellant's renal disease at baseline may have effects on the ability to drive a motor vehicle. The Registrar's Agent has requested the up-to-date information for the Ministry's review and consideration. This along with the driver's evaluation may assist the Appellant in his effort to have his licence reinstated.

Finally, the Appellant has poor insight regarding the cause of his delirium. The Tribunal is not convinced he is able to understand the link between his behaviour of non-compliance and the delirium.

Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant is suffering 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 September 4, 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

Dybesh Regmi, M.D., Member

Released: October 15, 2015