Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2015-11-10
FILE:
9819/MED
CASE NAME:
9819 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:
Katherine Whitehead, M.D., Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Kyle Biel, Agent
Heard in by teleconference:
October 27, 2015
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”).
EVIDENCE
The Appellant’s physician submitted an unsolicited medical condition report to the Respondent on January 27, 2015 for reasons of “stroke or head injury with significant deficits.”
The physician was in receipt of a driving assessment report of the Appellant from a Ministry of Transportation approved Functional Assessment Centre from January 22, 2015. This report found no physical limitations to driving but outlined multiple concerns from the on road assessment. These included (but were not limited to): abrupt accelerations and braking, failure to perform full stops, difficulty maintaining position in a lane, using the wrong lane, failing to recognize a one way street, failing to check blind spots, and not anticipating hazards.
The conclusion of the report was that there were medical deficits interfering with safe driving ability. The Appellant was not deemed to be a candidate for driving rehabilitation or a repeat road test.
On March 21, 2015, the Respondent sent a letter informing the Appellant that his licence would remain under suspension until he could provide confirmation of significant improvement in his cognitive function.
The Appellant’s physician filled a supplementary medical condition report which stated that the Appellant had suffered a stroke, and had stable and mild cognitive impairments. The physician recommended that the Appellant be able to undergo a second functional driving assessment. The reason noted for the repeat assessment was that he had not been familiar with the car and that the weather conditions had been unfavourable for the first test.
There was a consult note provided from a neurologist whose conclusion was that the Appellant had “not experienced any symptoms suggestive of recurrence of cardiovascular ischemia”.
The Appellant underwent a repeat functional driving assessment on July 14, 2015. Again there were multiple areas of concern similar to the previous assessment. The conclusion was that there were medical deficits interfering with safe driving ability. He was not deemed to be a candidate for driving rehabilitation or a repeat road test.
The Appellant’s neurologist sent a letter on September 22, 2015 stating that the Appellant had “no persisting neurological deficits that will impair his driving abilities” and he raised the possibility that the Appellant had sat too soon for the previous test and not allowed sufficient time for recovery.
The Appellant has not had a third functional driving assessment. He told the Tribunal that he wanted to proceed with the appeal despite not having had the third assessment.
The Appellant stated that he totally disagrees with the assessments and was surprised by their outcomes. He felt that there were several biases and unfair assumptions made about him in the assessments. For example, he thought he was discriminated against because he walks with a cane, and he felt that the need to check for road hazards was excessive. He felt that the test was better suited for new drivers rather than people, like himself, who are experienced drivers. He felt that the second driving assessment was unsuccessful because he had not been driving for six months prior to the test and was out of practice.
The Appellant highlighted his past driving record, which included two previous accidents where he had not been at fault. He testified that he had recently been driving extensively in Europe with no issue.
He felt that he should not have to sit for another assessment as the previous two were flawed. He noted that the assessments are costly.
The Respondent asked that the licence remain suspended due to the two failed driving assessments which the Respondent submitted were valid.
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
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.
The Appellant has had two functional driving assessments done and failed both. In reviewing the documents from the assessments, the Tribunal finds that the assessments were complete and comprehensive. There did not appear to be any over-riding bias in the assessments. They appeared to meet the usual standard for functional driving assessments. Both assessments revealed similar deficiencies and concerns. The Tribunal accepts that the driving habits noted in the assessments are representative of the Appellant’s abilities at the time of the tests.
The Tribunal notes that the Appellant’s neurologist reported no deficits that would interfere with driving. But the results of the functional driving assessments refute this.
The functional driving assessments are more specific to driving abilities than the office assessment of a neurologist. While the neurologist must imply functional ability through observations made during a clinic visit, the functional driving assessments directly test the question that the Tribunal needs to answer: Is the Appellant suffering from any mental, emotional, nervous or physical condition or disability which is likely to significantly interfere with his ability to operate a motor vehicle safely?
The two functional driving assessments report multiple driving behaviours that pose increased risk to both the Appellant and the public should he continue to drive.
The Appellant’s past driving record, while good, does not outweigh the present impact of the failed driving assessments. It is possible for driving abilities to change over time, especially in the setting of clinical illness like a stroke.
While it is possible that the Appellants’ driving habits may improve, there is no evidence of such an improvement presently.
The evidence shows that Appellant’s mental condition is sufficiently impaired to significantly interfere with his ability to operate a motor vehicle safely.
DECISION
Upon the application by the Appellant to appeal the decision effective February 2, 2015 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
Katherine Whitehead M.D., Member
Released: November 10, 2015