Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2016-11-02
FILE:
10476/MED
CASE NAME:
10476 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:
Kevin Flynn, M.D., Member
APPEARANCES:
For the Appellant:
Self-represented
For the Respondent:
Sanjay Kapur, Agent
Heard by teleconference:
October 26, 2016
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”).
OVERVIEW
The Appellant, age 58, was diagnosed with controlled narcolepsy by a specialist in sleep disorders in January 2016. The specialist, Dr. F., reported her condition to the Registrar in April 2016, in compliance with section 203 of the Act.
Section 203 requires every physician in the Province of Ontario to report to the Registrar when a patient is suffering from a medical condition that may make it dangerous for the person to operate a motor vehicle.
The Registrar suspended her licence to drive under section 47(1)(g) of the Act effective April 23, 2016.
The Tribunal sets aside the suspension.
FACTS
Evidence for the Registrar
The Registrar received a Medical Condition Report that was completed on April 12, 2016 by Dr. F., a sleep specialist. This report was based on an examination of the Appellant on January 20, 2016. No reason was given for the delay in completing the report to the Registrar.
Dr. F. stated that the condition was:
Narcolepsy – controlled (sic)
On April 13, 2016, the Registrar informed the Appellant that a report of narcolepsy had been received and that considering all relevant facts available, it had been decided to suspend her driving privilege.
She was requested to take the letter of suspension to her physician and have the following information sent to the Medical Review Section:
Confirmation that there have been no daytime sleep attacks, with or without treatment, during the past 12 months
Confirmation that there have been no episodes of cataplexy, with or without treatment, during the past 12 months
On May 12, 2016, Dr. F. completed the “Sleep Disorders & Narcolepsy” report requested by the Registrar.
In summary, this report stated:
Diagnosis: Narcolepsy
Apnoea-hypopnoea index (AHI): less than 20
Successfully treated for over 3 months
No report of excessive daytime drowsiness
Cataplexy less than 12 months ago. “No cataplexy whatsoever since January 2016 when medication was started”.
Medication prescribed does not have side effects that may impair her ability to safely operate a motor vehicle
Patient is adherent to the prescribed regimen and has not demonstrated non-adherence
“Excellent response to treatment with excellent cataplexy prevention- none at all in any situation since on Effexor”.
The Registrar reviewed the above report and on June 20, 2016, informed the Appellant that her physician must submit the following:
Confirmation that she has remained free of any episodes of cataplexy, daytime sleep attacks or sleep paralysis in the past 12 months
Confirmation of compliance with and response to prescribed treatment
Date of last episode.
The Canadian Council of Motor Transport Administrators (CCMTA) Guideline 18.6.2 December 1, 2015 edition sets out the standard for non-commercial drivers:
Non-commercial drivers are eligible for licence if;
There have been no daytime sleep attacks, with or without treatment, during the past 12 months
There have been no reported episodes of cataplexy, with or without treatment, during the past 12 months.
Mr Kapur agreed that the Registrar, in the letter of suspension, did not refer to the word “controlled” inserted with the diagnosis of narcolepsy made by Dr. F., whereas the report form also includes an optional diagnosis of “Narcolepsy-Uncontrolled” which was not checked.
Evidence by the Appellant
In her reasons for appeal, the Appellant stated as follows:
The criteria for the suspension do not take into account the variable levels that exist with the condition and the symptoms of Narcolepsy.
Her reported cataplexy to the specialist was very mild and only affected facial muscles for the most part
She has never experienced a sleep attack, which has a very low level of occurrence among individuals diagnosed, according to extensive (literature) research by her.
Her specialist has reported excellent compliance and response to the medication prescribed, with no episode of cataplexy, since January 2016 when medication was commenced.
She informed the Tribunal that in September 2015, she was seen by her family physician regarding facial muscle spasms.
Her doctor arranged for a sleep study which was performed on October 18, 2015 and a MRI test was done on October 29, 2016. She was seen by Dr. F. in January 2016 and was started the same day on Effexor 37.5 mg daily for cataplexy. She was also started on Vyvance 30 mg daily.
Upon questioning by Mr. Kapur, the Appellant stated that Effexor was to prevent daytime drowsiness and to help her sleep better. The Vyvance is a stimulant to give her more energy and to avoid tiredness, which contributes to cataplexy.
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 within her ability to drive a motor vehicle safely?
LAW
O. Reg. 340/94 (the “Regulation”), section 14(1), 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.
Section 47(1)(g) of the Act gives the Registrar the power to suspend or cancel a driver’s licence for any “sufficient reason” not referred to elsewhere in s. 47(1), which would include section 14(1) of the Regulation, cited above.
Section 50 of the Act permits the driver to appeal the Registrar’s section 47 decision to the Tribunal, and the Tribunal “may confirm, modify or set aside the decision of the Minister or the Registrar:
Submissions by the Parties
Mr. Kapur, on behalf of the Registrar, submitted that the report of narcolepsy received by the Registrar in compliance with section 203 of the Act, authorized the suspension of the driving privilege under section 47(1)(b)(g) of the Act.
The Registrar relies on the CCMTA Guideline 18.6.2 which states:
The driver is eligible for a licence if:
There have been no daytime sleep attacks, with or without treatment, during the past 12 months
There have been no reported episodes of cataplexy, with or without treatment, during the past 12 months.
The Appellant points out that the Guidelines under the CCMTA for drivers with narcolepsy, are not rules to be rigidly applied. She also submitted that the Licence Appeal Tribunal Decision, 9459 v. Registrar of Motor Vehicles, on April 22, 2015 set aside a suspension in a similar situation.
She noted that the specialist had a duty to report the diagnosis of narcolepsy under section 203 of the Act, if his patient’s condition, “may make it dangerous for the person to operate a motor vehicle”. This is not to say that her condition does in fact make her dangerous to drive.
She acknowledged that the Registrar has a responsibility for public safety when making a decision to suspend a driver, when in receipt of a medical condition report.
The specialist, in response to the Registrar’s requirements, stated on May 12, 2016 that her condition was stable, and had “excellent response to treatment with excellent cataplexy prevention in any situation, on the medication, Effexor”.
She notes that it is now ten months since the last episode of cataplexy and that she is compliant with the treatment regimen and that she has never had a daytime narcoleptic episode.
APPLICATION OF THE LAW TO FACTS
The Tribunal has carefully reviewed the evidence and submissions, and the relevant law and Guidelines.
The Registrar was justified in issuing a suspension under section 47(1) of the Act upon receiving the Medical Condition Report of controlled narcolepsy, made in compliance with section 203 without further details, as were contained in the Sleep Disorders and Narcolepsy Report on May 12, 2016.
The diagnosis of controlled narcolepsy was reported to the Registrar four months following the diagnosis and commencement of treatment. Although the condition reported was controlled narcolepsy, the evidence was that the Appellant did not have daytime drowsiness and that the condition that was brought to her physician’s attention, was facial twitching or spasms (cataplexy). There is no evidence that the Appellant has ever experienced a sleep attack, and there have been no episodes of cataplexy since the Appellant started treatment.
In retrospect, it is questionable if in fact the physician was mandated under section 203 to make the report of a condition that responded so quickly and so completely, four months in advance of completing the report, according to the medical evidence.
The Appellant is compliant with the treatment regimen and has not demonstrated a pattern of non-compliance. Furthermore, her treating specialist has stated on the May 12, 2016 report that the current medication regimen does not result in any side effects to an extent that may impair the Appellant’s ability to safely operate a motor vehicle.
Weighing all the evidence, the Tribunal finds on a balance of probabilities that the Appellant is not suffering from a condition which is likely to significantly interfere with her ability to operate a motor vehicle safely.
DECISION
Upon the Appellant’s appeal of the Registrar’s decision 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
Kevin Flynn, M.D., Presiding Member
Released: November 2, 2016