S.K. v. Registrar of Motor Vehicles, 2017 CanLII 148434

S.K. v. Registrar of Motor Vehicles

Date: 2017-02-15

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

Between:

S.K.

Appellant

and

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR: Katherine Whitehead, M.D., Member

APPEARANCES:

For the Appellant: S.K.

Representative for the Appellant: (unlicensed, family member)

For the Respondent: Sanjay Kapur, Agent

Heard by teleconference: February 1, 2017

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"). For the reasons provided below, the Tribunal confirms the Registrar's decision to suspend the Appellant's driver's licence.

OVERVIEW

The Appellant was involved in a motor vehicle collision ("MVC"). The attending officer at the scene filed a "Request for Licence Review Form", indicating that the driver lost consciousness, which was sent to the Ministry of Transportation (the "Ministry"). The Ministry notified the Appellant that they were suspending his licence for medical reasons, and imposed a number of pre-conditions for the reinstatement of his licence. The Appellant appealed the suspension to the Tribunal.

ISSUES

Should the decision of the Registrar to suspend the Appellant's licence be confirmed, modified or set aside?

In particular: Is the Appellant suffering from a condition or disability that is likely to significantly interfere with his ability to drive a motor vehicle safely?

PRELIMINARY MATTERS

The Appellant's Representative asked that the Occupational Therapist (OT) report of May 9, 2016 and communication from the Ministry that followed the report not be included for consideration during the hearing. He said that the report was not relevant to the current case, but that the contents may be prejudicial because they spoke of medical conditions that the Appellant may or may not have which may influence the Tribunal's decision about the current case.

The Tribunal asked the Respondent if they were willing to proceed without those documents. The Respondent declined to do this. The Respondent told the Tribunal that they planned to rely on the report in their arguments and were not prepared to proceed without them.

The Tribunal advised the parties that it is able to weigh the relevance of all testimony and submissions and is able to disregard that which it does not find relevant to the current case and that if the document's relevance did not warrant consideration then the Tribunal would not consider them.

As an alternative, an adjournment was offered to the parties in order to further clarify the submissions. It was made clear that a new hearing date could be made available within one week.

After considering this, the parties confirmed that they were willing to proceed with the hearing and the OT report and following communication could be included for consideration.

FACTS

On September 8, 2015, the Appellant was involved in a motor vehicle collision (MVC) while riding his motorcycle.

An officer with the Ontario Provincial Police filled a Motor Vehicle Collision Report. The report contained the following information:

• The name and badge number of the investigating officer.
• The name, address, date of birth, and driver's licence number of the Appellant
• The name of the hospital that the Appellant was taken to from the accident.
• Comments on the mechanism of the accident, including that "D1 blacked out due to unknown medical reasons and wiped out. V1 slides on the left shoulder and D1 rolls onto the right embarkment."

The same officer filled a "Request for Driver's Licence Review" form. The form reported the following information:

• The same Police Occurrence Number and Investigating Officer badge number as was found on the Motor Vehicle Collision Report.
• The same demographic information for the Appellant as was found on the Motor Vehicle Collision Report.
• In section B "Investigation of the above incident indicated that the driver may not be able to safely operate a motor vehicle due to:", the box for "loss of consciousness/black out" was checked.
• In section C was typed "...driver indicated to the officer that he may of blacked out while riding his motorcycle because he couldn't remember how he wiped out. The officer spoke with the ER doctor regarding the incident and Dr. J.D. advised the officer that he will seize his licence due to safety concerns"

The boxes for "name of Investigating Officer's Supervisor" and "Signature of Investigating Officer's Supervisor" were blank.

On September 17, 2015 Dr. H., an orthopedic surgeon, filled a medical certificate for employment and insurance sickness benefits. This indicated that the Appellant was unable to work due to a leg fracture requiring surgery.

On October 20, 2015 the Ministry sent the Appellant a letter informing him that it had decided to suspend his licence because of the reported condition of "Syncope/Loss of Consciousness". The Ministry informed the Appellant that he was required to provide the following information from his specialist, physician, or nurse practitioner if he wished to be considered for re-instatement:

• A description of this and any previous history
• Confirmation that the cause has been determined and successfully treated
• Date of the last episode(s)

The Ministry also sent a "Syncope/Loss of Consciousness" form to be filled by his medical practitioner.

On March 16, 2016, Dr. R., an orthopedic surgeon, filled a form stating that the Appellant was able to return to regular duties/activities.

The OT report from May 9, 2016 was largely focused on the musculoskeletal injuries that the Appellant sustained as a result of his accident.

The Appellant's Submissions

The Appellant's Representative told the Tribunal the following:

• The Appellant has been employed as a commercial long distance truck driver for many years without incident. A letter from his employer was submitted confirming his competent fulfillment of work requirements, also stating "we have great trust in [The Appellant] that he would disqualify himself from transport driving given that health was in fact a concern"
• On the day of the 2015 MVC, the Appellant had been under stress from the accident and had not been clear in what he was saying to the OPP officer and had used a "mistaken word".
• The Appellant said that the information provided by the OPP officer to Dr. J.D. was not sufficient grounds to suspend his licence. He said it was based on information from too brief an encounter with the OPP officer and on the advice of Dr. J.D. (who never examined him and only spoke to the OPP officer on the phone). He felt it was a case of a "police officer making a diagnosis".
• The Appellant does not feel he suffered syncope or loss of consciousness.
• The Appellant said that a witness (who was not called at the hearing to give testimony) said he "lost control of his bike".
• The Appellant noted that the Ministry made no effort to contact Dr. J.D. or the paramedics that attended the accident to clarify the facts of the accident but rather suspended his license based on the assessment of the OPP officer alone.
• The Appellant questioned why the Request for Driver's Licence Review form was not signed by the investigating officer's supervisor and questioned the completeness of the form since it did not mention his other injuries in addition to the possible loss of consciousness.
• The Appellant did not have the Syncope/Loss of Consciousness form filled by a medical practitioner as he did not feel he had the condition. He felt it would be impossible to have the form filled out as the form pre-supposed that he had a condition that he did not have. He also felt it would prejudice his position to have a form filled out for a condition that he did not have.
• Dr. R. had assessed him as being ready to return to work, indicating that he had no further significant health problems.
• The Appellant is now unable to work due to his licence suspension and is in a state of great financial stress.

THE RESPONDENT'S RESPONSE

The Respondent stated the following in response to the Appellant's submissions:

• The OPP are able to submit a Request for Driver's Licence Review to the Ministry and the Ministry is able to suspend the licence with no further information as it sees fit.
• Loss of consciousness is a common reason for an immediate suspension and so it was not unusual that the licence was suspended based on the information provided.
• The purpose of the request for further medical information and the Syncope/Loss of Consciousness form were to clarify the medical information and help determine if the continued suspension was warranted. It is not the practice of the Ministry to independently solicit the opinions of medical professionals but rather to have the driver submit the medical information to the Ministry.
• Although the Syncope/Loss of Consciousness form is geared toward people who have his condition, there is a box in section 1-H where it is possible for a health care practitioner to check "other" and provide other relevant details in part 4.
• The Respondent has commonly encountered completed forms that state that patients do not have the condition that the form is intended for and provide explanation to why this is so.
• The Appellant was admitted to hospital and attended a rehab facility after his accident (this basic information was reported on the OT assessment and confirmed by the Appellant) and was presumably assessed by multiple medical professionals, some of whom he could have asked to fill his form or provide the information that the Ministry had requested.
• The form filled by the Orthopedic Surgeon did not address the cause of the accident and any possible loss of consciousness. The form filled by the Orthopedic Surgeon was intended to address the injuries sustained after the accident and thus the assessment was not sufficient to address the question of the possible loss of consciousness.
• The Respondent could not comment on why certain sections of the Request for Driver's Licence Review form were left blank but felt that the intent of the form was clear and the information contained therein was valid.
• The Respondent offered to adjourn the hearing and call the officer as a witness (the Appellant chose to continue with the hearing).

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 14(2) of the Regulation permits the Minister to take into consideration the CCMTA Medical Standards for Drivers in determining whether the requirements of s. 14(1) are met.

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."

APPLICATION OF THE LAW TO FACTS

The Tribunal states at the outset that it will not consider the musculoskeletal injuries sustained during the MVC or any resultant disability as germane to this appeal.

The possible loss of consciousness was the reason for the licence suspension. While further information may have come to the Ministry in the course of its investigation, the issue of musculoskeletal injury does not appear to be a basis for the suspension. The Tribunal will only consider whether or not there is sufficient evidence to suspend the licence based on the possible loss of consciousness.

The OT report did not comment on anything relevant to the possible loss of consciousness. The focus of the OT assessment was on the injuries sustained after the accident. For that reason, the report is given no weight in this appeal.

Similarly, the assessments from the Orthopedic Surgeons seem focused on the injuries sustained after the accident. There is little information contained in the forms from Dr.'s R. and H. and given their specialties (Orthopedics), it is reasonable to assume that their assessments for fitness to work do not include an assessment of the possible loss of consciousness. For this reason, their assessments are given no weight in this appeal.

The test for a licence suspension is whether a person suffers from a condition likely to significantly interfere with their ability to drive safely.

The Ministry suspended the licence based on a possible loss of consciousness. Loss of consciousness while driving poses a clear risk to drivers and the public. If a loss of consciousness occurs, the Ministry considers how likely it is to re-occur while driving and from that decides whether continued suspension of the driving privilege is warranted. In order to provide the information to make this determination, a person suffering loss of consciousness is assessed by a medical professional. Part of that assessment is to determine if that loss of consciousness actually occurred and, if so, from what cause. Some causes are unlikely to recur or can be treated while others pose more of a danger. If a loss of consciousness occurs and no further information is available, the Tribunal finds that the risk of recurrence cannot be mitigated and is assumed to remain. In other words, if it is found that the appellant did lose consciousness while driving, given that there is no additional information, the Tribunal will find that the driver has a condition likely to significantly interfere with his ability to drive safely.

The Appellant argues that he did not suffer from syncope/loss of consciousness during his accident. The Tribunal notes that he has not provided any other clear reason that the accident occurred. The Appellant himself did not give testimony about the accident during the hearing. The events were summarized by his Representative and did not directly account for the cause.

The Tribunal accepts that the OPP officer's report is given in good faith. The Appellant drew attention to parts of the forms that were not filled and questioned the validity of the forms. The Tribunal finds that the forms correctly identify the Appellant, the officer, and the incident in question. The intended meaning of the form is clear. The Tribunal is persuaded by the information contained on the forms filled by the OPP officer who attended the accident.

In the comment section the officer wrote "driver indicated to the officer that he may of, blacked out while riding his motorcycle". This implies that "blacking out" was a spontaneous report from the Appellant.

The Appellant's Representative stated that the Appellant now does not think that he lost consciousness but rather simply lost control of the bike.

The comment from the officer continues "because he couldn't remember how he wiped out."

This implies that the Appellant, at the least, has amnesia to the events leading up to the MVC.

Given that the Appellant told the officer that he may have lost consciousness at the time of the accident and there was no other specific explanation for the cause of the accident given (other than the Appellant's non-specific after the fact recall of the event) then or at the hearing the Tribunal finds on the balance of probabilities that the loss of consciousness/syncope occurred. There has been no further medical evidence provided from the time of the accident and thus it is not possible to clarify the risk.

The Tribunal finds that it more likely than not the Appellant suffered a loss of consciousness and this caused his MVC. In the absence of further medical evidence, the Tribunal finds that the risk of recurrence while driving remains.

DECISION

Upon the appeal of the Registrar's decision effective October 30, 2015 to suspend the Appellant's driver's licence pursuant to section 47(1) of the Act, and having considered the evidence before 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: February 15, 2017