LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017-06-16

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:

Appellant Appellant

and

Registrar of Motor Vehicles Respondent

RECONSIDERATION DECISION

Before: Linda P. Lamoureux, Executive Chair

Written Submissions By:

For the Appellant: Self-Represented and K.G., Family Member

For the Respondent: n/a

Date of Order: June 15, 2017

OVERVIEW

1On February 15, 2017, the Licence Appeal Tribunal (the “Tribunal”) issued its decision in 10589 v. Registrar of Motor Vehicles confirming the suspension of the Appellant’s driver’s licence for medical reasons. The Appellant requests a reconsideration of the Tribunal’s decision pursuant to Rule 18 of the Licence Appeal Tribunal (LAT) Rules of Practice and Procedure, Version 1 (April 1, 2016) (the “Rules”).

2The Appellant also requests that the Tribunal make certain amendments to its decision pursuant to Rule 17. I have considered the Appellant’s request for an amendment as part of the Appellant’s request for reconsideration, as the Appellant is essentially arguing that the Tribunal made certain errors of fact.

3For the reasons that follow, I dismiss the Appellant’s request for reconsideration and request for an amendment.

BACKGROUND

4On September 8, 2015, the Appellant was involved in a motor vehicle collision while riding his motorcycle. A police officer filed a Motor Vehicle Collision Report and a Request for Driver’s Licence Review form. The officer indicated on those forms that:

• The Appellant blacked out due to unknown medical reasons and “wiped out”.
• An investigation of the incident indicated that the Appellant may not be able to safely operate a motor vehicle due to “loss of consciousness/black out”.
• The Appellant indicated to the officer that he may have 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, who advised the officer that he would seize the Appellant’s licence due to safety concerns.

5On October 20, 2015, the Registrar of Motor Vehicles (the “Registrar” or “Respondent”) advised the Appellant that the Registrar had decided to suspend his driver’s licence because of the reported condition of “Syncope/Loss of Consciousness”. Syncope is a partial or complete loss of consciousness, usually resulting from a temporary reduction in blood flow to the brain, commonly referred to as fainting. The Registrar provided the Appellant with a Syncope/Loss of Consciousness form to be filled out by his medical practitioner.

6The Appellant appealed the Registrar’s decision to suspend his licence to the Tribunal pursuant to section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”). The Tribunal received the Appellant’s Notice of Appeal on January 3, 2017. The appeal was heard by teleconference on February 1, 2017. As required by the Licence Appeal Tribunal Act, 1999, S.O. 1999, c. 12, Sch. G, the hearing was conducted by a member of the Tribunal who is a legally qualified medical practitioner (the “adjudicator”).

7At the hearing, the Appellant was represented by a family member. The representative submitted that the Appellant does not believe that he suffered syncope or loss of consciousness. Rather, he submitted, the Appellant was under stress following the accident and used a “mistaken word” with the officer at the scene. The Appellant’s representative stated that the Appellant did not have the Syncope/Loss of Consciousness form filled out by his medical practitioner, as he did not feel he had that condition and that the form presupposed that he had that condition.

8On February 15, 2017, the Tribunal issued its decision confirming the suspension of the Appellant’s driver’s licence pursuant to s. 50(2) of the HTA. The adjudicator was satisfied based on the evidence that the Appellant lost consciousness at the time of the accident. She preferred the documentary evidence that the Appellant told a police officer after the accident that he may have blacked out to the statement from the Appellant’s representative at the hearing that the Appellant now does not think he lost consciousness. As the Appellant did not provide any subsequent medical evidence, the adjudicator found that the risk of recurrence while driving remains.

9The Appellant filed a Rule 17 request for review and correction with the Tribunal on March 10, 2017. He filed a Rule 18 request for reconsideration on March 13, 2017, after the 21-day period to request reconsideration had expired. On March 21, 2017, the Tribunal requested that the Respondent make any submissions on this request for reconsideration by April 4, 2017. The Tribunal has not received any submissions from the Respondent.

10The Appellant makes a number of submissions, which may be summarized as follows:

• The adjudicator reversed the burden of proof by placing the burden on the Appellant to prove that no loss of consciousness occurred.
• There is new medical evidence, namely a Syncope/Loss of Consciousness form completed by a medical professional on March 9, 2017, which states that the Appellant has not had an episode of syncope.
• The processes of the Tribunal and the Ministry of Transportation are unfair and the Appellant has a right to earn a living without unnecessary obstruction.

11The Appellant seeks costs pursuant to Rule 19.

ISSUES

12The following are the issues to be determined:

1. Should the 21-day period to request reconsideration be extended?
2. Did the Tribunal reverse the onus of proof and thereby make a significant error of fact and law such that the Tribunal would likely have reached a different decision?
3. Is there new evidence that could not reasonably have been obtained earlier and would have affected the result?
4. Are any of the other grounds for reconsideration made out?
5. Should the Appellant’s request for costs be granted?

LAW

13Rule 18.2 states that the Executive Chair will not grant a request for reconsideration unless one or more of the following criteria are met:

a. The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness; b. The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision; c. The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or d. There is new evidence that could not have reasonably been obtained earlier and would have affected the result.

14As stated in Rule 18.4, upon consideration of a request for reconsideration, the Executive Chair may:

a. Dismiss the request; or b. After providing all parties an opportunity to make submissions, i. Confirm, vary, or cancel the decision or order; or ii. Order a rehearing on all or part of the matter.

15Rule 18.1 states that a request for reconsideration is to be made within 21 days of the date of the decision. Rule 3.1 states that the Rules will be liberally interpreted and applied, and they may be varied or applied on the Tribunal’s own initiative, or at the request of a party, to:

a. Facilitate a fair, open and accessible process and to allow effective participation by all parties, whether they are self-represented or have a representative; and b. Ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.

16Rule 17 permits the Tribunal to review its decision and correct typographical, calculation and other minor errors. Rule 17 states that the Tribunal may at any time:

a. Correct a typographical error, an error of calculation or similar error in its order or decision; b. Clarify an order or decision that contains a misstatement or ambiguity, which is not substantive and does not change the order or decision.

ANALYSIS

1. Extension of Time

17The Appellant’s request for reconsideration was filed on March 13, 2017, which is five days after the end of the 21-day period to request reconsideration of the Tribunal’s decision, which was issued on February 15, 2017. The Respondent has not raised any objection to granting an extension of time, not having made any submissions on this request, despite being provided with an opportunity to do so.

18In order to facilitate an open and accessible process and a fair and timely resolution on the merits, I have decided to extend the 21-day time limit in this case. Given the importance of this issue to the Appellant, it is best to deal with the substance of this request for reconsideration, rather than dispose of it based on the expiry of a time limit.

2. Did the Tribunal reverse the burden of proof?

19The Appellant submits that the Tribunal erred by reversing the burden of proof. He submits that the adjudicator put the burden on the Appellant to prove that no loss of consciousness occurred.

20The Appellant is correct that the Registrar has the burden to prove that the Appellant’s licence should remain suspended. The Registrar must establish on a balance of probabilities that the Appellant has a medical condition or disability likely to significantly interfere with his ability to drive safely. However, as set out below, I find that the Tribunal did not reverse the burden of proof in this case. Accordingly, I am not satisfied that the Tribunal made an error of fact or law such that the Tribunal would likely have reached a different decision.

21The Respondent led evidence that the Appellant stated to a police officer immediately after the accident that he may have blacked out and that he did not recall how the accident occurred. Such a statement so close in time to the accident is sufficient evidence to make a finding on a balance of probabilities that the Appellant lost consciousness for an unexplained medical reason that was likely to significantly interfere with his ability to drive safely.

22Once this evidence was led, the Appellant was entitled to explain it, challenge it or to lead evidence to the contrary. This does not amount to a reversal of the burden of proof. Rather, it is his opportunity to provide evidence that could lead the Tribunal not to accept the police reports as evidence that the loss of consciousness occurred. The adjudicator considered the Appellant’s submission that he was mistaken and under stress when he said, he may have blacked out. It was open to her to find that the statement the Appellant made against his interest at the time of the accident was more reliable than an assertion 17 months after the fact that he was mistaken.

23In his Rule 17 request, the Appellant contests the accuracy of statements in the Tribunal’s reasons that he did not testify about the accident or provide any clear reason why the accident occurred, other than loss of consciousness. The Appellant submits that he was available to be questioned throughout the hearing. I will note that although it is the Respondent who bears the burden of proof, it is the Appellant’s responsibility to put before the Tribunal any evidence that he wants the Tribunal to consider in rendering its decision.

24While the Appellant bears no burden of proof, it might have been useful to his case had he completed the Syncope/Loss of Consciousness Form as requested by the Ministry of Transportation. His assertion that he did not believe he lost consciousness would have been more reliable had it been supported by an assessment from a medical practitioner that spoke to his medical history and the results of any applicable tests. However, in the face of evidence that he had self-reported a blackout, there was nothing to help the Tribunal understand and put into context the evidence before it.

25In the circumstances of this case, it was open to the adjudicator to find, based on the evidence available, the Appellant suffered a loss of consciousness that was likely to interfere with his ability to drive safely. She did not reverse the burden of proof in doing so.

3. Is there new evidence that could not reasonably have been obtained earlier and would have affected the result?

26The Appellant has submitted the Syncope/Loss of Consciousness form, completed by Dr. Y., the Appellant’s family physician, on March 9, 2017 (three weeks after the release of the decision) for consideration as new evidence.

27In order to grant a request for reconsideration based on new evidence, I need to be satisfied both that the evidence could not have reasonably been obtained earlier and that it would have affected the result.

28I am certainly not satisfied that this evidence could not have reasonably been obtained earlier. The evidence at the hearing was that the Registrar provided the Syncope/Loss of Consciousness form to the Appellant on October 20, 2015. The Appellant did not fill out the form prior to the hearing, which took place on February 1, 2017. I do not accept that the Appellant could not reasonably have had this form filled out prior to the hearing.

29The Appellant alleges in his Rule 17 request that the adjudicator misstated the reasons why the Appellant did not have the Syncope/Loss of Consciousness form filled out. The decision states that the Appellant did not fill out the form because it pre-supposed a condition that he did not have. The Appellant submits that he told the adjudicator that he had presented the form to various medical practitioners. Even if the Appellant had attempted to have the form filled out, I cannot accept that it was impossible to have the form filled out for over a year in light of the fact that he managed to do so three weeks after the hearing.

30I would also note that the form submitted by the Appellant appears to have been filled out by a physician with no history with the Appellant – the form is dated March 9, 2017 and indicates that the physician has been involved in the ongoing management of the patient since March 2017. The form does not refer to his medical history or any testing that might have occurred. It simply repeats the Appellant’s argument, stating:

The ‘syncopal’ episode appears to have been a misunderstanding. [The Appellant] remembers his fall off the vehicle & remembers escaping to safety at the side of the road. He denies ever having had a syncopal episode in his life before or since the [motor vehicle accident].

31Accordingly, I am not satisfied that this new evidence, which is based on what the Appellant told a physician with no knowledge of his medical history, would likely have affected the result.

4. Other issues

32The Appellant expresses frustration that the processes of the Tribunal and the Ministry of Transportation are difficult to navigate. I understand the Appellant’s frustration, as administrative processes can often be confusing. However, the Appellant was in a position to put his case forward to the Tribunal, to challenge the evidence of the Registrar and to present any evidence he wished to call. Accordingly, in the circumstances of this case, I am not satisfied that there was a breach of procedural fairness or natural justice.

33The Appellant also feels that he should be allowed his right as a Canadian citizen to earn a living without unwarranted or unnecessary obstruction. I understand that loss of income is often an unfortunate consequence of a licence suspension. However, the Tribunal found that he had a medical condition that is likely to significantly interfere with the ability to drive safely. As a result, the suspension of his licence is a necessary measure to ensure road safety.

5. Costs

34The Appellant has requested costs pursuant to Rule 19. Given the circumstances, I find that there is no basis for an award of costs.

ORDER

35Upon consideration of the submissions of the Appellant, and having provided an opportunity to the Respondent to make submissions, I dismiss the Appellant’s request for reconsideration. I also dismiss his request for an amendment.