L.P. v. Registrar of Motor Vehicles, 2018 CanLII 52301

Licence Appeal Tribunal

Date: 2018-04-10

Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8, from a decision of the Registrar of Motor Vehicles to suspend a driver’s licence under subsection 47(1) of the Act

Between:

L.P. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Dr. Peter Savage, Member Joanne E. Foot, Member

Observing: Dr. Erica Weinberg

Appearances: For the Appellant: L.P., Self-represented For the Respondent: Kyle Biel, Agent

Place and date(s) of hearing: By Teleconference March 21, 2018

REASONS FOR DECISION AND ORDER:

A. Overview

1The appellant is a 48-year-old woman whose driver’s licence was suspended after an emergency room physician filed a medical report with the Registrar of Motor Vehicles (“the Registrar”), pursuant to section 203 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (“the HTA”). This provision requires all medical practitioners to report any person older than sixteen who is suffering from a condition which may make it dangerous for the person to drive. The report indicated loss of consciousness, loss of awareness, cervical disc problems, and syncope. As a result of the report, the Registrar suspended the appellant’s driver’s licence under s. 47(1) of the HTA, effective January 13, 2018.

2The question for our determination is whether the appellant suffers from a mental or physical condition that is likely to significantly interfere with her ability to drive safely.

3For the reasons set out below, we find that the appellant does not suffer from a mental or physical condition to an extent that is likely to significantly interfere with her ability to drive safely.

4For these reasons, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

B. PRELIMINARY ISSUES

5The Registrar’s Agent (“the Agent”) raised a preliminary issue relating to whether further information requested by the Registrar prior to the hearing would be provided at the hearing. The appellant indicated that she had taken steps to obtain further information but had not yet received the information in a form that could be submitted to the Tribunal. The Tribunal queried whether the appellant wished to proceed with the hearing in the absence of such further information. L.P. confirmed that she was prepared to proceed. The Agent concurred in this approach.

C. ISSUES

6The issue in this appeal is whether the appellant suffers from a mental or physical condition that is likely to significantly interfere with her ability to drive safely.

7To answer that question, we will address the following issues:

a. Does the appellant have a mental or physical condition?

b. Is the appellant’s mental or physical condition, if any, likely to significantly interfere with her ability to drive safely?

D. LAW

8The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence for any of the grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (d), (e) and (f) relate to misconduct, convictions and commercial motor vehicles respectively. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

9One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition or disability likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/9,4 (the “Regulation”) under the HTA 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;

10According to s. 14(2)(a) of the Regulation, if the Minister of Transportation is determining whether the requirements of s. 14(1) are met, the Minister may take into consideration the Canadian Council of Motor Transport Administrators (“CCMTA”) Medical Standards for Drivers. Similarly, the Tribunal may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.

11The Registrar has the burden to establish the grounds for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the decision or order of the Registrar.

E. ANALYSIS

12The documentary evidence in this case comprises:

a. the Medical Report form dated December 29, 2017 completed by Dr. A.S., an emergency room doctor;

b. the Musculoskeletal Condition/Motor Function Ability Impairment form (the “Motor Function Form”) dated January 22, 2018, completed by Dr. N.H., the appellant’s family doctor of approximately 13 years;

c. the Notice of Appeal dated February 6, 2018; and

d. the Syncope/Loss of Consciousness form dated February 19, 2018, also completed by Dr. N.H.

In addition, the affirmed testimony of Ms. L.P. was received by the Tribunal.

13The Motor Function Form indicated that the appellant suffers from chronic disc disease and degeneration. This was confirmed by the appellant in the Notice of Appeal and in her oral testimony. Further, as set out in the Motor Function Form, the Notice of Appeal and confirmed by oral testimony, the condition causes periodic numbness and tingling in her neck and scalp.

14The appellant testified that these symptoms generally occur when she has overextended herself physically and that the symptoms usually subside if she rests. Prior to her emergency room visit on December 29, 2017, L.P. had been experiencing these symptoms for about two days, considerably longer than usual. In addition, she felt feverish and dizzy at this time. The appellant was concerned about the additional symptoms testifying that she was nervous, anxious and home alone. She attended the emergency room to put her mind at ease.

15The appellant testified that on the day following her emergency room visit, it became clear to her that she was suffering from a gastro-intestinal infection that caused nausea and diarrhea. She believes this to be the cause of the additional symptoms that led her to go to the emergency room. The fever, dizziness, nausea, diarrhea, as well as the numbness and tingling, resolved within a couple of days. The appellant testified that she was well enough to go out on New Year’s Eve.

a. Does the appellant suffer from a physical or mental condition?

Motor Function/Ability Impaired

16In the Medical Report dated December 29, 2017, Dr. A.S., the emergency room doctor, under the “Other” section indicated “cervical disc problem?” There is nothing further in the form that explains his apparent query indicated by the question mark.

17In the Motor Function Form, Dr. N.H. ticked the box “Other” and described the condition as cervical disc disease and degeneration. He further described the condition as progressive but noted that the condition had not worsened in the past three years. Dr. N.H. also ticked the “No” box as to whether “this is a significant condition that may impair the patient’s ability to operate a vehicle”. He further indicated that neither a road test nor a functional assessment was recommended.

18The appellant testified that she routinely drives significant distances for work and that the cervical disc condition does not affect her ability to do so.

19The Agent did not present any evidence and made no submissions that the appellant’s cervical disc disease impaired the appellant’s ability to operate a vehicle.

20Because there is no evidence on this point, we find that the appellant’s cervical disc disease does not impair the appellant’s ability to operate a vehicle.

Syncope/Loss of Consciousness

21In the Medical Report dated December 29, 2017 Dr. A.S. ticked the box for “Blackout or Loss of Consciousness or Awareness”. He circled “Loss of Consciousness” and “Awareness”, but not “Blackout”. In the portion of the form for “Other”, Dr. A.S. added the word “Syncope”. In the Optional portion of the form, Dr. A.S. wrote “Pt. has this problems [sic] for years, refers to me to put her on welfare. She is concerned she may pass out while driving, ADL”.

22The appellant testified that her family doctor referred her to Dr. S., a neurologist, after the incident giving rise to the suspension of her driver’s licence. Unfortunately, there was no report from the neurologist in the material before us. However, the appellant testified about her visit with the neurologist. She indicated that she went through a series of tests in the neurologist’s office and that Dr. S. did not send her for further tests, being of the view that this was unnecessary as she detected no deficits in function.

23L.P. indicated that she believed the neurologist would send a letter to her family doctor. This appears to be the case as Dr. N.H. referred to the neurologist’s report in the Motor Function Form where he wrote “This patient has been seen by Neurologist recommending reinstatement of licence”.

24Based on this evidence, we accept that the consultation with the neurologist occurred and that the neurologist did not detect any reason for concern in relation to the appellant.

25The appellant’s family doctor also submitted a Syncope/Loss of Consciousness form to the Ministry. In this form, Dr. N.H. did not tick any of the boxes. In Part 4, the Additional Comments section of the form, Dr. N.H. wrote “This patient did not have syncope/loss of consciousness.”

26The Agent objected to the manner in which Dr. N.H. completed the Syncope/Loss of Consciousness form, having ticked none of the boxes. Upon a careful examination of the form, we note that the portions of the form Dr. N.H. left uncompleted are relevant only if the patient has experienced syncope or a similar event. Given that the Ministry required completion and submission of the form, and Dr. N.H.’s view that the appellant had not suffered syncope, the manner in which Dr. N.H. completed the form is, in our view, appropriate and we are prepared to give full weight to this evidence.

27The appellant testified that she did not faint or suffer a loss of consciousness while at the emergency room on December 29, 2017. She further testified that she had never, in her life, fainted or suffered a loss of consciousness. The appellant’s oral evidence was consistent and supported in all respects by that of her family doctor. Her manner was forthright and candid and her evidence is credible.

28The evidence in the Medical Report that the appellant had suffered a loss of consciousness or similar event is in direct conflict with the other evidence before the Tribunal. In particular, the Motor Function form includes a statement that the appellant has been seen by a neurologist who supports reinstatement of her driver’s licence and the Syncope/Loss of Consciousness states that L.P. had not experienced syncope. In addition, the applicant testified and denied having suffered syncope, loss of consciousness or loss of awareness.

29We prefer the evidence of Dr. N.H., a physician who knows the appellant well and Dr. S., a specialist in this area. We also found the appellant credible and consistent on this point.

30We find, therefore, that the appellant did not suffer loss of consciousness, loss of awareness or syncope on December 29, 2017.

31We further find that the appellant does not suffer from a mental or physical condition that may affect her ability to operate a motor vehicle.

b. Is the appellant’s physical or mental condition, if any, likely to significantly interfere with her ability to drive safely?

32Having found that the appellant does not suffer from a mental or physical condition, it is not necessary to consider this issue.

33After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant does not suffer from a physical or mental condition that is likely to interfere significantly with her ability to drive a motor vehicle safely.

F. ORDER:

34For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the Appellant’s driver’s licence is set aside.