Date: 2020-02-14

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:

John Bilanzola

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicators: Dr. Erica Weinberg, Member Harriet Lewis, Member

Appearances:

For the Appellant: John Bilanzola, self-represented

For the Respondent: Stella Velocci, agent

Heard by Teleconference: January 17, 2020

Overview:

1Mr. Bilanzola is appealing a decision made by the Registrar, Motor Vehicles (“the Registrar”), suspending his driving licence, effective June 10, 2018. The initial decision to suspend the appellant’s licence was based on two separate unsolicited reports received days apart. The first report from the regional police service, indicated that Mr. Bilanzola was reported to be driving erratically, possibly for medical reasons. The second report indicated that he had poorly controlled diabetes. Less than two months later and while his driver’s licence was already suspended, the Registrar received another unsolicited medical report stating that Mr. Bilanzola had suffered a stroke. We outline these incidents below.

2On May 21, 2018 a regional police service submitted to the Registrar, a Request for Drivers Licence Review for Mr. Bilanzola. This report recorded a complaint from a witness who saw Mr. Bilanzola driving erratically that day. The complaint alleged that Mr. Bilanzola struck a curb twice, ran through a stop sign and stopped in the middle of an intersection.

3The police attended at the scene and found Mr. Bilanzola confused and slurring his speech. He required assistance to stand up and walk to the back of the vehicle. After arresting Mr. Bilanzola for impaired driving, he was tested by a drug recognition expert who determined that his impairment was caused for other medical reasons.

4On May 23, 2018 the Registrar received an unsolicited Medical Condition Report (“MCR”) from Emergency Room doctor, Dr. F. Pursuant to s. 203 of the Highway Traffic Act (“the Act”). Section 203 requires certain prescribed person to report to the Registrar any person 16 years of age or older who has or appears to have a prescribed medical condition, functional impairment or visual impairment that may make it dangerous for the person to drive.

5The MCR, based on the examination date of May 22, 2018, stated that Mr. Bilanzola was suffering from diabetes or hypoglycemia – uncontrolled. In the optional section of the MCR, Dr. F. wrote that Mr. Bilanzola has poor self care and medications administration including insulin, has history of repeated hyperglycemic episodes, loss of consciousness and fall(s), and was found to have high blood sugar on this admission.

6On June 25, 2018 Mr. Bilanzola suffered a cerebellar stroke.

7By letter dated January 11, 2019, treating neurologist, Dr. O. stated that Mr. Bilanzola had complete recovery from his stroke and was ready to resume operating a motor vehicle.

8On April 8, 2019 Mr. Bilanzola had a functional driving assessment at an approved centre but did not meet the required standard for licencing.

9By letter dated August 21, 2019, Dr. O. stated that Mr. Bilanzola currently had no stroke related residual impairments. He further elaborated that Mr. Bilanzola has lifelong developmental delay, barely managed to complete Grade 8 at school and stated that his cognitive testing will be invalid based on his education.

10On November 6, 2019 Mr. Bilanzola had a second functional driving assessment at a different approved centre and did not pass the on-road portion of the test.

11For the reasons which follow, we uphold the decision of the Registrar to suspend Mr. Bilanzola’s driver’s licence.

PRELIMINARY MATTERS:

12The materials submitted by the Registrar in support of the suspension exceeded 200 pages. During the Registrar’s presentation it became apparent that Mr. Bilanzola was having difficulty following the thread of the evidence and did not appear to have a copy of the documentation. When questioned by the Tribunal, he did not recall having received it. He suggested it might have been received but left in the file of the lawyer he had earlier retained to assist him with this matter. The Tribunal asked Mr. Bilanzola if he wished to adjourn to permit him time to obtain and review a copy of the Registrar’s submissions. He was adamant that he wished to proceed, and on that basis, the Tribunal agreed to continue.

ISSUES:

13The issue in this appeal is whether the appellant suffers from a medical condition which is likely to significantly interfere with his ability to drive a vehicle safely.

14To answer that question, we will address the following issues:

a. Does Mr. Bilanzola suffer from a medical condition?

b. If so, is/are his medical conditions(s) if any, likely to significantly interfere with his ability to drive a vehicle safely?

LAW:

15The Registrar has the burden of establishing the grounds for suspending the licence based on the balance of probabilities.

16Section 47(1)(g) of the Act gives the Registrar the power to suspend a driver’s licence if the driver suffers from a medical condition likely to significantly interfere with his or her ability to drive safely. Subsection 14(1)(a) of O.Reg. 340/94 (the Regulation) states that a holder of a driver’s licence must not “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.”

17Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely, and the Tribunal may consider whether the driver has complied with such a request.

EVIDENCE AND ANALYSIS:

a. Does Mr. Bilanzola suffer from a medical condition?

18Evidence provided in reports dated November 20, 2018 (fax date September 21, 2018) and January 7, 2019, from his family doctor, Dr. M., indicate that Mr. Bilanzola suffered a cerebellar stroke in June 2018, but also suffers from developmental delay with reduced cognitive abilities, longstanding uncontrolled diabetes, obstructive sleep apnea, depression (stable with on-going symptoms) and high blood pressure. Mr. Bilanzola’s stroke was confirmed by reports and letters by his treating neurologist since June 2018, Dr. O. Mr. Bilanzola does not deny having these medical conditions.

19By letter dated August 21, 2019, Dr. O. stated that Mr. Bilanzola currently had no stroke related residual impairments.

20Mr. Bilanzola has been treated for his obstructive sleep apnea since early 2019 and reports submitted as evidence indicate that he is compliant with the use of his CPAP machine and his apnea values are currently within normal range.

21At the hearing, Mr. Bilanzola testified that with respect to his diabetes, his blood sugar levels are “4, 6, 8 and never over”.

22However, evidence submitted indicates the contrary. The MCR states that Mr. Bilanzola has had admissions to hospital for repeated hyperglycemic episodes (including loss of consciousness or falls). Dr. M.’s completed Diabetes Assessment form (dated November 20, 2018 but with fax date September 21, 2018) indicates that: Mr. Bilanzola uses both oral diabetes agents and insulin for treatment of his diabetes; had a recent HbA1C level of 10.3; and that more than 10% of Mr. Bilanzola’s blood sugar readings during the past 30 days have been below 4 mmol/L. A HbA1C level of 10.3 indicates Mr. Bilanzola’s average blood sugar level over the prior two to three months was 10.3.

23Based on the reports received and the appellant’s testimony, we find that Mr. Bilanzola suffered a cerebellar stroke in June 2018 and suffers from several chronic medical conditions, specifically developmental delay with reduced cognitive abilities, Type II diabetes requiring oral agents and insulin therapy, obstructive sleep apnea and depression.

b. Are Mr. Bilanzola’s medical conditions, if any, likely to significantly interfere with his ability to drive a vehicle safely?

24Mr. Bilanzola left school after grade eight and since then has been working to support himself. Since 2017 he has lived on his own and has a small business servicing vending machines which is difficult to maintain without the ability to drive his motor vehicle.

25His driving record and testimony show that he has been operating a motor vehicle, accident free, and without conditions, for four decades. He testified that he is an extremely careful driver, particularly because one of his brothers was killed in a motor vehicle accident caused by another driver.

26Mr. Bilanzola underwent a Functional Driving Assessment for the first time in April 2019. At that time, he had not driven since his stroke. The report of that assessment, from St. Elizabeth Driver Assessment and Training, indicates that while his “overall range of motion, strength and coordination in the limbs appears to be within functional limits for driving”, on cognitive tests the results were “29/40 on first 40 items of MVPT-3 (impaired visual perception); Category 4 (Moderate to High Risk) on UFOV (impaired visual processing/attention).” He did not pass the on-road portion of the evaluation.

27Mr. Bilanzola’s second assessment was done by CBI Health in November 2019. The report of that assessment indicates that although he demonstrated a physical ability to operate the test vehicle, Mr. Bilanzola exhibited “signs of impairment” during the on-road portion of the evaluation such that the conclusion was that he was “not considered a rehab candidate. Overall findings indicated higher risk of collision”.

28Both Mr. Bilanzola’s written submission in the Notice of Appeal and his oral evidence were emotional and disjointed. It is apparent that his not having a driver’s licence and his efforts to have his suspension lifted have caused him a great deal of upset and contributed to his depression. He believes that a disagreement with his brother and sister in 2017, which led to his eviction from the home he shared with his mother, affected his overall mental and physical condition.

29Mr. Bilanzola is adamant that he can operate his own small vehicle safely and attributes his poor on-road performance during his November 2019 Functional Driving Assessment to the fact that he was tested on a vehicle much larger than his own as well as to the demeanour of the individual conducting the driving test. He asserts that he is willing to take driving instruction, followed by a further on-road test, and will willingly give up driving if he cannot pass.

30Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA Standards”) when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

31Although we are not bound by the CCMTA Standards, Chapter 3 (Key concepts) and Chapter 5 (Assessing fitness to drive) provide guidance in this case.

32Driving a motor vehicle safely requires a complicated combination of cognitive and motor functions. Two of the key concepts contained in Chapter 3 of the CCMTA Standards are a “Functional Approach” and “Individual Assessment” A functional approach emphasizes that driver fitness determinations will “be based primarily on functional ability to drive and other available relevant materials, but no longer solely on diagnosis”. The concept of individual assessment relies on “the individual driver’s characteristics and abilities rather than the presumed group characteristics and abilities of people with that medical condition”. This means that driver fitness authorities must make driver fitness determinations on an individual basis and that includes a road test that assesses both physical and cognitive ability as it relates to driving. The ability to assess an individual with multiple medical issues such as Mr. Bilanzola’s, relies heavily on the ability of the individual to pass the road test. As medical conditions such as obstructive sleep apnea, diabetes and depression can improve with time and appropriate treatment, the CCMTA Standards provide for an assessor to decide to reassess a driver’s fitness at a pre-determined interval or at the request of the driver.

33We find that the circumstances of his licence suspension illustrate Mr. Bilanzola’s reduced insight and poor judgment into his medical condition of diabetes, especially the close interrelationship between insulin and diet. Good insight and judgment into a medical condition is important in understanding how a medical condition may impair one’s functional ability to drive.

34Furthermore, we find that Mr. Bilanzola’s multiple medical conditions of diabetes, depression, obstructive sleep apnea and previous stroke all have a potential impact on his functional ability to drive.

35We acknowledge the burden and stress that the lack of a driver’s licence is continuing to have on the appellant. However, driving is a privilege, not a right. While we understand the practical challenges that can result from a licence suspension, we must apply the provisions of the Act and Regulation, keeping in mind the objective of ensuring public road safety.

Decision and ORDER:

36We find, on a balance of probabilities, that Mr. Bilanzola’s multiple medical conditions when considered as a whole, currently have a cumulative effect on his functional ability to drive and are likely to significantly interfere with his ability to drive a vehicle safely.

37We confirm the suspension.

38We encourage Mr. Bilanzola to follow through with the requirements in the Registrar’s letter of January 7, 2020 which states the next steps required for him to be considered for reinstatement of his licence, that is to pass a driving evaluation from a rehabilitation centre. An appointment for a further driving evaluation can be arranged through his family physician.