Tribunals Ontario Licence Appeal Tribunal

Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis

Date: 2021-03-17

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 pursuant to section 47(1) of the Act - to suspend a licence.

Between:

Allan Purtle

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dimitri Louvish, M.D. and Evelyn Spence, LL.B.

Appearances:

For the Appellant: Allan Purtle, Self-represented

For the Respondent: Sanjay Kapur, Agent

Place and date of hearing: By Teleconference February 26, 2021

REASONS FOR DECISION AND ORDER:

A. Overview

1The appellant appeals the suspension of his driver’s licence, imposed pursuant to section 47(1) of the Highway Traffic Act (the “Act”).

2On or about June 19, 2019, the Ministry of Transportation received a medical condition report (“MCR”) from the appellant’s treating physician indicating that the appellant had a cognitive impairment, hepatic encephalopathy, that resulted in a substantial limitation of his ability to perform activities of daily living. The appellant’s driver’s licence was thereafter suspended on or about July 24, 2019, pursuant to s. 47(1) of the Act.

3The appellant appeals pursuant to s. 50(1) of the Act. He maintains that he has been misdiagnosed with the condition of hepatic encephalopathy and instead experiences a much-misunderstood neurological condition which impacts his speech but not his cognitive functioning. Accordingly, the appellant asserts the suspension of his driver’s licence is unfounded.

4The registrar points to the multiple forms and letters submitted by the appellant’s various treating physicians, each of whom stated their concerns about the appellant’s licence being reinstated. This, in addition to the appellant’s failure to produce any recent or completed medical assessment forms indicating that the cognitive functions necessary for driving are not impaired in the appellant, suggests that the interests of public safety would not be served by reinstating the appellant’s licence.

B. ISSUES AND RESULT:

5The issue to be determined in this appeal is whether the appellant suffers from hepatic encephalopathy or any other mental, emotional, nervous or physical condition or disability (a “medical condition”) which is likely to significantly interfere with his ability to drive a motor vehicle safely.

6Based on our review and consideration of the evidence and the parties’ submissions, we conclude that the appellant does suffer from a medical condition and that the condition is likely to significantly interfere with his ability to drive a motor vehicle safely.

7Accordingly, we confirm the registrar’s decision to suspend the appellant’s driver’s licence.

C. LAW:

8Section 203 of the Act requires all physicians in the Province of Ontario to report to the registrar the name, address and clinical condition of any person sixteen years of age or over who is suffering from a condition that may make it dangerous for the person to operate a motor vehicle safely.

9The respondent has the power under subsection 47(1) of the Act to suspend or cancel a driver’s licence for a “sufficient reason”. Subsection 14(1)(a) of Ontario Regulation 340/94 (the “Regulation”) under the Act 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.

10Section 14(2)(a) of the Regulation allows the registrar to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”) when determining whether the requirements of 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

11The respondent has the burden to establish the grounds for suspending the appellant’s 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.

D. evidence:

12The evidence in this case consists largely of the forms submitted to the Ministry from police and the appellant’s physicians and specialists, as well as letters from those physicians, and statements given by the appellant under oath.

13On or about March 3, 2019, the appellant was involved in an accident and was transported to hospital after he drove his vehicle, going approximately 10km/hr, into an unoccupied car in a parking lot. Upon attending the scene of the accident, police found the appellant to be incoherent and unable to say what day it was, where he was, or why he was at the collision location. He was also unsteady on his feet and had to be assisted into an ambulance.

14After being assessed by medical staff at the hospital, it was confirmed that the appellant was not impaired by alcohol or drugs. Nonetheless, the investigating officer completed and submitted to the registrar a Request for Driver’s Licence Review, indicating his concern about the appellant’s driving competence. Specifically, the officer wrote that “Mr. Purtle may be suffering from dementia to a degree that he cannot safely operate a motor vehicle;” a statement the officer said was informed, in part, by his observations of the appellant at the scene of the collision and also based on his consultation with an outreach worker at the hospital.

15The appellant’s driver record shows that his licence was suspended for medical reasons on April 28, 2019, but was automatically reinstated on June 3, 2019, after the suspension had expired. On or about June 19, 2019, however, the appellant’s treating physician, Dr. Anouar Teriaky, completed and submitted to the registrar an MCR and indicated the appellant had, or appeared to have, “a disorder resulting in cognitive impairment that affects attention, judgement and problem solving, planning and sequencing, memory, insight, reaction time or visuospatial perception, and results in substantial limitation to the person’s ability to perform activities of daily living.” In completing the form, Dr. Teriaky specifically added that the appellant’s cognitive impairment was due to “Hepatic Encephalopathy” rather than dementia, brain injury, or unknown; the three options which were expressly listed on the form.

16Shortly after receiving the MCR, on or about July 14, 2019, the respondent issued a letter notifying the appellant of its decision to suspend his driving privilege (the “Suspension Letter”). The appellant’s licence was suspended shortly afterwards, on July 24, 2019.

17In its Suspension Letter, the respondent stated it had received a report indicating the appellant had the condition of hepatic encephalopathy and advised that, in order to have his licence reinstated, the appellant needed to have his treating physician, specialist or nurse practitioner provide the respondent’s Medical Review Section with an up-to-date report referencing his hepatic encephalopathy, including current status, confirmation that the condition is treated and/or resolved and details of any residual deficits and other disqualifying medical concerns. The appellant was informed that the Medical Review Section would review the provided information against the national medical standards and determine whether his licence could be reinstated.

18As at the date of the hearing, the appellant had not submitted to the respondent or its Medical Review Section the requested report, which had been included in two of the four letters that the respondent had issued between July 2019 and November 2020. In his oral testimony, the appellant explained that he does not, at present, have a family doctor and that all the physicians he has approached to complete the Ministry of Transportation (“Ministry”)-requested forms have been “fired” and refused to assist to fill out the forms.

E. Analysis:

19To determine whether the appellant suffers from a medical condition, we must examine the appellant’s medical history. If that history supports a finding that the appellant is a person with a cognitive impairment, we must determine whether the appellant’s condition is likely to significantly interfere with his ability to drive a motor vehicle safely.

Does the appellant suffer from a medical condition?

20Because the appellant could not furnish the reports requested by the Ministry, the only medical evidence available to the Tribunal was the information in the MCR and the letters from the appellant’s various physicians, many of which made specific reference to a purported condition of encephalopathy. Specifically:

i) The MCR, which was completed by the appellant’s treating physician after he was assessed on or around June 17, 2019, expressly stated that he appeared to have a cognitive impairment due to hepatic encephalopathy.

ii) In a letter, dated January 20, 2020, to another physician, Dr. Griffloen, from Dr. Azzam Diab, a specialist to whom the appellant had been referred, he writes:

“…I inquired further about [Mr. Purtle’s] symptoms and he mentioned to me that he gets episodes where he cannot talk properly for a few hours and these can last up to 24 hours which, to me, imply intermittent encephalopathy. As you know, he does have fluctuating levels of ammonia which, although is not a very good indication of encephalopathy, his symptoms do certainly suggest that.”

iii) In another letter dated February 10, 2020 from Dr. Jordan Golubov, Gastroenterologist, he references the diagnosis when expressing the statements of two of his colleagues when he states, in part:

“I did not assess Mr. Purtle when he presented to Cambridge Memorial Hospital on March 9^th, 2019. The patient was seen by Dr. Jenny Maria Lagassie. I am quoting that physician who states, “the patient was unable to provide much of a history today due to confusion, drowsiness and disorientation.” … On physical exam, Dr. Legassie reports that “he does not have asterixis”. In her impression and plan, she concludes “He presents today with hepatic encephalopathy”.

The discharging physician, Dr. Carolynne E. Locke states on the discharge date of the 12^th March, 2019, “He was found to have hepatic encephalopathy with an ammonia level of 75.””

21The appellant vigorously denies experiencing or ever having had hepatic encephalopathy and instead asserts he has a condition known as “Speech Variant Frontal Temporal Dementia” (SVFD). He explained that the leading authority on SVFD is Dr. Bruce Miller of the Memory and Aging Centre in San Francisco, and that he had had an initial interview with Dr. Miller to discuss his symptoms. The appellant clarified that he was not formally assessed by him, and that he had been planning to go to San Francisco to undergo a series of MRIs and other evaluations before COVID-19 hit and the Center was shut down.

22In his evidence, the appellant explained that with SVFD, there is no behavioural impairment, however the brain is not able to access its speech centre, so one cannot speak. When this occurs, it is assumed by physicians that he has hepatic encephalopathy, particularly given his underlying condition of cirrhosis of the liver. He maintains that he understands what is happening around him, including what is being said to him during these episodes, but that he just cannot make the words come out of his mouth in response. He holds that this condition, of SVFD, does not form cause to suspend a driver’s licence and that there are no doctors in the province of Ontario with knowledge of this rare condition.

23The appellant also maintains that doctors have never run specific tests on him to determine if he has hepatic encephalopathy. Accordingly, he believes it is the physicians’ default diagnosis when faced with a patient with cirrhosis and elevated ammonia levels.

24We are sympathetic to the appellant’s position and the frustration he must endure in feeling misunderstood by his peers and those in the medical community. Yet we note that he has diagnosed himself with SVFD, and that this has not been medically validated, including by Dr. Miller. The appellant is not, himself, a physician, although it was clear from his testimony that he has done much to educate himself about the various conditions with which he’s been diagnosed over the years, including cirrhosis, Chron’s disease, and the like. However, in the absence of any reliable and persuasive evidence to substantiate his position, and in the face of clear and specific references from four (4) different physicians of a condition that lends itself to a cognitive impairment, likely to be hepatic encephalopathy, we are satisfied that the appellant does suffer from a medical condition.

Is the appellant’s condition likely to significantly interfere with his ability to drive a motor vehicle safely?

25The presence of a medical condition alone is not sufficient to justify the suspension of a licence, such that further analysis is required. In this case, we must seriously take into consideration the comments and professional opinions of the physicians who assessed the appellant, some of whom expressed specific concerns about his licence being reinstated:

i) In a letter from Dr. Azzam Diab from January 29, 2020, he notes, after having reviewed the appellant in his clinic that: “For Public Safety, I would have strong reservations against reinstating [Mr. Purtle’s] driving license [sic].”

ii) Dr. Diab’s recommendation is referred to again in a letter from Dr. Baldeep Takhar to the appellant on February 11, 2020, where he states that “We have received a report from Dr. Diab stating that he has strong reservations against reinstating your license [sic]. It is mandated by law to follow the advice of your specialist.”

26Once again, in the absence of any medical evidence supporting the appellant’s fitness to drive, other than his own personal convictions, and when presented with the MCR and opinions specifically stating that reinstatement could jeopardize public safety, we decline to make an alternate finding.

27We are further concerned that the appellant does not have a family doctor or physician who is following his care. In his testimony and his various letters submitted to the respondent from March 2020 onwards, the appellant made numerous references to having “fired” each of his previous physicians for reasons ranging from their incompetence, ignorance, lying, having had personal agendas, and making fraudulent claims or diagnoses, among other things. When asked whether he has a family doctor, the appellant replied that his only doctor is Dr. Miller in San Francisco, who he admitted he has never met and is likely not to meet until after COVID-19 is under control.

28If the appellant’s licence were reinstated, and he was not being monitored by a physician to manage his condition, we believe it would pose a further and significant risk to the driving public. Particularly in the face of his vehement disagreement about having any condition other than SVFD, we do not trust that the appellant would be able to regulate himself or suitably determine his own fitness to drive.

29Driving is an activity that requires a certain level of cognitive function in order to do so safely. Hepatic encephalopathy is a serious medical condition that impacts cognitive function – the appellant driving with the condition could have devastating results both to the appellant and other road users. We cannot forget that the reason the appellant’s licence was suspended in the first place was because he was involved in a low-speed collision when he drove his vehicle into a parked car. Luckily, the other car was empty, and neither the appellant nor anyone else was injured, although this easily could have ended differently.

30Given the fact of this precipitating event, the appellant’s subsequent medical diagnoses, his lack of insight into his condition, and the fact that he has not been able to furnish any medical reports confirming that his condition has improved or resolved itself, we find that the appellant’s medical condition is likely to significantly interfere with his ability to safely drive a vehicle.

F. ORDER:

31For the reasons set out above, and pursuant to subsection 50(2) of the Act, the registrar’s decision to suspend the appellant’s driver’s licence is confirmed.