Date: 2022-12-21

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:

Kelvin Mbugua

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: Kelvin Mbugua, Appellant

For the Respondent: Stephen Grootenboer, Agent

Heard by Teleconference: December 13, 2022

A. Overview:

1Kelvin Mbugua (the “appellant”) appeals the suspension of his Class A driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), effective November 11, 2022.

2On October 26, 2022, the Registrar of Motor Vehicles (the “Registrar) received an unsolicited Medical Condition Report (“MCR”).

3By letter dated November 1, 2022, the Registrar suspended the appellant’s driver’s licence with the reported condition of syncope/loss of consciousness.

4The appellant argues that the MCR is not filled out properly as per s. 204 (b) of the HTA, as it does not specify a diagnosed condition or impairment (i.e., “unknown”). He argues that the Registrar, in its November 1, 2022 letter, specifies the condition of “syncope” and that “unknown and syncope cannot be true at the same time”.

5Having considered all of the evidence and for the reasons that follow, I find that the Registrar has met the burden of establishing on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to drive a vehicle safely.

6Accordingly, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.

B. ISSUES:

7The issue in this appeal is whether the appellant suffers from syncope/loss of consciousness, a medical condition, which is likely to significantly interfere with his ability to drive a vehicle safely.

8To answer that question, I will address whether the Registrar has established on a balance of probabilities the following two issues:

a. Does the appellant suffer from syncope/loss of consciousness?

b. If the appellant suffers from syncope/loss of consciousness, is it likely to significantly interfere with his ability to drive a vehicle safely?

C. LAW:

9Under the HTA the Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on the highway. In this case, the Registrar acted pursuant to s. 47(1) of the HTA and s. 14(1)(a) of O. Reg. 340/94 under the HTA (the “Regulation”).

10Under s. 14(2)(b) of the Regulation, the Registrar may require a driver to provide satisfactory evidence that he or she is able to drive safely.

11Section 15(1.1) of the Regulation states that it is a condition of having a driver’s licence that the holder submit to certain medical and physical examinations and tests that the Registrar requires.

12A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.

13On appeal, the Registrar has the burden, on a balance of probabilities, of establishing that the licence should remain suspended.

14Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

15Section 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.

D. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from syncope/loss of consciousness?

16I find, on a balance of probabilities, that the Registrar has established that the appellant suffers from syncope/loss of consciousness.

17On October 26, 2022, the Registrar received an unsolicited MCR from Dr. T., a physician in the Emergency Department (“ED”) of a trauma hospital in Ontario.

18On the MCR, Dr. T. indicated he was of the opinion that the appellant had “Sudden Incapacitation” due to “Other”. I note that on the MCR, the headings under Sudden Incapacitation are: Seizure, Syncope, CVA and Other. Furthermore, I note that under the heading “Other”, Dr. T. did not check off any of the pre-specified medical conditions but rather checked off “Other (specify) ______” and wrote “Dangerous accident. Refusing workup for cause.” above the blank line.

19In the Discretionary section of the MCR, Dr. T. wrote:

“Patient crashed tanker truck off of 15 foot bridge. Not able to explain what happened prior to this to cause accident. Refusing further workup in the ED to identify cause. ?seizure, vs arrhythmia causing syncope. No driving until safety assessed further by MOT [Ministry of Transportation]”.

20By letter dated November 1, 2022, the Registrar suspended the appellant’s driver’s licence for the reported condition of syncope/loss of consciousness. The letter also stated that in order to consider the appellant’s licence for reinstatement, the Registrar required the appellant’s healthcare professional to complete a “Seizures and Loss of Consciousness” form and the report must indicate, in writing, that the appellant has made his healthcare professional aware of the tanker truck accident.

21The Registrar’s representative spoke to the fact that, in accordance with Dr. T’s MCR., the appellant had an unexplained episode or incident on October 26, 2022 (i.e., the cause not yet being determined or explained), Dr. T. recommended more testing (i.e., “further workup”) and the appellant has not yet had a thorough evaluation or further testing specifically for the reported condition.

22The Registrar’s representative acknowledged that the appellant had submitted some new laboratory data and x-ray reports to the Registrar. However, he emphasized that this information was not from the date of the tanker truck accident (the “accident”) and the Registrar did not consider this information to constitute a further workup to identify the medical cause of the accident. I note that this information was from a hospital close to the appellant’s place of residence and the testing was done approximately one and one-half days after the accident.

23Furthermore, the Registrar’s representative emphasized that neither a completed Seizures and Loss of Consciousness form nor further written information from a healthcare professional had been received.

24The appellant stated that prior to the accident he did not have a family physician, but now has one. He indicated that he attempted to get the Seizures and Loss of Consciousness form completed but the physicians he asked declined on the basis that they do not know him.

25The appellant argued that the MCR is “not filled out properly”. During the hearing he used many other terms to express this opinion including: it is “filled out wrong”; it is “poorly filled out”, it is “vaguely filled out”, it is “open to misinterpretation”, the “description given is not clear”, “Dr. T. did not follow the procedure”, “no medical condition is checked off or indicated” and there is “no description or a condition/impairment/diagnosis as per s. 204 (b)” of the HTA. He further argued that because no medical condition was checked off or indicated in the Sudden Incapacitation part of the MCR (i.e., only checked off as “other”), that the Registrar’s reported condition of syncope/loss of consciousness cannot be true at the same time as an “unknown” medical condition.

26Sections 203.1, 203.2 and 204 of the HTA state, respectively, the following:

Every prescribed person shall report to the Registrar every person who is at least 16 years old who, in the opinion of the prescribed person, has or appears to have a prescribed medical condition, functional impairment or visual impairment.

A prescribed person may report to the Registrar a person who is at least 16 years old who, in the opinion of the prescribed person, has or appears to have a medical condition, functional impairment or visual impairment that may make it dangerous for the person to operate a motor vehicle.

A report required or authorized by section 203 must be submitted in the form and manner specified by the Registrar and must include,

(a) the name, address and date of birth of the reported person;

(b) the condition or impairment diagnosed or identified by the person making the report, and a brief description of the condition or impairment; and

(c) any other information requested by the form.

27Having carefully reviewed the MCR, I am of the opinion that Dr. T. completed and filed the MCR in accordance with s. 203 and s. 204 of the HTA. Dr. T. is a prescribed person in accordance with the HTA, the appellant’s demographic information has been entered and Dr. T. has provided his opinion that the appellant has or appears to have [emphasis added] a medical condition, functional impairment or visual impairment that may make it dangerous for the appellant to operate a motor vehicle. In the Discretionary section, Dr. T. has included a brief description identifying his concerns that the appellant appears to have a medical condition (?seizure vs arrhythmia causing syncope), that the appellant crashed the tanker truck he was driving off of 15 foot bridge, the appellant was not able to explain what happened prior [emphasis added] to this to cause the accident and that the appellant refused further medical workup in the ED to identify the cause. Furthermore, I do not find it contradictory that under “Sudden Incapacitation” Dr. T. checked off information under the heading “Other” rather than checking off information under the heading “Seizure” or “Syncope”. In the Discretionary section, Dr. T. wrote “?” seizure vs arrythmia causing syncope. “?” means he is questioning or querying these being the causes of what appears to be syncope.

28The appellant also argued that the Registrar should not have stated in their November 1, 2022 letter that his reported condition is syncope. He emphasized that his medical condition is “unknown”, and both “unknown and syncope cannot be true at the same time”. He also stated that the Registrar sent him the “wrong form” to have his healthcare professional complete. The appellant expressed his opinion that the above demonstrates that the Registrar “miscommunicated” with him.

29At the hearing, the appellant denied he has ever had syncope, seizure, loss of consciousness or sudden incapacitation.

30The appellant acknowledged that while in the ED, Dr. T. asked him what caused the accident. He stated that he told Dr. T. that he had an accident, his truck ended up in a lake and he nearly drowned.

31Furthermore, the appellant stated that it is his opinion that it was "not Dr. T.’s job to interview him to find out what caused the accident”. He stated that interviewing is the role of the police (“police first, doctor second”). The appellant acknowledged that the police came to the ED to speak with him, the police told him that he had the right to a lawyer during questioning, he requested a lawyer and the police left after issuing him a ticket for careless driving.

32The appellant submitted as evidence a notarized copy of what he personally wrote and titled “Accident Report”. In this report he recounts the road and weather conditions near where the accident occurred sometime around 4:30 a.m. on October 26, 2022. The appellant stated that at that time he was 3-3 ½ hours into his delivery of a tanker truck of oil and was driving at the speed limit. In the report the appellant describes various manoeuvres he performed after he spotted two deer on the road, how the truck ended up in a lake, how he nearly drowned, how he escaped out of the hatch of the emergency door and how people approached who were able to get him to solid ground.

33When questioned why he did not tell Dr. T. about the two deer on the bridge/road, the appellant stated that he was in shock and could barely put a sentence together.

34When questioned why he decided to refuse further testing or further workup as recommended by Dr. T., the appellant stated that he was of the opinion that he received “poor treatment”, “unsatisfactory treatment” and the care was “not up to par” at the trauma hospital. He stated that he was not being treated for what was hurting him (his back and hands) and made the decision to leave the hospital. The appellant stated that Dr. T. “miscommunicated” with him and never told him that the further workup was to rule out seizure, syncope or fainting. The appellant denied leaving the trauma hospital against medical advice.

35It is clear that around 4:30 a.m. on the morning of October 26, 2022, the appellant experienced a horrifying accident while driving a tanker truck carrying oil. It is also clear from the evidence that there were people around at the scene of the accident who helped him even before the police and ambulance arrived. Furthermore, it is clear that the appellant was transported to one of Ontario’s lead trauma hospitals.

36Based on my knowledge as a licenced and duly qualified physician in the Province of Ontario, I am aware that an ED physician has many roles or duties when caring for a trauma patient. The ED physician must establish that the patient is medically stable and make decisions on what testing needs to be done quickly. At the hearing the appellant acknowledged he had “a lot” of testing done at the trauma hospital. He stated that this including laboratory work, an electrocardiogram and various scans to ensure he had no internal bleeding.

37In addition, based on my knowledge as a physician, another role or duty of an ED physician is to establish if there is or was a medical reason that caused, led to or contributed to the trauma. In the appellant’s case, this would mean trying to establish if there was a medical event that caused, led to or contributed to the appellant’s accident.

38Based on the above, I find that it was appropriate that Dr. T. questioned the appellant regarding the events leading to or prior to the accident

39Furthermore, based on my knowledge, under the Health Care Consent Act, 1996 S.O. 1996, c. 2, Sched. A, as amended, a physician may administer treatment to a person without consent if the person for whom the treatment is proposed is apparently experiencing severe suffering or is at risk, if the treatment is not administered promptly, of sustaining serious bodily harm (i.e., an emergency situation). However, if no emergency exists, a physician must obtain consent of a person for whom a treatment is proposed.

40Based on the evidence, Dr. T. asked the appellant for consent for a “further workup” to determine a potential medical cause of the accident. Thus, at that time, I find on a balance of probabilities, that Dr. T. deemed there was no emergency and the appellant had the capacity to make his own decisions regarding further treatment or investigations.

41The appellant’s evidence regarding why he did not fully disclose to Dr. T. his version of the events leading to or prior to the accident on October 26, 2022 was inconsistent. I do not accept as credible that the appellant could barely put a sentence together throughout his entire stay at the trauma hospital which lasted a number a of hours. I accept that the appellant was likely traumatized by the accident but it is clear that he chose or made conscious decisions to not speak to the police without a lawyer, to not proceed with a further workup to determine if there was an underlying medical reason for the accident and to leave the trauma hospital. Furthermore, I find it perplexing that the appellant never disclosed to Dr. T. during his stay at the trauma hospital that there were deer on the road in accordance with his Accident Report.

42To date, the appellant has not submitted any corroborating evidence for his version of the accident in his Accident Report. As previously stated, there were bystanders at the scene and the appellant stated they were there before the police and ambulance arrived. When questioned, the appellant stated that he attempted to obtain the police report but he had not received it prior to the hearing.

43Although the appellant did submit medical testing results done at his local hospital, these tests were performed one and one-half days after the accident and prior to the Registrar’s letter suspending his driver’s licence. In addition, based on my knowledge as a physician, I find that most of this testing likely would have been done at the trauma hospital on October 26, 2022. Furthermore, I find that the medical testing done at the local hospital is not the type of testing required to determine a medical cause for the appellant’s accident (i.e., ?seizure vs arrhythmia causing syncope). When questioned, the appellant stated that he attempted to obtain his medical records from the trauma hospital but he had not received them prior to the hearing.

44When questioned, the appellant stated that he chose to proceed with his hearing without either the police report or trauma hospital records.

45Based on the above, I find that the appellant has neither submitted corroborating evidence for the statements in his Accident Report nor evidence from a health care professional disputing Dr. T.’s medical opinion.

46Based on a careful consideration of the evidence before me, I find on a balance of probabilities that the appellant suffers from syncope/loss of consciousness.

b. If the appellant suffers from syncope/loss of consciousness, is it likely to significantly interfere with his ability to drive a vehicle safely?

47The Registrar has the burden of establishing, on a balance of probabilities, that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Registrar has met that burden.

48The respondent’s representative argued, based on the MCR, that sudden incapacitation (from any cause) is “a disorder that has a moderate or high risk of sudden incapacitation, or that has resulted in sudden incapacitation and that has a moderate or high risk of recurrence”. He emphasized that the appellant had a serious and medically unexplained accident while driving a commercial vehicle on October 26, 2022. He stated that the Registrar’s position to suspend the appellant’s driver’s licence until further medical information from a healthcare professional has been received is prudent, reasonable and supported by law. He pointed to the fact that, by law, the Registrar can require the holder of a driver’s licence to submit to certain medical and physical examinations, tests and procedures.

49The appellant argued that he does not, nor has he ever had sudden incapacitation, seizure or syncope, the MCR was not properly filled out, the Registrar has miscommunicated with him, he has explained the accident in his Accident Report and his driver’s licence should be reinstated.

50The overriding consideration in this appeal is whether the Registrar has proven, on a balance of probabilities, that the appellant’s reported condition of syncope/loss of consciousness is likely to significantly interfere with his ability to drive a motor vehicle safely.

51Although the Tribunal is not bound by the CCMTA Standards, they may be considered and applied by this Tribunal.

52I note that 19.4 and 19.5 of the CCMTA Standards indicate that syncope causes an episodic impairment of all the functions necessary for driving and a person cannot compensate for this.

53Furthermore, I note that 17.4 and 17.5 of the CCMTA Standards indicate that the primary consideration for drivers with seizures is the potential of a seizure causing a sudden impairment of cognitive, motor or sensory functions, or a loss of consciousness while driving. As seizures can cause an episodic impairment of the functions necessary for driving, a driver cannot compensate.

54I acknowledge the burden that the lack of a driver’s licence is having on the appellant. However, driving a motor vehicle is a privilege, not a right. While I understand the practical challenges that can result from a licence suspension, I must apply the provisions of the HTA and Regulation, keeping in mind the objective of ensuring public road safety.

55Based on the totality of the evidence before me and after careful consideration, I find that the Registrar has discharged its onus on a balance of probabilities of establishing that the appellant’s syncope/loss of consciousness is likely to significantly interfere with his ability to drive a vehicle safely.

56As stated by the Registrar’s representative at the hearing, should the appellant obtain any new information related to his case, the appellant may forward this information to him and he will have this information reviewed.

E. ORDER:

57For the reasons set out above, pursuant to subsection 50(2) of the HTA, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.