Paul R. Colotelo v. Registrar of Motor Vehicles, 2024 CanLII 118766

Licence Appeal Tribunal File Number: 15875 MED

In the matter of an appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), from a decision of the Registrar of Motor Vehicles to suspend a licence pursuant to subsection 47(1) of the Act.

Between:

Paul R. Colotelo

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATORS: Dr. Dimitri Louvish, Member Rupinder Hans, Member

APPEARANCES:

For the Appellant: Paul R. Colotelo, Appellant

For the Respondent: Melissa Litrenta, Agent

Held by teleconference: October 16, 2024

OVERVIEW

1Paul R. Colotelo (the “appellant”) appeals the decision of the Registrar of Motor Vehicles (the “Registrar” or “respondent”) to suspend his Class G driver’s licence for medical reasons, specifically musculoskeletal condition/motor function ability impairment, under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

2By letter dated April 23, 2024, the Registrar suspended the appellant’s driving privileges after receiving a report indicating that he has a medical condition that affects his ability to drive safely. Initially, by letter dated June 5, 2024, the Registrar alleged the medical condition was diabetes/hypoglycemia. However, after receiving additional medical documentation, by letter dated September 10, 2024, the Registrar asserted the medical condition of musculoskeletal condition/motor function ability impairment.

3The appellant appeals the suspension and asks the Tribunal to reinstate his licence.

4Four previous hearings scheduled for June 4, June 11, July 19 and August 2, 2024, were adjourned at the appellant’s request to allow him to obtain additional medical documentation.

5The appellant also filed a motion with the Tribunal dated July 28, 2024 requesting the vacating of his medical suspension and destruction of all associated medical reports for lack of due process. At the hearing, the appellant withdrew his motion and sought to proceed with the hearing on the merits.

6Having considered all the evidence and for the reasons that follow, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ISSUES

7The issue in this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.

8To resolve that issue, we will address the following questions:

a. Does the appellant suffer from a musculoskeletal condition/motor function ability impairment?

b. If the appellant does suffer from a musculoskeletal condition/motor function ability impairment, is this likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely?

RESULT

9We find the appellant does suffer from a musculoskeletal condition/motor function ability impairment, and that it is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely. As previously noted, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

The Law

10The Registrar has the authority under s. 47(1)(g) of the Act to suspend or cancel a driver’s licence for any sufficient reason.

11Section 14(1)(a) of O. Reg. 340/94 enacted under the Act requires 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.” Under s. 14(2)(b) of the Regulation, the Minister of Transportation may require a driver to provide satisfactory evidence that they are able to drive safely.

12Section 203(1) of the Act requires medical professionals to report a person who has or appears to have a prescribed medical condition to the Registrar, while s. 203(2) gives medical professionals the discretion to report persons who have or appear to have a medical condition that they believe may make it dangerous for a person to drive.

13Section 14(2)(a) of O. Reg. 340/94 allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”) when determining whether the requirements of s. 14(1) are met. The CCMTA Standards may also be considered but are not binding on this Tribunal.

14The Registrar has the burden of establishing on a balance of probabilities that one or more grounds for suspending a driver’s licence have been made out.

15Pursuant to s. 50(2) of the Act, after a hearing the Tribunal may confirm, modify or set aside the decision or order of the Registrar.

Does the appellant suffer from a musculoskeletal condition/motor function ability impairment?

16The evidence satisfies us, on a balance of probabilities, that the appellant suffers from a musculoskeletal condition/motor function ability impairment. We find that the medical evidence supports this conclusion.

17The Registrar alleges the appellant has a medical condition that affects his ability to drive safely after receiving an unsolicited Police Report (the “Report”) on or about April 22, 2024. The Report states that the appellant’s driving ability is likely compromised due to “significant incompetence.” In describing the incident and the basis for concern, the police officer states that the appellant was observed having difficulty parallel parking and a woman told him to stop as he was about to hit her car and she would offer assistance. Instead, the appellant continued driving back and forth, half in and half out of the parking spot, and “ultimately pinned the female’s leg between vehicles.” The woman was uninjured but squeezed by the cars.

18The Report further reflects the police officer’s own personal observations. The police officer states that he saw the appellant, who was attending the hospital for an appointment, and he displayed some physical limitations walking. The police officer further states that the appellant acknowledged what had occurred but was not remorseful.

19The Tribunal was also provided with a musculoskeletal condition/motor function ability impairment assessment, dated on or about September 9, 2024, completed by the appellant’s own family physician of about 10 years, Dr. Diego Garcia. In the assessment, Dr. Garcia notes the appellant’s musculoskeletal condition as general debility, weakness, neuropathy. He agrees that the appellant’s musculoskeletal condition is a significant condition that may impair the driver’s ability to operate a vehicle. He recommends that the appellant undergo a functional driving assessment which is a comprehensive in-clinic and on-road assessment conducted by an occupational therapist and driving instructor to evaluate the impact of the medical condition on the ability to drive. In the comments section, Dr. Garcia notes “advanced bilateral diabetic neuropathy below waist.”

20The appellant testified that he was parallel parking his vehicle on a main street, and a passenger in another vehicle jumped out of her vehicle and started screaming at him that he had hit her vehicle. He testified that the passenger jumped between the vehicles and her told her to get out of the way or she may get hurt. He acknowledged that his vehicle may have touched her at one point, but states that she showed no signs of any injury or impairment and the other vehicle was not damaged. He testified that on his way into the hospital for his medical appointment, he was approached by a police officer and he told the officer what had occurred. He testified that the police officer was not present when the incident occurred.

21The appellant testified that he was surprised when he received correspondence indicating that his driving privileges were suspended. He asserted that, as of the date of the suspension, there was no medical evidence indicating that he had a medical condition and his suspension is not warranted. He testified that he has no medical condition that would effect his ability to drive safely. In the Notice of Appeal, the appellant states that he has a limp due to a foot injury and the police officer watched him walk for maybe 100 feet.

22In making a determination, we weighed the testimony of the appellant, the Report, the Notice of Appeal, and the evidence presented to the Tribunal. We took into consideration that the appellant disagrees with portions of the Report.

23Notably, we found the musculoskeletal condition/motor function ability impairment assessment completed by Dr. Garcia to be particularly compelling. Dr. Garcia clearly states that the appellant has a musculoskeletal condition and he notes general debility, weakness and neuropathy. He further notes “advanced bilateral diabetic neuropathy below waist.” We note that Dr. Garcia has been the appellant’s family physician for about the last 10 years, and his opinion is persuasive.

24Although we found the applicant’s testimony forthright, we find that the musculoskeletal condition/motor function ability impairment assessment supports the conclusion, on a balance of probabilities, that the appellant suffers from a musculoskeletal condition/motor function ability impairment.

25Given the evidence before us, we find on a balance of probabilities, that the Registrar has established the appellant suffers from a musculoskeletal condition/motor function ability impairment.

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

26The Registrar has the burden of establishing that the appellant’s musculoskeletal condition/motor function ability impairment medical condition is likely to significantly interfere with his ability to drive a motor vehicle. We find that the Registrar has satisfied this burden.

27The Registrar relies on the CCMTA Standards, specifically chapter 11 dealing with musculoskeletal conditions. The CCMTA Standards state that many musculoskeletal conditions do appear to affect driving performance to a significant degree. Among other things, a musculoskeletal condition may cause a persistent impairment of motor functions necessary for driving. The abilities affected may include muscle strength, range of motion, flexion and extension of upper and lower extremities, joint mobility, and trunk and neck mobility.

28The Registrar relies on chapter 11.6.2 which states eligibility for any class of licence is supported if:

The driver retains sufficient movement and strength to perform the functions necessary for driving, and; the pain associated with the condition, or the drugs used to treat the condition, do not adversely affect ability to drive safely, and; where required, a road test or other functional assessment indicates ability to compensate for any loss of functional ability required for driving, and; the conditions for maintaining a licence are met.

29The Tribunal is entitled to take the CCMTA Standards into consideration but is not bound by them. The overriding consideration in this appeal is whether the Registrar has proven, on a balance of probabilities, that the appellant’s musculoskeletal condition/motor function ability impairment medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely.

30While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

31The Registrar submits that the appellant’s own doctor notes in the musculoskeletal condition/motor function ability impairment assessment a musculoskeletal condition, and that it is a significant condition that may impair the appellant’s ability to operate a vehicle. The Registrar relies upon the assessment in meeting its burden. The Registrar submits that the appellant’s own doctor recommended that he submit to a functional driving assessment.

32In this case, we are persuaded to apply the CCMTA Standards and take them into consideration. We note that the only medical evidence provided to the Tribunal with regards to the musculoskeletal condition/motor function ability impairment medical condition is the musculoskeletal condition/motor function ability impairment assessment completed by the appellant’s own family doctor of 10 years. Knowing the circumstances and having met and assessed the appellant, Dr. Garcia concluded that the appellant had a medical condition that is a significant condition that may impair the driver’s ability to operate a vehicle, and he recommends the appellant undergo a functional driving assessment. We find that the Registrar’s reliance on this assessment is reasonable.

33We are not persuaded by the appellant’s assertions and reliance on the words “may impair” in the assessment. We note that Dr. Garcia was required to reply yes or no to the question: “[i]s this a significant condition that may impair the driver’s ability to operate a vehicle?”. He answered yes.

34We note that CCMTA Standard 11.6.2 states that a driver could be eligible to drive, in part, if a road test or other functional assessment indicated an ability to compensate for any loss of functional ability required for driving. The Registrar has requested a satisfactory functional driving assessment to determine if the appellant can safely operate a vehicle. We find that it is reasonable and prudent for the appellant to undergo a functional driving assessment to ensure that he has the ability to drive a vehicle safely for his own safety and the safety of others on the road.

35We find that the CCMTA Standards are reasonable and should be followed in the circumstances. Experiencing a musculoskeletal condition/motor function ability impairment while driving a vehicle can have catastrophic consequences. It is reasonable to require drivers under these circumstances to refrain from driving a vehicle until their ability to do so safely can be properly assessed.

36At present, the appellant falls short of the criteria set out in the CCMTA Standards for licence eligibility.

37We find the Registrar has established that the appellant’s musculoskeletal condition/motor function ability impairment is likely to significantly interfere with his ability to drive a vehicle of the applicable class safely.

38Based on a careful consideration of all the evidence before us, we are satisfied 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.

ORDER

39For the reasons set out above, pursuant to subsection 50(2) of the Act, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

Licence Appeal Tribunal

Dr. Dimitri Louvish, Member

Rupinder Hans, Member