Licence Appeal Tribunal File Number: 16463/MED

An 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 licence pursuant to Section 47(1) of the Act.

Between:

William Nesbitt

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Dr. Isla McPherson, Member

APPEARANCES:

For the Appellant: William Nesbitt, Appellant

For the Respondent: Ian Sookram, Agent

Held by teleconference: December 12, 2024

OVERVIEW

1William Nesbitt (the “appellant”) appeals the decision of the Registrar of Motor Vehicles (“Registrar”) to suspend his Class G licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) after the Registrar received an unsolicited Medical Condition Report stating that the appellant suffers from a medical condition that may affect his ability to drive a motor vehicle of the applicable class safely.

2The Registrar has the authority under s. 47(1)(g) of the Act to suspend or cancel a driver’s licence for any sufficient reason. Section 14(1)(a) of O. Reg. 340/94 under the Act (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 their ability to safely drive a motor vehicle of the applicable class safely. Under s. 14(2)(b) of the Regulation, the Registrar may require a driver to provide satisfactory evidence that they are able to drive a vehicle of the applicable class safely.

3The Registrar takes the position that the appellant suffers from a medical condition, namely cerebrovascular disease, that is likely to significantly interfere with his ability to drive a vehicle of the applicable class safely and that this provides sufficient reason to suspend his licence under s. 47(1)(g) of the Act.

4The appellant appeals the suspension under s. 50(1) of the Act. While he states he may have had a TIA [transient ischemic attack], he disagrees that he suffers from cerebrovascular disease and denies that this condition interferes with his ability to drive a vehicle of the applicable class safely.

5Pursuant to section 50(2) of the Act, after a hearing the Tribunal may confirm, modify, or set aside the decision or order of the Registrar.

ISSUES

6The 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.

7To resolve that issue, I will address the following questions:

i. Does the appellant suffer from cerebrovascular disease?

ii. If so, is this likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely?

8The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”

PRELIMINARY ISSUES

9At the onset of the hearing, it was reviewed the medical condition resulting in the suspension was cerebrovascular disease per the Registrar’s letter dated November 4, 2024. However, the Case Conference Report and Order dated November 29, 2024, had identified stroke as the medical condition for the suspension.

10The Registrar confirmed the reason for the suspension was cerebrovascular disease.

11In the interest of fairness, the appellant was invited to provide submissions for an adjournment if the misidentification of the medical condition at the case conference impeded his hearing preparation, and should he require further time to prepare in light of the medical condition being clarified. No submissions from the appellant were received, and the appellant indicated he was prepared to proceed with the hearing.

LATE SUBMISSION

12All submissions were identified and entered as exhibits at the outset of the hearing. However, during the Registrar’s testimony it was apparent that they had received additional medical submissions from the appellant that were not submitted to the Tribunal.

13The appellant was questioned whether he had intended certain documentation to be sent only to the Registrar, or if all medical documentation was intended to be sent to the Tribunal as well. The appellant responded that all medical documentation submitted was intended to be submitted to both the Registrar and the Tribunal.

14The Registrar had no objection to a late submission of the same medical information they had previously received. The appellant was unable to forward the relevant medical documentation, and it was subsequently forwarded by the Registrar to the Tribunal on the appellant’s behalf during the hearing and accepted as an exhibit.

RESULT

15Having considered all the evidence and submissions and for the reasons that follow, I find that the Registrar has satisfied its burden to establish that 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 and I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from cerebrovascular disease?

16The evidence presented at the hearing establishes that the appellant suffers from a medical condition, namely cerebrovascular disease.

17The Registrar’s position is supported by:

i. a Medical Condition Report (MCR) dated, December 19, 2023, from Dr. AM;

ii. a Consultation Letter dated, December 28, 2023, by Dr. B.

18On December 19, 2023, locum family physician, Dr. AM, completed a MCR documenting the appellant had a subacute stroke and was being investigated for normal pressure hydrocephalus (NPH). Dr. AM added the comments that the appellant was recently admitted to hospital in the United States for subacute stroke and possible NPH and was awaiting further investigations.

19Following receipt of this MCR the Registrar suspended the appellant’s driver’s licence effective January 7, 2024, and requested the completion of a Cerebrovascular Diseases, Traumatic Brain Injury, Tumour or Other Neurological Diseases Form (Cerebrovascular and Neurological Diseases Form).

20Ten months later the appellant submitted a consultation report from neurologist Dr. B dated December 28, 2023. Dr. B indicates there is no evidence of acute or subacute ischemia on MRI report, but that the appellant is “certainly at risk of strokes” and treatment decisions should consider whether the appellant had any clinical signs or symptoms of stroke or TIA. Dr B also suggests a repeat MRI and assessment by general neurologist or the appellant’s geriatrician to evaluate the diagnosis of NPH and possibly a referral to a memory disorders clinic for cognitive changes.

21Following receipt of this consultation report, the Registrar’s response reported that the previously requested Cerebrovascular and Neurological Diseases Form remained outstanding, and in order to determine whether the appellant can safely operate a vehicle, a satisfactory functional driving assessment was required.

22The appellant reported that he does not have cerebrovascular disease but has been told that he could have had a TIA.

23The medical evidence before the Tribunal comprises two medical forms that both document concerns with cerebrovascular disease. The appellant provided that he may have suffered a TIA.

24The medical evidence in this case is clear and the appellant’s testimony supports the presence of cerebrovascular disease. Based on the information available, I find that the Registrar has established on a balance of probabilities that the appellant suffers from cerebrovascular disease.

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

25I find that the Registrar has proven 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.

26The Registrar’s position is supported by:

i. The consultation letter from Dr. B dated December 28, 2023;

ii. The appellant’s testimony regarding a functional driving assessment;

iii. The Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”).

27The Registrar relies on the CCMTA Standards Chapter 4. Chapter 4 of the Standards documents that cerebrovascular disorders can result in episodic or persistent cognitive, motor or sensory impairment that may result in impairment of the functions necessary for driving.

28The Registrar relies on Standard 4.6.2. This Standard indicates a driver is eligible for a licence if complete medical assessment shows no residual effects, any underlying cause has been addressed with appropriate treatment, a post CVA seizure has not occurred, the functional abilities necessary for driving are not impaired, and the conditions for maintaining a licence are met.

29Section 14(2)(a) of the Regulation allows the Registrar to consider the CCMTA Standards when determining whether the requirements of s. 14(1) are met. The Tribunal may take the CCMTA Standards into consideration but are not bound by them.

30The appellant described that in November 2023 he drove over 13-14 hours per day for two days, covering over 2 000 miles traveling to Florida with his wife. A day or two after they arrived, his wife was concerned he was having symptoms of a stroke. The appellant felt that he was just fatigued from the drive, but they proceeded to the hospital. The appellant reported his wife told the healthcare providers she was a nurse and he had had a stroke. However, the appellant’s spouse was a paramedic, not a nurse. The appellant described being admitted to hospital for four days and undergoing extensive testing costing several tens of thousands of dollars. When they returned to Canada, the appellant went to see his family physician. He reported his wife told the locum family physician, Dr. AM, that he had had a stroke and his licence should be taken away.

31The appellant described in detail how his wife had been “setting me up for the last two years”. He testified that her reporting him having a stroke was part of a much larger “con” to steal his money. She has since stolen millions of dollars from his business, lied to the police about abuse resulting in him being arrested and barred from their property, and she is continuing to steal his personal belongings from his home and business. He reported that his wife left him in April 2024, and she will soon be his ex-wife.

32The appellant was asked regarding the details of his four-day admission to hospital. He reported “they gave me every test they had” and said they told him he might have had a “mini stroke”.

33The appellant was asked if he has seen a geriatrician as reported in Dr. B’s letter. The appellant could not recall seeing a geriatrician but reported on one occasion he thought he had seen a doctor on a Zoom call, but could not recall the details of that call or the date. The appellant was asked regarding how many appointments he had with Dr. B and the details of the medical imaging, but he could not recall when the last appointment was with Dr. B, how many appointments he had, or any details of the medical imaging. When asked about what doctors he sees, he reported a doctor provided a few home visits when he was living in his motor home, but he could not recall the details of these appointments and while she wanted to keep following up, he did not allow these visits to continue as he did not want to talk to anyone.

34The appellant was asked why he had not completed the Cerebrovascular and Neurological Diseases Form that had been requested almost one year ago by the Registrar. The appellant reported that his family doctor was difficult to reach, and he had requested the Form be completed since April, but it was not sent in until November. The Registrar did not receive the Cerebrovascular and Neurological Disease Form. The appellant identified concerns that his family physician, Dr. M, was really his wife’s family physician and was colluding with his wife to remove his driver’s licence.

35The appellant was asked if he received assistance with his Notice of Appeal and he initially could not recall who had written the NOA for him, and then suggested it was likely someone from his office.

36During the testimony, the appellant shared that he had completed a driving assessment three weeks earlier and had failed. He said he was told he did not look over his shoulder to check for other vehicles and drove too slowly. He reported he wasn’t sure of the controls in the vehicle and didn’t think it was a fair test because he is used to driving trucks where he doesn’t need to look over his shoulder. He reported he was told that he was going to need driving lessons if he wanted to continue to drive. Under cross-examination he reported that his family doctor had referred him for this assessment, and in addition to the on-road test, he had completed “psych testing” as well where he was required to draw a clock and answer questions on a computer, but he reported he failed this part as well.

37I appreciate the appellant’s position that his medical condition will not interfere with his ability to drive. However, the appellant provided unprompted testimony that directly contradicts this position when he stated he had completed a functional driving assessment. By the appellant’s testimony, his family doctor had requested the completion of the assessment, and this testing appears to have included with both cognitive and on-road components, and the appellant testified that he failed both.

38I appreciate the appellant’s position that his wife was dishonest with the healthcare providers involved in his care when she stated he had a stroke when he was only fatigued. However, I acknowledge that a four-day admission to hospital demonstrates a level of concern among treating healthcare providers, the medical evidence available documents abnormal findings on diagnostic imaging requiring further expert consultation, and the appellant himself testified he was told he “might have had a mini stroke”. Furthermore, the appellant has submitted no evidence, medical or otherwise to support his position that his hospital discharge diagnosis was fatigue and that his wife fabricated a story in order to steal from him. Lastly, there is no clear evidence of support for reinstatement of his driver’s licence by any healthcare provider.

39Although this Tribunal is not bound by the CCMTA Standards, they can be considered when making the decision for the reason that these Standards are the result of a lengthy and intensive process to provide medical standards based on the best evidence available and with a focus on functional ability to drive rather than exclusively on medical diagnoses.

40What the CCMTA standards highlight prior to considering reinstatement is that there is no persistent cognitive, motor or sensory impairment that may result in impairment of the functions necessary for driving. From the appellant’s own testimony, he has failed testing that evaluates the functional ability to drive.

41I appreciate the hardships that the appellant is undergoing with the loss of his driver’s licence but given the medical evidence and the individual merits of this case, I believe it is reasonable that the appellant demonstrate he has no deficits that may result in impairment of the functions necessary for driving.

42As such, for the reasons cited, I am satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to drive safely.

Conclusion

43I find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely cerebrovascular disease, and that condition is likely to significantly interfere with his ability to drive a motor vehicle safely.

ORDER

44For the reasons set out above, pursuant to subsection 50(2) of the Act, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

Released: December 24, 2024

__________________________

Isla McPherson MD

Member