Licence Appeal Tribunal File Number: 15786/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 Section 47(1) of the Act.
Between:
Barry Umansky
Appellant
And
Registrar of Motor Vehicles
Respondent
Decision and Order
ADJUDICATOR:
Dr. Peter Savage, Member
APPEARANCES:
For the Appellant:
Barry Umansky, Appellant
For the Respondent:
Melisa Litrenta, Representative
Heard by teleconference:
May 15, 2024
BACKGROUND AND OVERVIEW
1Barry Umansky (the “appellant”) appeals the decision of the Registrar of Motor Vehicles (the “Registrar” or the “respondent”) to suspend his driver’s licence for medical reasons effective November 16, 2023.
2The Registrar takes the position that the appellant is suffering from medical conditions, namely, head injury that is likely to significantly interfere with his ability to drive a motor vehicle safely.
3The Registrar has the authority under s. 47(1) of the Act to suspend a person’s driver’s licence. 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 (“medical condition”) 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 may require a driver to provide satisfactory evidence that he or she is able to drive safely.
4The appellant appeals the suspension under s. 50(1) of the Act.
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.
ISSUE IN DISPUTE:
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.
To resolve that issue, I will address the following questions:
a. Does the appellant suffer from a medical condition?
b. If the appellant does suffer from a medical condition, is the condition likely to significantly interfere with his ability to drive a motor vehicle of applicable class safely?
RESULT
7For the reasons set out below, pursuant to subsection 50(2) of the Act, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.
ANALYSIS
a. The appellant does suffer from a medical condition
8The evidence presented at the hearing establishes that the appellant suffers from a head injury.
9In support of its allegation that the appellant suffers from the medical conditions, the Registrar relies on a Medical Condition Report (“MCR”) dated November 13 2023 by family physician, Dr. Sinha. In that report, under the heading of Stroke, TIA or Head Injury, Dr. Sinha advised that the appellant suffers from a head injury and that they felt the appellant is unsafe to drive because of it.
10Also on the Traumatic Brain Injury Questionnaire December 20, 2023, Dr. Sinha noted, “head injury in early November, no intercranial abnormalities, Patient feels he is back to his baseline.”
11The appellant testified that he does not believe he has or has had a head injury. He testified he fell off a chair while trying to turn off an alarm in his residence. He testified he struck his head in the fall. The appellant stated he lost track of time for a few days and went to Dr. Sinha to be checked was sent directly to hospital for imaging and assessment. Appellant believes that the normal imaging done in hospital rules out the possibility of head injury or traumatic brain injury.
12I cannot accept the appellant’s position that he does not, nor has had, a head injury. The written documentation by his family physician, and the fact that the appellant was sent directly to hospital from the family physician’s office convince me the appellant had a head injury. The testimony of the appellant confirming a fall and a blow to his head and a period of confusion after the fall further convinces me the appellant has had a head injury and outweighs the appellant’s position that the normal imaging rules out a head injury.
Is the medical condition of Head Injury likely to significantly interfere with his ability to drive a motor vehicle of applicable class safely?
13In support of their decision to suspend the appellant’s Class G licence due to head injury, the respondent does not rely on the Canadian Council of Motor Transport Administrators (“CCMTA”) Standards.
14The respondent relies on the recommendation of Dr. Kavanaugh (the physician who filled in the musculoskeletal questionnaire) and Dr. Sinha. Both doctors recommended a functional driving assessment. Dr. Kavanaugh in the Musculoskeletal Condition Report and Dr. Sinha in the Traumatic Brain Injury Report.
15The respondent relies on section 14(2)(b) of the HTA which requires a driver to provide the Minister with satisfactory evidence that they can drive a motor vehicle safely.
16The respondent draws attention to both Functional Driving Assessments that the appellant has completed since Dr. Sinha’s MCR A Functional Driving Assessment from Green Light Driver Therapy dated January 16, 2024 notes several driving errors and that the appellant did not pass the assessment.
Late to initiate braking
Failed to note pedestrians preparing to cross
Failed to enter left lane to initiate left turn
Attempted to pass truck when lane not clear
17The Green Light Driver Therapy Centre recommended a series of remedial driving lessons. Five lessons were carried out followed by retesting done on February 25,2024. The appellant again failed the Functional Driving Assessment and demonstrated several critical errors:
He was unable to consistently implement driving strategies taught.
Continued to make multiple critical errors during the sessions requiring Driving Instructor intervention
Stopping at green light requiring Driving Instructor to assist
Hesitation and late initiation of turns
18The appellant underwent another Functional Driving Assessment on May 2, 2024 at the Drive Again assessment centre. The result noted he had not made changes since the 5 sessions he had at Green Light Driver Therapy. He was noted to have deficits in functional driving skills, and relicensing was not recommended. It was noted that further lessons and rehabilitation were recommended as his deficits were related to his medical condition.
19The Minister’s position is that the appellant has not provided the documentation needed to prove he is safe to drive.
20The appellant’s position was that he should not have been required to have any functional driving tests as he did not have a head injury based on his negative imaging results and his obvious clinical improvement in a few weeks after his fall.
21The appellant argued Dr. Sinha and Dr. Kavanaugh had made a mistake and had not really wanted him to undergo a Functional Drivers Assessment.
22The appellant drew attention to the letter of support provided by Ms. Lynne Bohnen a long time friend of the appellant, indicating he was an excellent driver and an upstanding and honest man.
23The appellant stated he disagreed with the findings of the driving instructors and Occupational Therapists that completed his Functional Driving Assessments. He felt they overstated their concerns and that he had completed the assessments in a satisfactory manner, with only a few minor errors. The appellant also noted that the assessments were carried out in a car he was not familiar with and the presence of the two examiners resulted in him feeling a lot of pressure and anxiety.
24The appellant testified that he did learn some things from his lessons, and he has reread and studied the rules of the road.
25The appellant points to his good driving record as documented in the submission of the Registrar.
Conclusion
26I appreciate the appellant has a clean driving record and has made improvements since his fall and head injury. I accept the letter of support from Ms. Bohnen but note the last time she drove with the appellant was a month prior to his fall, in November 2023. This letter speaks to the fact that his driving was good prior to the fall in his residence. I am concerned with the appellant’s lack of insight into the results of two Functional Driving Assessments. I find there has been a deterioration in his driving skills since his fall in November 2023. Despite some improvement he has not reached a level of driving skill to allow the reinstatement of his licence. I find, on a balance of probabilities, that the appellant’s condition is likely to interfere with his ability to drive a motor vehicle of applicable class safely.
ORDER
27For 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 license.
Dr. Peter Savage, Member
Released: May 23, 2024