Licence Appeal Tribunal
FILE: 7780/MED
CASE NAME: 7780 v. Registrar of Motor Vehicles
Appeal under Section 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 that Act - to Suspend a Licence
7780 Applicant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: D. Ian Turnbull, MD
APPEARANCES:
For the Applicant: Self-represented
For the Respondent: Kyle Biel
Heard by teleconference: January 14, 2013
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal by the Applicant respecting a decision of the Registrar of Motor Vehicles (the “Registrar”) pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
FACTS
The Applicant is a 73-year-old businessman who accompanied his wife to her appointment with their family doctor (Exhibit 3, Tab 1) on June 19, 2009. The physician’s assistant had the Applicant take a Mini Mental State Examination (MMSE) test because his wife said the Applicant “had been ugly” lately.
He voluntarily took the MMSE test and was told part way through that he had failed and that he would lose his driver’s licence. He was reported to the Ministry by his family physician in a letter dated June 19, 2009 (Exhibit 3, Tab 1) pursuant to Section 203 of the Highway Traffic Act (HTA).In that letter, his family physician said he was unable to drive because of a low (21/30) MMSE .
In a letter dated August 5, 2009 (Exhibit 1), the Registrar suspended the Applicant’s driving privileges for Medical Reasons under Section 47(1) of the Act and requested medical information regarding his cognitive function.
The Applicant then began a round of multiple physician visits and driving evaluation tests from September 2, 2009 (Exhibit 3, Tab 3) until December 11, 2012 (Exhibit 3, Tab 35). The process is driven by the Applicant’s statement (Exhibit 3, Tab 17, Page 6 … “he plans to continue to take road tests until he passes."
Although the Applicant’s wife drives, he wants his driving privileges restored so he can pull a trailer.
Letters from both his neurologist (Exhibit 3, Tab 9), dated February 19, 2010, and his family doctor (Exhibit 3, Tab 1a), dated November 18, 2010, stated he is safe to drive from a medical point-of-view.
The Applicant has taken six road tests, although only five (Tabs 5A, 7, 17, 23) are documented in Exhibit 3. The sixth test is confirmed by the Applicant, and reports of the geriatrician and driving test rehabilitation assessment staff. The Applicant has failed all six road tests conducted through multiple driving test centres, and these reports were copied to the Applicant’s physician.
The Applicant’s geriatrician, in a letter dated December 11, 2012 (Exhibit 3, Tab 35), states “I do think he qualifies for a diagnosis of mild dementia,” and “This is a change from my previous diagnosis when I believed his presentation was more in keeping with a mild cognitive impairment.” The practitioner does not say there is no medical contra indication to driving.
The six driver’s tests were conducted at three venues by different professionals who have arrived at similar conclusions. In summary, the conclusions were:
Unsafe to drive
Additional driving lessons would not be helpful
And repeat testing would not succeed
Following yet another letter,,dated November 9, 2012, from the Registrar (Exhibit 3, Tab 35) requesting another satisfactory driving evaluation, the Applicant filed a Notice of Appeal (Exhibit 2), dated November 22, 2012.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
Does the Applicant no longer suffer from a mental, emotional, nervous or physical disability likely to significantly interfere with his or her ability to drive a motor vehicle safely?
LAW
O. Reg. 340/94, Section 14 states:
(1) An applicant for or a holder of a driver’s licence must not,
(a) 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; or
(b) be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.
(2) In determining whether an applicant for or a holder of a driver’s licence of any class meets the qualifications described in subsection (1), the Minister,
(a) may take into consideration the relevant medical standards for applicants or holders of that class of driver’s licence set out in the CCMTA Medical Standards for Drivers; and
(b) may require the applicant or holder to provide evidence satisfactory to the Minister that he or she is able to drive a motor vehicle of the applicable class safely, including,
(i) any reports of examinations under section 15, and
(ii) any additional medical information.
(3) Despite clause (2) (a) and unless otherwise provided in this Regulation, if there is a difference between a medical standard set out in the CCMTA Medical Standards for Drivers and a medical standard set out in this Regulation, the Minister shall take into consideration the standard set out in this Regulation instead of the standard set out in the CCMTA Medical Standards for Drivers.
(4) In this section, the CCMTA Medical Standards for Drivers means the document entitled CCMTA Medical Standards for Drivers, published by the Canadian Council of Motor Transport Administrators and dated March 2009, as it may be amended from time to time, that is available on the Internet through the website of the Canadian Council of Motor Transport Administrators.
Section 47(1) states:
Subject to section 47.1, the Registrar may suspend or cancel,
(b) a driver’s licence; …
on the grounds of,
(d) misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a motor vehicle;
(e) conviction of the holder for an offence referred to in subsection 210(1) or (2);
(f) the Registrar having reason to believe, having regard to the safety record of the holder or of a person related to the holder, and any other information that the Registrar considers relevant, that the holder will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety; or
(g) any other sufficient reason not referred to in clause (d), (e) or (f).
Section 50 of the Act states:
50 (1) Every person aggrieved by a decision of the Minister made under subsection 32(5) for which there is a right of appeal pursuant to a regulation made under clause 32 (14) (n) or a decision of the Registrar under section 17 or 47 may appeal the decision to the Tribunal.
(2) The Tribunal may confirm, modify or set aside the decision of the Minister or the Registrar.
APPLICATION OF THE LAW TO FACTS
The Registrar has made the case that the Applicant's driving privileges should remain suspended.
The Registrar acted correctly in suspending the Applicant's driving privileges in a letter dated August 5, 2009 (Exhibit 1) asking for medical information regarding the Applicant's cognitive function.
In seven office visits to the Applicant's geriatrician over three years and a neurologist’s consultation, the working diagnosis was "mild cognitive impairment," but not dementia. The geriatrician consistently indicated there was no medical contra indication to drive.
However, in a letter dated December 11, 2012 (Exhibit 3, Tab 35), the geriatrician changes the clinical diagnosis from "mild cognitive impairment" to "mild dementia." The physician also said he had "some on-going functional changes and “on-going cognitive decline."
The Applicant's Notice of Appeal, dated November 22, 2012 (Exhibit 2) is based on a failed MMSE test in 2009. The details are spelled out (Exhibit 3, Tab 29) in a report dated April 3, 2012 and expanded by the Applicant's testimony.
The Applicant says he wasn’t paying much attention to the test; he was not told that his driver’s licence was at risk, and he was “in a hurry”, pre-occupied “with other matters.”
The physician called the next day to apologize, but had already reported him to the Registrar. The Applicant claims he passed the MMSE test later that week “with flying colours.”
The Registrar's position is based on the multiple visits to the same geriatrician over three years and comments of the staff at the driving rehabilitation assessment centres through the six failed driving tests.
The Applicant responds that a lack of recent driving experience and nervousness has made the road tests difficult. He is convinced he is a good driver and should get his licence back; "there are worse drivers on the road than me."
However, the observations of the three driving rehabilitation assessment centres consistently describe poor insight into his abilities, consistently minimizing difficulties (Exhibit 3, Tab 17), delayed information processing and diminished awareness of environment (Exhibit 3, Tab 7), perceptual defects (Exhibit 2, Tab 11) and diminished attention and judgement (Exhibit 3, Tab 23).
The Applicant says the Registrar and Driver Evaluation Centres "just do what they want to do," tell lies -- "he caught some of the lies; his problem isn't going away because they just fail you anyway." He feels he should just "roll over and die" because he can't get any place with them (at the MTO and driver test centres) and half of what they write down is a lie. Why do I have to take the driving test when I did nothing wrong." He feels he has been "red-flagged" and is resigned to the permanent loss of his driving privileges.
The Tribunal’s primary focus is on the suspension for medical reasons (Exhibit 3, Tab 2a) given the particular statutory provisions, not the six failed driver's tests.
The Tribunal believes the change in the geriatrician’s clinical diagnosis on December 11, 2012 from "slight cognitive impairment" to “mild dementia” is significant (Exhibit 3, Tab 35). The geriatrician’s multiple previous reports had indicated there was "no medical contra indication for driving."
The Tribunal refers to O. Reg. 340/94, Section 14(1)(a) which states:
(1) An applicant for or a holder of a driver’s licence must not,
(a) 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; or
In considering the evidence and the Act,, the Tribunal is mindful of the safety of both the Applicant and the motoring public.
The Tribunal finds that the evidence supports the conclusion that on a balance of probabilities, the Applicant is suffering from a medical condition which is likely to significantly interfere with his ability to operate a motor vehicle safely.
DECISION
Upon the application by the Applicant to appeal the decision dated August 5, 2009 of the Registrar to suspend his driver’s licence pursuant to Section 47(1) of the Act and having considered the evidence filed with the Tribunal and the submissions of the Registrar and of the Applicant;
IT IS THE DECISION OF THE TRIBUNAL, pursuant to the authority vested in it under section 50(2) of the Act, that the decision of the Registrar be confirmed.
LICENCE APPEAL TRIBUNAL
D. Ian Turnbull, MD, Presiding Member
RELEASED: January 22, 2013