Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
2013-04-24
FILE:
7970/MED
CASE NAME:
7970 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
Applicant
Applicant
-and-
Registrar of Motor Vehicles
Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR:
Dr. David Borenstein, Member
APPEARANCES:
For the Applicant:
Self-represented
For the Respondent:
Kyle Biel, Agent
Heard in Toronto:
April 16, 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
On March 29, 2012, the Applicant went to see his family physician. Dr. S.I. saw him. She was a locum physician. She filed a Medical Condition Report with MTO. She stated the Applicant suffered from a mental or emotional illness – unstable, and Dementia or Alzheimer's. She noted "This 69 year male was diagnosed with Alzheimer's disease but also has very labile emotional issues including being quick to anger and aggressive behaviour." She was also very clear about being a locum physician, but had access to the patient's chart from January 2009. As a result of this report, MTO suspended the Applicant's driver's licence effective April 19, 2012. Their letter listed those items MTO required to consider the reinstatement of the licence. Items requested included proof of compliance to medical treatment, reference to illness stability, and a clinical evaluation of the Applicant's cognitive function.
On May 30, 2012, the Applicant's regular family physician, Dr. W.S sent MTO a Medical Condition Report noting Dementia or Alzheimer's and stating "The behavioural issues are in remission, and patient may resume driving. For now the patient shouldn't drive unaccompanied." Upon receipt of this report, MTO notified the Applicant by post that the suspension of driving privileges remained. At this time, they included two forms they wanted completed, a cognitive assessment and a mental health assessment.
The Applicant had these forms completed by Dr. W.S. on August 6, 2012. The cognitive assessment noted the Applicant suffered from mild cognitive impairment/dementia or an Alzheimer's and vascular mixed type. The condition is likely to progress, but is currently stable. There are no difficulties in judgement, but the Applicant has impaired concentration and attention. The Applicant has insight into his condition and complies with treatment.
The mental health assessment additionally noted the Applicant has depression, but is stable. This assessment went on to state, "The patient is currently taking medication which is currently managing his cognitive impairment, mood and behavioural problems."
On August 18, 2012, the Applicant saw Dr. J.I., his Geriatrician. Her letter noted the Applicant suffered from dementia since 2009. He tried the drug Aricipet. He had been irritable with difficult behaviours. He has also been on Remeron, and is now taking Effexor. Since the discontinuation of the Remeron, his explosive behaviours have "decreased dramatically." He gets anxious and agitated, but not daily, and it is not disabling. The physician felt some of these outbursts were not a result of cognitive decline, but of a change in the Applicant's housing situation, which no longer exists. The Applicant's MMSE score was 29/30. In relation to the Applicant's driving, the physician stated, "testing had been reasonably maintained and that driving would be acceptable." A note was to be drafted to the MTO. In the letter's summary, the plan was for various medication changes and in relation to driving, the following was written; "The driving issue has been discussed and we await an MTO reply which I think will be to try a road test from MTO. I will inform them that I will support the driving from an academic point of view." The Geriatrician then sent a Medical Condition report to MTO, citing "very mild dementia". The physician also suggested some further tests to rule out the exact nature and cause of the dementia. MTO responded by post, stating the driving privileges were to remain suspended.
The Applicant's driving record was submitted during the hearing. Only the current suspension is noted.
The Applicant's submissions:
In his Notice of Appeal to the Tribunal, the Applicant wrote a letter in which he stated that the emotional outburst that caused the initial medical report to be sent by the locum physician was based on a reaction to Remeron. This medication has since been stopped. His family physician and Geriatrician both support a return to driving. He maintained this opinion at the hearing. His wife attended as a witness. The Applicant doesn't understand why Dr. J.I. stated he could drive and then sent a medical condition report to MTO. When asked about a driving test, he stated the cost of such a test is prohibitive. He feels that if he is ever a danger driving, he will voluntarily relinquish his licence.
The Registrar's submissions:
The Registrar feels that both Dr. W.S. and Dr. J.I. have written reports noting cognitive decline that will eventually progress. Furthermore, this cognitive impairment may possibly interfere with the Applicant's ability to drive a car. No actual driving test has been performed to see if he is capable of driving. If the emotional outburst the Applicant complained of initially were due to the Remeron, then once the drug discontinued, its effects should have been dissipated by the time the report was written by the long-standing physicians. Although there are many favourable things mentioned in the medical reports, the Registrar states that based on CCMTA guidelines, the Applicant does suffer from a cognitive illness that can affect his ability to drive.
ISSUES
Should the decision of the Registrar to suspend the Applicant's licence be confirmed, modified or set aside?
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 issue at hand is whether or not the Applicant suffers from a cognitive impairment that is severe enough to likely significantly interfere with his ability to drive his vehicle safely at this time.
According to CCMTA standards, mild cognitive impairment is defined as "usually referring to the transitional state between the cognitive changes associated with normal aging and the fully developed clinical features of dementia." These guidelines then proceed to list those signs and symptoms they consider to define mild cognitive impairment from various forms of dementia. The reports from by the Applicant's family and geriatric physician support very mild dementia or cognitive impairment, both explicitly in their wording; and when the Applicant's current cognitive deficits are compared to the definition of mild cognitive impairment as defined the CCMTA guidelines.
Furthermore, according to the CCMTA guidelines, a person is eligible for any class of licence if: a complete medical assessment indicates the cognitive functions necessary for driving are not impaired, if a functional driving assessment (when required) shows the condition does not affect the person's ability to drive, and the conditions for maintaining a licence are met. These criteria are presented by the CCMTA even with the awareness that people with any cognitive impairment are at risk of increase accidents (a fact presented within the guidelines). The Registrar has not made any claim that the Applicant's physical function is a problem, nor that the criteria for licensing are not met. The Registrar's objection to reinstatement of the driving licence is based on reports of the Applicant's cognitive abilities.
The initial medical condition report was based on the Applicant's emotional fluctuations, which the Applicant's Geriatrician states are in remission and "not disabling". Furthermore, it appears that the two medical condition reports sent to the MTO from Dr. W.S. and Dr. J.I., were being used as a mere means to clarify the Applicant's condition to the MTO, not to report him for licence suspension. The actual statement by the family physician was "patient may resume driving…" The fact that he felt the Applicant should be accompanied while driving, doesn't detract from the fact that he surmised motor vehicle operation to be acceptable. The actual statements by the Geriatrician were "testing was reasonably maintained and driving would be acceptable" and in relation to the correspondence with the MTO, "I will inform them that I will support the driving from an academic point of view." This clearly shows that the Applicant's primary physicians feel he is cognitively safe on the road in control of a motor vehicle.
The Registrar's position that the Applicant's condition may deteriorate is a reasonable concern. However, the Applicant cannot be judged on his future condition, as there are many cases were a person might eventually be unable to drive. What matters is his current cognitive ability. Based on the evidence presented, the balance of probabilities favours that the Applicant, in his current state of health, is capable of operating a motor vehicle safely.
DECISION
Upon the application by the Applicant to appeal the decision dated April 19, 2012 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 set aside.
LICENCE APPEAL TRIBUNAL
Dr. David Borenstein, Member
RELEASED: April 24, 2013