Licence Tribunal
Appeal d'appel en
Tribunal matière de permis
FILE: 8255/MED
CASE NAME: 8255 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: Garry Fisher, M.D., Member
APPEARANCES:
For the Applicant: Marc Gagne, Agent
For the Respondent: Russell McKnight, Agent
Heard in Ottawa: August 27, 2013
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal (the “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”).
PRELIMINARY
A brief discussion between Agent for the Applicant and the Respondent on the subject of the language of the proceedings was resolved satisfactorily. With the consent of the Applicant and his Agent, the hearing proceeded in English.
FACTS
The Applicant initially came to the attention of the Ministry of Transport (MTO) on May 19, 2011. A Form 203 was filed by Dr. M.C.C. a family physician serving in a hospital in the region of the Applicant’s home. He had been admitted to hospital after an apparent fall. In the menu of boxes, “other” was selected with an explanatory note: “cognitive deficits”.
It further stated:
Recent admission to hospital. Cognitive deficits noticed. May be related to polypharmacy and depression. Scored below normal on paper/written driving tests. (MVPT 26/36): reaction time 6.5 seconds (below normal) Will be re-evaluated in 2-3 months..
Dr. M.C.C. had known the Applicant for four days.
On May 25, 2011, the MTO wrote the Applicant requesting a detailed assessment from his doctor – to be submitted by July 24, 2011.
A handwritten note on a prescription pad dated July 28, 2011, was submitted to the MTO by his family doctor – Dr. T.E.
Att = MOT RE = Cognitive function. I assessed Mr. (the Applicant). His cognitive function is grossly normal. If any concerns please consider a road driving test.
On September 28, 2011, the MTO wrote the Applicant to notify him that his medical report was approved and for him to notify them if there was a change in his “medical condition.”
The next report is dated December 10, 2012. It is another Form 203 by Dr. L.K. a geriatrician, in a hospital setting. “Dementia or Alzheimer’s” is checked. The Applicant informed the Tribunal that he was called in to go over his long list of medications i.e. as an outpatient. The Form 203 notes that the Applicant was known for one week – the Applicant says he saw Dr. L.K. on one visit only. Her note reads:
“Patient has significant cognitive deficits. MVPT 21/36 (<10th percentile).Slow reaction time. Unable to repeat trails B. Suggests not safe to drive. Cannot drive unless he undergoes an on-road driving evaluation.”
On February 6, 2013, the Ministry suspended the driving licence of the Applicant pending completion of a satisfactory driving evaluation.
The evaluation began with an eye test. His vision is normal.
No medical assessment was requested, but the Occupational Therapist has fortunately filled that void with a summary and a list of eleven commonly prescribed medications for the elderly. (covering hypertension, diabetes, hyperlipidemia, hypothyroidism, anemia, anxiety)
An MMSE test can be used to assess dementia and Alzheimer’s. The Applicant scored 29/30, the normal being >27. The MMSE test puts into question the validity of the Form 203 “dementia or Alzheimer’s” checked box.
A driving test was completed.
Strengths were listed:
- Leaves appropriate space behind vehicles when stopped at intersections
- Makes appropriate decisions at yellow lights
- Appropriate 3 point turn
Identified problems:
- Required “queuing” to don seatbelt
- Straddled the median lane on two occasions
- Inconsistent speeds – went too slow or too fast
- failed to check blind spots even after “cuing”
- perhaps the most significant problem was “misunderstood or misinterpreted driving instructors commands on several occasions”
The Applicant disagreed with the assessor who recommended that he “currently” not drive. The assessor seemed to fall back on “emphasizing the deficits in proprioception which were demonstrated during in-clinic testing”.
ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?
In particular: does the Applicant suffer from a mental, emotional, nervous or physical disability likely to significantly interfere with his ability to drive a motor vehicle safely?
The medical history of the Applicant is sketchy at best. Alzheimer’s was diagnosed by a geriatrician, yet when tested with a measurable scale, the Applicant scored near perfect – the only missed point being a failure “in the language subset.”
The question of language may have some bearing on the Applicant’s response to driving instruction during the road test. He does seem fluent in English and is a retired city worker who at one point was a foreman who operated heavy equipment.
The Applicant’s Agent alluded to nuances of language having some part in interpreting driving instruction, when the Applicant has been driving for 50 or 60 years.
Reports from the drive test centre are full of errors which the Applicant’s Agent was quick to point out. Names were incorrect, numbers were changed, words were interchanged and then spelled incorrectly. It did not engender a sense of confidence in the report.
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.
Section 47(1) of the Act gives the Registrar the power to suspend or cancel a driver’s licence on the ground(s) set out in section 14 (1) of the Regulation set out above.
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
Determining driving capability is not a simple task. It should be done fairly and be based on reproducible data.
This question of the Applicant’s ability to drive is a life-altering one in terms of mobility for him. The evidence for cancelling his driver licence is inconsistent.
At the same time, he should be cautioned to not drive under any adverse conditions e.g. bad weather, night, etc.
Weighing the evidence on a balance of probabilities, the Tribunal finds the Applicant is not suffering from a 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 effective February 6, 2013, 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 set aside.
LICENCE APPEAL TRIBUNAL
Released: September 3, 2013