9109 v. Registrar of Motor Vehicles, 2014 CanLII 70020

Licence Appeal Tribunal

Appeal Tribunal en matière de permis

Date: 2014-10-27

File: 9109/MED

Case Name: 9109 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 Appeal a Suspended Licence

9109 Appellant

-and-

Registrar of Motor Vehicles Respondent

Reasons for Decision and Order

Adjudicator: D. Ian Turnbull, M.D., Member

Appearances:

For the Appellant: Self-represented

For the Respondent: Kyle M. Biel, Agent

Heard by teleconference: October 15, 2014

Decision and Order

This is an appeal to the Licence Appeal Tribunal (the "Tribunal") by the Appellant 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").

Background

The Appellant appealed by way of a Notice of Appeal (Exhibit 2), dated August 26, 2014.

The Appellant appeals the Order of the Registrar dated August 9, 2013 (Exhibit 1). The Registrar had received an unsolicited Medical Condition Report (MCR) dated August 8, 2013, from the Appellant's physician (Exhibit 3-tab1) which checked off "Dementia or Alzheimer's," and "threat to road safety is unknown."

Reason for the Appeal

The Appellant states in his Notice of Appeal, "this doctor is holding my driver's licence due to age discrimination."

Facts

The 91-year-old Appellant attended his physician on August 8, 2013. He does not recall the reason for the visit. His doctor of seven years does not explain his reasons for completing the MCR.

In a letter dated August 9, 2013, (Exhibit 3 – tab 2) the Registrar suspended the Appellant's driving privileges effective August 13, 2013 (Exhibit 3 – tab 11). An attached Cognitive Assessment Form (Exhibit 3-tab 2a) was to be completed with his family physician and returned to the Registrar's Medical Review Section (MRS).

The completed Cognitive Assessment Form (Exhibit 3-tab4), dated October 2, 2013, was reviewed by the Registrar's MRS. His physician indicated "moderate cognitive impairment" and was "comfortable with the Appellant doing a driver's road test."

In a letter dated November 12, 2013, (Exhibit 3-tab 5) the Registrar asked the Appellant to complete a satisfactory driver evaluation from a rehabilitation centre. The appointment was to be arranged through the Appellant's physician.

The driver's evaluation test took place on March 7, 2014, at 5 p.m., at an approved Driver Evaluation Centre. The findings from that evaluation were as follows.

• The "in office" cognitive evaluation predicted a road test chance of failure of 90%.
• The road evaluation test indicated significant driving errors by the Appellant and the road test was aborted for safety reasons (Exhibit 3- tab 9b); "driving cessation was strongly recommended."

Having reviewed the Driving Evaluation Assessment, in a letter dated April 2, 2014, (Exhibit 3-tab 10), the Registrar continued the suspension of the Appellant's driving privileges. The same letter requested "confirmation of improvement of his cognitive function and once approved" … "completion of a further driving evaluation from rehabilitation centre."

Issues

1. Should the decision of the Registrar to suspend the Applicant's licence be confirmed, modified or set aside?

2. Did the Appellant's physician send an MCR to the Registrar based on the Appellant's age (91 years) in violation of Section 15 of the Canadian Charter of Rights and Freedoms?

Law

Section 14 Ontario Regulation 340/94 of the Act states:

14. (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. O. Reg. 453/10, s. 1.

(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. O. Reg. 453/10, s. 1.

(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. O. Reg. 453/10, s. 1.

(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. O. Reg. 453/10, s. 1

Section 47 of the Act gives the Registrar the power to suspend or cancel a driver's licence.

On the grounds set out in section 14(1) of the Regulation set out above.

As set out in section 50 of the Act, a person has a right of appeal from the decision of the Registrar to suspend a licence:

Appeal

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.

Powers of Tribunal

(2) The Tribunal may confirm, modify or set aside the decision of the Minister or Registrar.

Application of the Law to Facts

The Registrar was correct in suspending the Appellant's driving privileges upon receipt of his physician's MCR dated August 8, 2013, indicating "dementia or Alzheimer's."

The Registrar has made the case that the Appellant's driving privileges should remain suspended until the MRS approves confirmation of improvement in his cognitive status.

The Registrar cites the guidelines of the Canada Council of Motor Transport Administrators (CCCMTA) – Version 13, August 2013 – (Exhibit 3 – tab12). In chapter 6 – "Cognitive Impairment including dementia" (page 157). The Regulation states the CCMTA guidelines may be considered in deciding whether the legislative test is made.

6.6 Guidelines for assessment 6.6.1 Cognitive Impairment or dementia

STANDARD

Eligible for any class licence if

• Complete medical assessment indicates cognitive functions necessary for driving are not impaired, or
• Where required, functional driving assessment shows condition does not affect ability to drive
• Conditions for maintaining a licence are met

Conditions for maintaining licence

Reassessment annually or as required

Reassessment:

• Reassess annually if a driver has dementia or a cognitive impairment that is progressive
• Otherwise, routine

Information from Health care providers

• Nature or cause of the cognitive impairment
• Opinion of treating physician whether the cognitive impairment is progressive
• Various tools such as OT driving assessments, cognitive screens and road tests may be helpful in assessing whether an individual with cognitive impairment is eligible to hold licence.

Rationale

Functional assessment is required to determine if individual can drive safely.

There is no evidence in the independent Functional Driving Assessment to support possible reinstatement of driving privileges. As set out above, the "in office" assessment predicted 90% chance of test failure. There were significant errors in the road test, and the assessment had to be aborted. In addition, the Driving Evaluation staff told him "they didn't want to see him again."

The Cognitive Assessment Form completed by his family physician of seven years on October 2, 2013 (Exhibit 3 – tab 4), is a standard form, which applies to all persons, regardless of age.

The Appellant initially vehemently denied ever bringing the Cognitive Assessment Form to his doctor. When questioned, for clarification, by the Tribunal, he eventually remembered dealing with a lady in the doctor's office asking him about "letters and numbers." From this, the Tribunal infers that a screening test for cognitive function was done at his doctor's office on October 2, 2013, as the physician indicated on the form (Part 2-1).

In Part 2-3 of the Cognitive Assessment Form, his doctor is "unsure" if the Appellant has appropriate insight into his medical condition and the impact on his functional ability to drive.

Throughout the hearing, the Appellant repeatedly maintained his physician has said and put in writing that "he (the doctor) has no medical reason to hold your license." The Appellant firmly believes that his physician had the power to suspend or restore his driving privileges.

The Registrar's Agent and the Tribunal explained that driving privileges were governed by the Registrar through the Act. The Appellant remained unconvinced, and as stated in his Notice of Appeal – "the doctor is holding my driver's license because of age discrimination."

What his physician did "hold" on August 8, 2013, was the decision to report or not report the Appellant to the Registrar, pursuant to Section 203 of the Act which reads as follows.

203. (1) Every legally qualified medical practitioner shall report to the Registrar the name, address and clinical condition of every person sixteen years of age or over attending upon the medical practitioner for medical services who, in the opinion of the medical practitioner, is suffering from a condition that may make it dangerous for the person to operate a motor vehicle. R.S.O. 1990, c. H.8, s. 203 (1).

Therefore, by law, a medical practitioner is required to report to the Registrar persons who, in their opinion, are suffering from a condition that may make it dangerous to operate a motor vehicle. This wording mirrors Ontario Regulation 340/94, Section 4 (1) (a) of the Act.

Addressing the second issue – the Appellant contends that his physician's MCR of August 8, 2013, is based on his age and is contrary to Section 15 of the Canadian Charter of Rights and Freedoms.

In affirmed testimony, the Appellant stated "his doctor wants to suspend my licence for age." He says the doctor had told him "there is no medical reason to hold your license but I'll still hold it because of your age." The Appellant states that is "illegal", and "that's why I am after him."

The Tribunal finds that there is no evidence of age discrimination in his physician's MCR of August 8, 2013, nor is there evidence of age discrimination in his physician's Cognitive Assessment of October 2, 2013. His physician's clinical impression of "dementia and Alzheimer's" in the MCR, and "moderate dementia" in the Cognitive Assessment report are solely clinical impressions based on his seven year association with the Appellant, and not on the Appellant's age.

The Tribunal is mindful of the safety of both the Appellant and the motoring public.

In conclusion, the Tribunal finds, after weighing the evidence on a balance of probabilities, the Appellant is currently suffering from a mental condition (cognitive impairment), which is likely to significantly interfere with his ability of operate a motor vehicle safely.

For consideration of reinstatement of his driving privileges, the Appellant must initially provide "confirmation of improvement in his cognitive function" and once approved completion of a further driving evaluation from a rehabilitation centre.

Decision

Upon the application by the Appellant to appeal the decision effective August 19, 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 Appellant;

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, Member

Released: October 27, 2014