Licence Tribunal
Appeal d'appel en Tribunal matière de permis
DATE: 2014-10-15
FILE: 9101/MED
CASE NAME: 9101 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
Appellant Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Katherine Whitehead, M.D., Member
APPEARANCES:
For the Appellant: Self-represented.
For the Respondent: Kyle Biel, Agent
Heard in Toronto: October 9, 2014
DECISION AND REASONS
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”).
FACTS
By way of a preliminary matter, the Tribunal notes that the Appellant’s wife attended the hearing with him and assisted him as necessary through the hearing. The Registrar did not object to her participation in this manner.
The Appellant had his Class G License suspended, for reasons of cognitive impairment, on January 29, 2013. He is appealing this suspension.
In November 2010 his license had been suspended for reasons of Syncope/Loss of conciousness, Heart Disease, and Cognitive Impairment. This was as a result of a medical condition report filed by an emergency room physician. At that time, the medical report noted, in addition to the heart disease and syncope, “Demented and Alzheimers”.
The Appellant was treated for his heart disease by his cardiologist, Dr. S. This treatment included AV node ablation and the insertion of an ICD.
Dr. S mentioned the Appellant’s cognition in his notes of December 2, 2010 and September 1, 2011. His opinion, at that time, was that the Appellant’s cognitive impairment was minimal enough that he was safe to drive.
The Appellant’s driver’s license was reinstated on October 5, 2011.
A new medical condition report was filed on January 23, 2013 by Dr. R.P. Dementia/Alzheimer’s was noted as the reason for the report. The report further noted “Progressive dementia. Hospitalized Jan 2013 x 4 days”
The Appellant’s license was again suspended on January 29, 2013.
Dr. J.P., the Appellant’s geriatrician, indicated in his letter of May 24, 2013 that the Appellant “has some cognitive impairment but also had an episode of psychosis”. He filled a Cognitive Assessment Form and a Mental Health Assessment Form. Here Dr. J.P indicated that the Appellant was suffering from Vascular Cognitive Dementia with a possible frontal lobe component. This condition was considered stable and mild. The Appellant was noted to be compliant with his medications and treatment. He recommended that the Appellant be formally reassessed and have a road test to determine if he could safely drive.
The Appellant was granted a temporary license for the purpose of undergoing a driving test. He did this test on February 7, 2014.
The medical portion of the Functional Driving Assessment noted “it is the opinion of the assessor that [the Appellant] has some cognitive deficits in reasoning, exec. functioning and memory which may affect driving”.
In his road test, the Appellant “conducted 39 errors while driving”. There were, among other things, errors in left turns, checking blind spots, and choosing appropriate turning lanes. The overall conclusion of the road test was that he had deficits in Functional Driving Skills and that driving was not recommended. It was also noted that “based on cognitive deficits regarding memory and executive function, candidate is not a rehab candidate.”
The Appellant stated both in his Notice of Appeal and verbally during the hearing that he felt the Functional Driving Assessment had been unfair. The reasons given were that the Appellant felt that the examiners were unfairly trying to confuse him with tests of his short-term memory. He also noted that he found the cognitive testing to be very long.
The Appellant readily admits that he has short term memory loss and felt that the Functional Driving Assessment unfairly emphasized that deficit. He also felt that the car used for the road test was too small and that he was not comfortable in the bucket seats.
The Appellant further stated that he had a clean driving record. His driving record from the Registrar of Motor Vehicles did not show any incidents apart from the two medical suspensions already noted. The Appellant also stated that he had been driving for many years both in Canada and in England without incident.
The Appellant stated that he wanted a driving test where “someone official” was the examiner.
Both the Appellant and his wife answered the questions during the hearing in good faith. The Appellant stated that he has difficulty remembering the facts that were discussed and asked if he could have a transcript of the hearing. He was told that he could request a copy of the recording from the Tribunal after the hearing had concluded (if he felt it would be helpful). It was also suggested that he consult his copy of the Registrar’s file if he was unclear on details.
At the end of the hearing, neither Mr. Biel, nor the Appellant and his wife had any further submissions.
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?
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
Weighing the evidence on a balance of probabilities, the Tribunal finds the Appellant is suffering from a condition which is likely to significantly interfere with his ability to operate a motor vehicle safely.
Specifically, he suffers from dementia.
It was the opinion of his treating physicians that the Appellant may be safe to drive, however, he was quite appropriately referred for an independent Formal Driving Assessment. That assessment found that, his cognitive deficits were such that he cannot safely drive, the Appellant was not safe to drive.
There is no clear evidence that the Formal Driving Assessment was performed in such a sub-standard way so as to render its results questionable. Given the nature of the mistakes that were made on the road test and the cognitive deficits noted in the medical assessment, it is likely that the Functional Driving Assessment concluded correctly and that the Appellant, although he may have previously been an excellent driver, no longer possesses the necessary skills for driving from a cognitive perspective.
DECISION
Upon the application by the Appellant to appeal the decision effective January 29, 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
Katherine Whitehead M.D., Member
Released: October 15, 2014