9148 v. Registrar of Motor Vehicles, 2014 CanLII 79512

Licence Tribunal

Appeal d'appel en

Tribunal matière de permis

DATE:

2014-11-28

9148/MED

9148 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

Appellant

-and-

Registrar of Motor Vehicles

Respondent

Kevin Flynn, M.D., Member

For the Appellant:

Self-represented

For the Respondent:

Sonia De Santis, Agent

Heard in Toronto:

November 5, 2014

REASONS FOR DECISION AND ORDER

This is an appeal to the Licence Appeal 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").

PRELIMINARY MATTERS

At the commencement of the hearing, Ms. De Santis, on behalf of the Registrar, explained to the Appellant the options available to him. The options were as follows. The Appellant could have a Functional Assessment at an approved Driver Evaluation Centre or the hearing could be adjourned to a future date to permit the Appellant time to make a decision to undergo an evaluation and then to proceed with a hearing if necessary. Lastly, the parties could proceed with the hearing as scheduled.

Following some discussion, during which the Appellant made clear his disagreement with the process that led to the Medical Condition Report under section 203 and suspension of his driving privilege under section 47(1) of the Act, the Appellant informed the Tribunal that he wished to proceed with the hearing.

The Tribunal recognised that the Appellant not only had a hearing impairment but that it was necessary for the process to be explained in detail repeatedly. In spite of this, the Appellant interrupted the proceedings frequently and he was reminded on several occasions that order must be kept and due process observed.

The Appellant was seated close to the Member in order to accommodate his hearing impairment. The hearing then proceeded.

EVIDENCE

An unsolicited Medical Condition Report was forwarded to the Registrar on October 31, 2010, by Dr. B., family physician in compliance with section 203 of the Act.

The report, dated October 31, 2010, stated the following:

(The Appellant) is unsafe to drive

He initially participated in a research study in assessing driving in seniors with mild cognitive impairment compared with seniors with no cognitive impairment

He participated as a senior without cognitive impairment

On a road test conducted by DriveAble he received a fail rating ("driving errors were outside the range of normal healthy drivers").

When retested six days later he received a fail rating again.

At my suggestion he arranged his own driving assessment at DriveAgain and underwent a full assessment including an OT assessment and an on-road evaluation.

Following the On-Road evaluation, DriveAgain concluded that independent driving is not recommended.

The driver is aware of this report.

Attached to the Medical Condition Report were three documents:

Report of Driving Assessment dated August 12, 2010, by DriveAble in which it stated: "Driving cessation is strongly recommended".
Copy of a three page letter dated August 19, 2010, sent to the family physician, Dr. B., by Dr. N, principal investigator at a University Rehab Centre. The letter described in detail the study entitled: "Assessing Driving performance in Persons with Mild Cognitive Impairment and Mild Dementia". (The Appellant) volunteered in the control group, with a re-test to be performed within 7-days. He received a fail rating "driving errors were outside the range of normal healthy drivers and beyond reasonable road safety". The recommendation was "driving cessation is strongly recommended".
Copy of a Driver Evaluation-Initial Report, by DriveAgain, performed on September 29, 2010, sent to Dr. B., family physician. Recommendation: Independent driving is not recommended.

On November 5, 2010, the Registrar informed the Appellant that his driving privilege was suspended under section 47(1) of the Act due to a report of cognitive impairment.

In order to be considered for reinstatement he was required to arrange a detailed up-to-date report from his doctor. The report was to include the following:

The results of all investigations, diagnosis, prognosis, treatment, current status, confirmation that the condition is controlled and that there are no other medical concerns that may impact your ability to safely operate a motor vehicle.

A clinical evaluation of your cognitive functions. Once this has been reviewed and approved by this office, you may be required to undergo a driving evaluation at a rehabilitation centre.

On January 18, 2011, Dr. B. forwarded a three page report, dated December 10, 2010, by a neuropsychology specialist, Dr. D.R. who stated as follows:

The net result is a normal cognitive profile, with the sum of (the Appellant's) scores on clinical indicators of the KBNA falling above the cut-off for impairment. There is no evidence of a neurodegenerative process and mild cognitive impairment also does not appear to be a consideration at this time.

As already indicated, his greatest concern at this time is the suspension of his driving licence. Given his intact test performance, this issue bears reconsidering.

On February 11, 2011, the Registrar informed the Appellant that to determine whether he can safely operate a Class "G" vehicle, they required a satisfactory driving evaluation from a rehabilitation centre.

On November 4, 2011, the Registrar received a letter from Dr. R., Staff Psychiatrist at the Senior Centre which stated as follows:

(The Appellant) has been under my care since 2009.

The purpose of this letter is to state that he is no longer suffering from depression and that he is off all antidepressant medication. He does not have problems with attention and concentration.

He is keen to have his driver's licence reinstated.

On November 7, 2011, the Registrar informed the Appellant that following review of reports received on his behalf, it had been decided that the suspension should remain.

He was requested to take the letter to his physician and have the following information forwarded to the Medical Review Section: confirmation that there has been a significant improvement in his cognitive functions and completion of a satisfactory driving assessment.

On December 13, 2011, the Registrar informed the Appellant that following review of his file, to determine whether he can safely operate a motor vehicle, they required a satisfactory driving evaluation from a rehabilitation centre. The Registrar attached a list of frequently asked questions and answers about driver evaluation and a long list of testing centres.

On February 13, 2012, the Registrar received a four page letter from the Appellant.

The Tribunal affirmed the Appellant and allowed him to enter this letter as his evidence in chief.

The highlights of this evidence are as follows:

In April 2010 he volunteered for the aforementioned study at a Senior Centre. He was selected to be in the control group which consisted of seniors without cognitive impairment.
Following failure at two evaluation tests performed at no cost he agreed to pay for a third Evaluation at a different centre. As noted above, he failed the third evaluation.
He questioned the necessity of being tested at an Approved Driving Assessment Centre.
He requested that he be tested at a regular MTO driving test centre.

There was no cross-examination of the Appellant.

On March 21, 2012, the Registrar wrote to the Appellant, stating:

We have recently reviewed your file in light of your recent correspondence. However, as previously requested in our correspondence dated December 12, 2011, to determine whether you can safely operate a Class 'G' vehicle, we require a satisfactory driving evaluation from a rehabilitation centre.

Dr. B., the Appellant's family physician wrote to the Registrar on August 13, 2014, stating:

I last saw (the Appellant) on April 14, 2014 for an annual physical at which time no significant health issues was identified. He has advised me that he is seeking to have his driver's licence reinstated. I am not aware of any health issues that would preclude driving, however, I feel that reinstatement should be based on a formal assessment at a driving rehabilitation centre approved by the Ministry of Transportation as per the protocol for driver reinstatement.

The Registrar's Agent entered the Appellant's driver record that shows no infractions and zero demerit points.

ISSUES

Does the Appellant suffer from a mental, emotional or physical condition or disability likely to significantly interfere with his ability to drive a motor vehicle safely?

Should the decision of the Registrar to suspend the Appellant'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 Respondent relies on the results of three separate driver evaluations conducted in 2010-2011 that showed a fail rating on each occasion. This led to a Medical Condition Report completed by the Appellant's family physician in compliance with section 203 of the Act. The Registrar was therefore justified in issuing a suspension of the Appellant's driving privilege under section 47(1) of the Act and in continuing the suspension upon failure to arrange an evaluation at an approved driver evaluation centre as requested by the Registrar in letters dated November 7, 2011, December 13, 2011, and March 21, 2012.

Cognitive impairment is no longer deemed to be an issue, based on medical evidence by the Appellant's family physician on August 13, 2014.

The Appellant relies on a clean driver's record. He objects to the requirement for a driver evaluation at his own cost and points out that the initial two evaluations were performed as part of a university based study in which he was entered as a senior driver without cognitive impairment.

The Tribunal finds as follows:

Deficiencies documented by three on-road evaluations performed in August and September, 2010 justified the statutory Medical Condition Report by the Appellant's family physician in compliance with section 203 of the Act on October 31, 2010. This report was attached to copies of the three on-road evaluations upon which the physician relied.
The Tribunal notes that on the reporting form, under "Other" in the list of most common conditions reported, the physician stated that the Appellant was "Unsafe to Drive".
The Physician included a narrative that stated that the Appellant volunteered for inclusion in a university-sponsored study in assessing driving seniors with mild cognitive impairment compared with seniors without cognitive impairment. The Appellant participated as a senior without cognitive impairment.

The study included on-road evaluations at the commencement and a repeat on-road evaluation a week later. The Appellant failed both evaluations and the family physician was notified by the Principal Investigator for the study. The Ministry was not notified at this stage. On the advice by his physician, the Appellant undertook a third on-road evaluation at his own cost and with a different approved centre. He failed this evaluation and the physician then notified the Ministry.

The Registrar issued a suspension under section 47(1) of the Act on November 10, 2010. The letter of suspension stated that the medical report was submitted in compliance with the Act regarding "your reported cognitive impairment".

The family physician arranged a referral to a neurophysiologist for cognitive assessment. The neurophysiologist found no evidence of cognitive impairment in a report dated December 10, 2010. A staff psychiatrist at the Senior Centre confirmed on November 4, 2011 that the Appellant no longer suffered from depression, was off medication and had no problem with attention and concentration.

The family physician confirmed on August 13, 2014, that the Appellant did not have any health issues on April 14, 2014, that would preclude driving.

The Tribunal finds that the Registrar erred in issuing a suspension on the basis of a report of cognitive impairment. The Tribunal heard no evidence that supported the diagnosis of cognitive impairment.
Weighing the evidence before it, the Tribunal finds that the Registrar may have had reasonable grounds to issue a suspension under section 47(1)(g) of the Act based on the report of a failed on-road evaluation of his driving ability.
The Registrar has certain responsibilities under the Act and Regulations to ensure public safety on the roads. In view of the Appellant's failed three on-road evaluations, the Registrar may exercise other mechanisms available to it regarding the question of reinstatement of the Appellant's driving privilege

DECISION

Upon the application by the Appellant to appeal the decision dated November 15, 2010, 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 set aside.

LICENCE APPEAL TRIBUNAL

Kevin Flynn, M.D., Member

RELEASED: November 28, 2014