Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2017-10-17

Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H. 8, from a decision of the Registrar of Motor Vehicles to suspend a driver’s licence under subsection 47(1) of the Act

Between:

M.S.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Kevin Flynn, M.D., Member

Appearances:

For the Appellant: M.S., B.S. and P.S., agents

For the Respondent: Kyle Biel, agent

Place and dates of hearing:

Toronto, Ontario

June 29, 2016; July 13, 2016;

September 7, 2016; December 16, 2016;

March 8, 2017;

September 20, 2017

REASONS FOR DECISION:

A. Overview

1The appellant, an 85-year-old man, appeals from a suspension of his driver’s licence effective September 20, 2015. His licence was suspended based on a physician’s report dated September 8, 2015 sent to the Registrar of Motor Vehicles (the “Registrar”) pursuant to s. 203 of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “HTA”). That section requires physicians to report to the Registrar any patient 16 years of age or over who is suffering from a medical condition that may make it dangerous for the person to operate a motor vehicle. The condition reported was dementia or Alzheimer’s.

2For reasons that follow, I find that the appellant suffers from cognitive impairment likely to significantly interfere with his ability to operate a motor vehicle safely. Accordingly, I confirm the decision of the Registrar to suspend the appellant’s driver’s licence.

PRELIMINARY ISSUES

3The appellant was accompanied to this hearing by his son and daughter-in-law. I asked the appellant’s son if he wished to act as the appellant’s agent at the hearing to provide assistance. He agreed to do so. The appellant’s daughter-in-law also provided some assistance to the appellant at the hearing.

B. ISSUES:

4The issues to be determined are

(1) Does the appellant suffer from dementia or mild cognitive impairment?

(2) If so, is the appellant’s dementia or cognitive impairment likely to significantly interfere with his ability to drive safely?

C. EVIDENCE:

Registrar’s evidence

5On September 8, 2015, a physician who saw the appellant for the first time on that day sent a Medical Condition Report to the Registrar in compliance with s. 203 of the HTA. That report stated that the appellant had “dementia or Alzheimer’s” and indicated that he had a MoCA score of 19/30. MoCA (Montreal Cognitive Assessment) is a tool used for assessment of cognitive function. A score of 26 or above is indicative of normal cognitive function.

6As a result of that report, the Registrar suspended the appellant’s driver’s licence effective September 20, 2015 under s. 47(1) of the HTA. The Registrar requested that the appellant complete a Cognitive Assessment Form.

7On September 20, 2015, the appellant’s family physician since 2010, Dr. C., completed the Cognitive Assessment Form, which stated that the appellant had mild cognitive impairment that was stable with ongoing symptoms. He recommended a functional on-road assessment.

8The appellant completed a functional driving assessment (#1) on November 24, 2015, in which his driving was assessed by an occupational therapist and a driving instructor. This was the first of three functional driving assessments that the appellant completed. Both the occupational therapist and the driving instructor found the appellant “not functional for driving”, and that the errors made were due to his medical condition. The evaluators noted difficulty with 2-3 step commands and errors related to rolling stops, maintaining appropriate speeds and blind spot checks. They found that the appellant started to correct errors after instruction and therefore recommended driver retraining.

9On January 8, 2016, the occupational therapist indicated in a report that since the November 24, 2015 driving assessment, the appellant demonstrated reduced insight and understanding of the driving program and would not be suitable for retraining.

10The Registrar informed the appellant that in order to be approved for another functional assessment, he must provide confirmation of improvement in his cognitive functions. Dr. C. repeated the cognitive assessment in February 2016, reported no change from September 2015 and recommended another on-road functional assessment.

11A second functional driving assessment was conducted at a different assessment centre, St. Elizabeth Driving Assessment and Training, on August 24, 2016. This assessment reported significant deficits in awareness and compensatory strategies. Driving errors included driving dangerously close to the curb, driving on the wrong side of the yellow line, driving too close to parked cars, straddled lanes, and very poor control on curve creating a hazardous situation. Five interventions were required by the instructor and the assessment was discontinued for safety reasons. Driving cessation was recommended. The report noted that the appellant had a stroke in 2007 and myocardial infarction (heart attacks) in 2005 and 2015.

12The appellant completed a third functional road assessment on May 25, 2017. The assessment report indicated that there were deficits in his functional driving skills and that cessation of driving was strongly recommended. The errors noted included straddling lanes on straight roadways, driving too close to the centre line for a significant distance, driving too close to the curb and parked vehicles, very late in entering the correct lane for a left turn, no scanning at intersections, and risky commitment to a left turn before establishing a view of oncoming traffic. The road test was discontinued due to safety concerns. Driving cessation was recommended.

Appellant’s evidence

13The appellant stated that he has been driving since the age of 18 and was employed as a driver in the public transit system for over 50 years, during which time he was accident-free.

14The appellant stated that the three driving assessments did not actually assess his driving, as they were very short. He gave evidence about one of his driving assessments, in which he stated that he drove down to the traffic light where there were two trucks and six cars coming. He was in the left-turn lane with his signal on, and he completed the turn once the trucks passed. He stated that the test was abandoned after the first light.

15The appellant stated that he does not have Alzheimer’s or any medical condition that affects his driving.

16The appellant’s son provided testimony and stated that he does not have concerns about the appellant’s driving.

D. LAW:

17The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence for any of the grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (d), (e) and (f) are not applicable to this appeal as they relate to misconduct, convictions and commercial motor vehicles respectively. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

18One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA 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.

19Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”) when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

20Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.

21The Registrar has the burden of establishing the ground for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

E. Submissions

22The Registrar relies on the initial Medical Condition Report that states that the appellant has dementia with a low MoCA score of 19/30. The Registrar submits that this is indicative of cognitive impairment that presents a significant risk to public road safety. The Registrar cited section 6.6.1 of the CCMTA Standards, which applies to drivers with cognitive impairment or dementia. It states that drivers are eligible for a 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.

23The Registrar submits that the appellant has had ample opportunity to show that he is able to drive safely by allowing him to take three functional road assessments, which he failed, and there is no medical recommendation for reinstatement. In addition, he was authorized to take remedial training and he failed to demonstrate sufficient awareness and understanding to be accepted for retraining.

24The appellant submits that he has been driving for sixty years, summers and winters, with heavy snow and without an accident or a mishap. He denies that he has Alzheimer’s disease and he submits that his medical history does not affect his ability to drive safely.

F. ANALYSIS:

Does the appellant suffer from dementia or mild cognitive impairment?

25I find that the appellant suffers from a mild cognitive impairment. The condition reported to the Registrar pursuant to s. 203 was dementia or Alzheimer’s disease. The appellant’s family physician diagnosed mild cognitive impairment or mild dementia. The appellant denies that he has a cognitive impairment. However, I find the evidence of the appellant’s family doctor to be more reliable than that of the appellant with respect to the appellant’s diagnosis.

Is the appellant’s mild cognitive impairment likely to significantly interfere with his ability to drive a motor vehicle safely?

26The appellant has a commendable driving record, with over 50 years of service as a driver. There is no evidence that he has ever been involved in a collision. The appellant’s history of safe driving is not at issue in this appeal. The question in this appeal is whether the appellant’s current diagnosis of mild cognitive impairment is likely to significantly interfere with his ability to drive safely. I find that his mild cognitive impairment is likely to significantly interfere with his ability to drive safely, based on the results of three functional driving assessments, of which the first noted that he was not functional for driving and the other two recommended driving cessation.

27Mild cognitive impairment is defined in section 6.1 of the CCMTA Standards as the transitional state between the cognitive changes associated with normal aging and the fully developed clinical features of dementia. Cognitive impairment or dementia may affect one or more of the cognitive functions required for driving, such as information gathering and processing, perception, recent memory, orientation, concentration, insight, attention, executive functioning, and awareness. As stated in section 6.3 of the CCMTA Standards, research clearly indicates that, as a group, those with dementia are at higher risk for adverse driving outcomes. However, studies also indicate that many individuals with dementia show no evidence of deterioration of driving skills in the early stages of their illness. Drivers with cognitive impairment must be assessed individually to determine whether their impairment significantly affects the functions necessary for driving

28The appellant participated in three functional driving assessments in order to assess his ability to drive safely, two of which were aborted due to safety concerns. The reports of those assessments showed that he had poor insight and lack of awareness of the driving environment. He made a number of unsafe driving manoeuvres. The third assessment “strongly recommended” driving cessation.

29The evidence from the road assessments clearly establishes that the appellant’s medical condition significantly interferes with his ability to drive safely. While the appellant submits that the tests were not able to assess his driving because they were aborted so quickly, I accept the explanation in the assessments that the tests were aborted while the appellant was engaged in the driving test due to safety concerns.

30On a balance of probabilities, I find that the appellant suffers from a mild cognitive impairment likely to significantly interfere with his ability to drive safely.

G. ORDER:

31For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the appellant’s driver’s licence is confirmed.