Date: 2018-07-10

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 pursuant to section 47(1) of the Act to suspend a Driver’s Licence

Between:

L.K.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Erica Weinberg, M.D., Member Avvy Yao-Yao Go, Member

Appearances:

For the Appellant: L.K., Appellant

For the Respondent: Kyle Biel, Agent

Place and Date of Hearing: By Teleconference May 3, 2018

REASONS FOR DECISION AND ORDER:

A. Overview

1The appellant L.K. is an 88-year-old male who has been diagnosed with cognitive impairment/dementia by both a geriatrician (Dr. K.) and his family physician (Dr. Kh.).

2The appellant’s licence was suspended temporarily between November, 2016 and January, 2017 due to vision problems, but was reinstated on January 24, 2017, following the receipt of an updated report from his optometrist (Dr. T.).

3As a result of a report from Dr. K. expressing concerns about L.K.’s dementia, the appellant was required to undergo a Functional Driving Assessment (the Assessment). The appellant’s licence was suspended on May 11, 2017 after he failed the Assessment.

4The appellant appealed the May 11, 2017 suspension to the Licence Appeal Tribunal. By a decision dated August 25, 2017, the Tribunal confirmed the Registrar’s decision to suspend the appellant’s driving licence.

5On August 2, 2017 the appellant’s optometrist (Dr. T.) submitted a new opinion to the Registrar of Motor Vehicles, stating that L.K.’s visual acuity had again decreased such that he no longer passed the Ministry’s visual acuity requirements to continue driving.

6In January, 2018, Dr. T. wrote to the Registrar of Motor Vehicles advising that the appellant had a laser treatment and that his visual acuity once again passed the Ministry’s standards.

7On February 5, 2018, after receiving the optometrist’s report, the Registrar wrote to the appellant requesting him to submit a satisfactory Assessment before it would review his licence suspension.

8In March, 2018, the appellant filed another appeal to the Tribunal, stating that he should not have to pay for another test and that his licence should be reinstated. The appellant also insisted that he did not make any mistakes during the Assessment.

9The respondent submits the appellant’s licence should be suspended as the appellant has not submitted any new medical information with respect to his cognitive impairment/dementia since the last appeal.

10For reasons to follow, we find the appellant suffers from a mental or physical condition that is likely to significantly interfere with his ability to drive safely. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

B. ISSUES:

11The issue in this appeal is whether the appellant suffers from a mental disability likely to significantly interfere with his ability to drive a motor vehicle safely.

C. LAW:

12The Registrar has the power under s. 47(1) of the Highway Traffic Act to suspend or cancel a driver’s licence on various grounds.

13Subsection 14(1) of O. Reg. 340/94 (“Regulation”) under the HTA states in part:

(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....

14Section 14(2)(a) of the Regulation allows the Registrar of Motor Vehicles to consider the Canadian Council of Motor Transportation 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 documents.

15Under 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.

16The 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.

D. ANALYSIS:

17As noted above, the appellant’s licence was suspended temporarily between November 15, 2016 and January 24, 2017, based on an initial report by Dr. K. stating the appellant had macular degeneration and was unable to see the side of the road. The appellant’s licence was reinstated after his optometrist (Dr. T.) completed a vision report on January 6, 2017, concluding that Mr. L.K. met the vision standards under the HTA.

18Dr. K. forwarded a second report to the Registrar on February 12, 2017, this time expressing additional concerns about the appellant. In this report Dr. K. checked off that the appellant has dementia or Alzheimer’s, while noting a MoCA Score of 20/30. MoCA stands for Montreal Cognitive Assessment and is an in-office standard measurement of various cognitive domains including attention and concentration, executive functions and conceptual thinking, among other functions. A score of 26 or above is considered normal. Dr. K. also stated that the appellant needed an on-road assessment.

19The appellant failed the Functional Driving Assessment conducted on April 20, 2017. The Assessment recommended that the appellant stop driving, which triggered the current suspension.

20As noted above, the appellant appealed his driving suspension to the Tribunal. In its August 25, 2017 decision, the Tribunal concluded that the appellant failed to meet the basic standard set out in s.6.6.1 of the CCMTA. Based on the results of the functional driving assessment, the Tribunal found that “the appellant’s cognitive functions necessary for driving are impaired.” In the absence of a further functional assessment indicating that his condition does not affect his ability to drive, the Tribunal was satisfied based on the evidence that “the appellant’s dementia is likely to significantly interfere with his ability to drive safely”.

21In filing this present appeal, the appellant repeated similar arguments that he had made in his previous appeal. For example, L.K. stated that the whole issue started because he was honest when he told Dr. K. about missing an exit on Highway 401 and went to Ingersoll instead of Woodstock while driving his wife to a medical appointment. He also stated that Dr. K. had made up her mind before he went for his functional driving assessment, because she told him not to drive his own car, noting that he would not be allowed to drive home if he failed the test.

22Although the appellant requested that his licence be reinstated because there is no issue with his vision, however, his submissions do not address the actual reason for the suspension of his licence, namely that his cognitive impairment may interfere with his ability to drive.

23This panel noted that the appellant is in effect attempting to reappeal the suspension of his licence as of May 11, 2017 which was the subject of his previous appeal before the Tribunal. The Tribunal proceeded with the hearing based on the February 5, 2018 letter from the Registrar asking the appellant to provide another satisfactory functional assessment before his suspension would be reviewed.

24Although an updated (and satisfactory) vision report has been submitted to the Ministry since the appellant’s licence was suspended on May 11, 2017, there has been no new medical information with respect to L.K.’s cognitive impairment and/or satisfactory functional assessment submitted to the Ministry.

25This panel is essentially faced with the same evidence that was placed before the previous panel.

26The evidence before us shows that the appellant is a person who has been diagnosed with cognitive impairment/dementia based on the appellant’s low MoCA score of 20 out of 30.

27The diagnosis of mild-moderate cognitive impairment/dementia alone is not sufficient to withdraw driving privileges.

28We note that the standard under s.6.6.1 of the CCMTA for persons diagnosed with dementia recommends that to be eligible for any class licence, the person provide a complete medical assessment indicating cognitive functions necessary for driving are not impaired.

29In this case, the appellant did undergo, but unfortunately failed, the functional assessment in April 2017.

30While the appellant tried to convince the current panel that he did not make any mistakes during this on-road assessment, and that he should not have failed, we have no basis to reject the findings of the assessment done at a Ministry-approved centre.

31In June 2017, the appellant’s family physician since 2014 completed the Ministry’s Cognitive Assessment Form indicating that L.K. suffers from mild cognitive impairment/mild dementia and his symptoms are ongoing but stable; failed a functional assessment within the last 6 months; and requires an additional independent functional assessment.

32As the appellant has refused to undergo another functional assessment, based only on the evidence before us, we find on a balance of probabilities that the appellant suffers from a medical condition, namely cognitive impairment/dementia, that significantly interferes with his ability to operate a motor vehicle safely.

33We encourage the appellant to consider paying for a repeat functional assessment should he wish to have his suspension reviewed by the Registrar.

E. OrdER:

34We confirm the decision by the Registrar to continue to suspend the appellant’s driving privilege under section 47(1) of the HTA.