P.N. v. Registrar of Motor Vehicles, 2018 CanLII 126551

Date: 2018-11-19

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) to suspend a Licence

Between:

P.N.

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND REASONS

ADJUDICATOR: Dr. Dimitri Louvish, M.D., Member D. Gregory Flude, Vice-Chair

APPEARANCES:

For the Applicant: Self-Represented For the Respondent: Kyle Biel, Agent

Heard by Teleconference: September 24, 2018

OVERVIEW

1The appellant, P.N. is an 82 year-old independently minded woman living in rural Ontario. In January 2018 she experienced a loss of balance that was subsequently diagnosed to have resulted from a stroke. She was admitted to the local hospital where she stayed for approximately three weeks. Her treating physicians filled out Medical Condition Reports advising the Registrar of Motor Vehicles (“Registrar”) of her condition and on February 2, 2018 the Registrar suspended her licence based on a physician’s report documenting deterioration of her cognitive function following the stroke under s. 47 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

2In mid-May 2018, the appellant’s family physician completed an assessment of the appellant. She had concerns about the appellant’s cognitive functioning and recommended that the appellant go for a functional driving assessment. The appellant failed this assessment in July 2018 and the Registrar confirmed the continued suspension of her licence. The appellant now appeals that continued suspension to this Tribunal.

ISSUE

3The issues we must decide are:

a. Does the appellant suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with her ability to drive a motor vehicle; and

b. Should we confirm, modify or set aside the Registrar’s decision to suspend the appellant’s driver’s licence under s. 47(1) of the Act?

RESULT

4Having reviewed all of the medical and other evidence, we find that the appellant does suffer from a mental, emotional, nervous or physical condition or disability, namely cognitive impairment, likely to significantly interfere with her ability to drive a motor vehicle. We confirm the decision of the Registrar to suspend the appellant’s driver’s licence.

ANALYSIS

Factual Background

5As stated above, the appellant is 82 years old. She lives alone in a small town in rural Ontario. She performs all of her own housekeeping tasks, including going into town to get groceries and mowing the lawn. She walks her dog every day and is generally quite active. On occasion she drives to a nearby larger town as well as to a nearby large city. She also drives other seniors to the theatre once a year, about a 45 minute one-way trip.

6On or about January 19, 2018 the appellant had issues with her balance. She went to the local clinic and was seen by a physician other than her regular family doctor. She was told that she would have to be admitted to hospital as she had had a stroke. She was moved to the local regional hospital and stayed there for about 3 weeks. She testified that she worked very hard on her balance issues and they have now fully resolved. Both the initial treating physician and the neurologist at the local hospital filed Medical Condition Reports with the Registrar under s. 203 of the Act indicating that the appellant’s ability to drive may have been impaired.

7On receipt of the Medical Condition Reports, the Registrar wrote to the appellant advising her that her driving privileges would be suspended. The suspension took effect on February 2, 2018. The Registrar’s letter set out steps the appellant could take to apply to have her licence reinstated. The first of these steps was to have her neurologist or family physician complete a medical questionnaire entitled “Cerebrovascular Diseases Traumatic Brain Injury/Tumour or other Neurological Diseases.”

8The appellant’s family physician completed the medical questionnaire on May 14, 2018 and sent it to the Registrar. The physician noted ongoing concerns with cognitive functioning and recommended that the appellant undergo a functional driving assessment. This was arranged for July 2018 in the nearby large city.

9The appellant failed both an in-clinic assessment and an on the road assessment. We have no detailed information about the in-clinic assessment, but the on-road report sets out six areas of concern:

a. Failed to observe stop sign – driver instructor had to brake

b. Dangerous lane change, other vehicle affected and had to brake heavily to avoid collision with our vehicle

c. Failure to commit to a left hand turn at a green light

d. Stop at a green light

e. Mistake parked vehicle for the stream of traffic

f. Wide turns affecting other road users

10The appellant described the test as stressful and confusing. She stated she was in a strange vehicle in an area of the city with which she had no familiarity. The instructor gave her an on-going stream of instructions while an occupational therapist in the back seat looked over her shoulder. She would like to take the test again.

11For some reason the functional driving assessment report was not forwarded to the Registrar for several months. When it was finally received, the Registrar advised the appellant by letter that her licence would remain suspended. The letter indicated that the Registrar would reconsider the suspension decision on receipt of a report from a neurologist or physician showing improvement in cognitive functioning and a successful functional driving assessment. The appellant also wants to take the functional driving assessment again. She would like to take some instruction before the test to familiarize herself with the vehicle and the area of the test.

Findings

12The essential difference between the position taken by the appellant and the Registrar’s position is the Registrar’s condition that the appellant’s physician or neurologist report improvement in the appellant’s cognitive function and recommend a functional driving assessment before the Registrar will issue a temporary licence to permit instruction and assessment.

13In all of the circumstances of this case, we accept the Registrar’s position. The appellant had a stroke that hospitalized her for three weeks. Three months after leaving hospital her family physician noted concerns about her cognitive functioning. Those concerns appear to have been borne out by the appellant’s evidence of her inability to handle the stresses placed on her during functional driving assessment and her confusion with instructions given to her by the instructor.

14In arriving at this conclusion we take note of the fact that driving on the highways may result in unpredictable situations requiring clear analysis to avoid an accident. On the evidence before us we are not satisfied that the appellant’s cognitive functioning has reached a level where she can safely respond to stressful situations that may arise, even when driving a short distance. We agree with the Registrar that a precursor to any reconsideration of lifting the current suspension must be evidence of improved cognitive function, followed by a successful functional driving assessment.

ORDER

15Pursuant to the powers vested in us by s. 50(2) of the Act, we confirm the decision of the Registrar to suspend the appellant’s driver’s licence.