Date: 2018-11-09

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:

R.B.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Erica Weinberg, M.D., Member

Avril A. Farlam, Vice-Chair

Appearances:

For the Appellant: R.B., Self-represented

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: October 11, 2018

REASONS FOR DECISION AND ORDER

A. Overview:

1The appellant appeals the June 26, 2017 suspension of his driver’s licence by the Registrar of Motor Vehicles (the “Registrar”). Pursuant to s. 203(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), all medical practitioners are required to report any person 16 years of age or older who is suffering from a condition that may make it dangerous for the person to drive. The Registrar suspended the appellant’s driver’s licence on June 26, 2017 under s. 47(1) of the HTA due to the appellant’s cognitive impairment.

B. ISSUE:

2The issue in this appeal is whether the appellant has a medical condition, specifically cognitive impairment, likely to significantly interfere with his ability to drive a motor vehicle safely. In order to answer that question, we will address the following issues:

(a) Does the appellant suffer from cognitive impairment?

(b) Is the appellant’s medical condition of cognitive impairment, if any, likely to significantly interfere with his ability to drive safely?

C. CONCLUSION:

3For the reasons that follow, we find that the appellant suffers from a medical condition, specifically cognitive impairment, 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.

D. LAW:

4The 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 (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

5One 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;

6Section 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.

7Under 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.

8The 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. EVIDENCE AND ANALYSIS:

(a) Does the appellant suffer from cognitive impairment?

9As set out below, we find that the appellant has cognitive impairment and that this medical condition is likely to significantly interfere with the appellant’s ability to drive safely. Based on the appellant’s cognitive impairment we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

10The Registrar filed a medical condition report dated June 23, 2017 from Dr. H., a specialist in geriatric medicine, indicating that the appellant suffers from dementia or Alzheimer’s and delirium. In this report, Dr. H. noted “…family concerns re driving…dementia since 2012.” In addition, Dr. H. recorded “impaired on cognitive tests”: (mini) Mental State Examination 23/30; Montreal Cognitive Assessment (MOCA) 18/30; Trails B – unable.” The Registrar also filed a report from the appellant’s family physician, Dr. B., dated December 7, 2017, which diagnosed the appellant with mild cognitive impairment or mild dementia and records that the appellant had MOCA testing in June and October, 2017 and comments “Although he is anxious to drive, testing shows deficits”. The appellant took a functional driving assessment on January 30, 2018 and did not pass. The recommendation was that the appellant not drive, and the report records: “In clinic findings consistent with on road performance with evidence of difficulties in cognition, perceptual and processing abilities. Not candidate for rehab”. On July 3, 2018 in a letter addressed to the Medical Review Section, Ministry of Transportation, Dr. B. wrote: “I can confirm that (appellant) has had further cognitive testing which did not show significant improvement in his cognitive function. I do not think another functional assessment would be helpful”. There is clear and ample evidence from the appellant’s doctors of the diagnosis, that the cognitive impairment or dementia is ongoing and there has been no significant improvement.

11The appellant testified that he feels he can drive perfectly well because he has driven for 67 years without an accident and was a mechanic for 37 years. He testified that he believes the doctors and the functional assessment people worked together to make sure he could not drive and that most of what the doctors have written about him is not right. The appellant testified that Dr. H. wrote on the functional assessment form that he was not to pass.

12When questioned about his medical conditions, the appellant testified that he has recovered from the delirium he suffered post bladder surgery, and is fine to drive. He also mentioned that he had a heart attack more than 10 years ago, has trouble raising his right arm above his shoulder and otherwise, suffers only minor issues such as cuts. The appellant did not mention Alzheimer’s or dementia as one of his ongoing medical issues. When asked about medications he takes regularly, the appellant said that he takes about ten medications, one of which is Galantamine.

13We find that the appellant’s doctors are better qualified to assess and objectively report on the appellant’s medical condition than the appellant himself. The appellant is taking Galantamine, a medication used to treat mild to moderate dementia associated with Alzheimer’s disease. The appellant brought forward no medical evidence to support his view that he is able to drive safely. Accordingly, we find, based on the totality of the evidence, that the appellant has cognitive impairment.

(b) Is the appellant’s medical condition of cognitive impairment likely to significantly interfere with his ability to drive safely?

14The appellant testified about the challenges and loss of independence he has faced as a result of the suspension of his licence. The appellant’s position is that he is a safe driver and the suspension of his licence should be set aside.

15The Registrar submits that the appellant’s medical condition is severe enough that he should not be permitted to drive. The Registrar’s position is that the appellant presents a safety risk at this time. The Registrar relies on the guidelines contained in the CCMTA Medical Standards for Drivers (the “Standards”) with respect to cognitive impairment (chapter 6). Guideline 6.6.1 states that individuals with cognitive impairment 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

16Based on this standard, the appellant would not be eligible for a licence. None of the appellant’s doctors have given any indication that the appellant has the unimpaired cognitive functions necessary for driving.

17The appellant failed to pass the functional driving assessment on January 30, 2018. The recommendation was that the appellant not drive. The report records that the ‘in clinic’ cognitive testing revealed cognitive difficulties that may impact ‘on road’ performance. These ‘in clinic’ cognitive findings were consistent with the ‘on road’ performance, which showed evidence of difficulties in cognition, perceptual and processing abilities. Furthermore, the report stated that the appellant was not a candidate for rehabilitation.

18We find that the appellant does not possess the functional abilities necessary for driving safely based on the results of the functional driving assessment and the medical reports from the appellant’s doctors. We find based on the totality of the evidence that the appellant’s medical condition, namely cognitive impairment, is likely to significantly interfere with his ability to drive safely.

19We appreciate that the loss of a driver’s licence can have significant consequences for the appellant. While we understand the appellant’s concerns about the practical challenges that result from a licence suspension particularly because he lives in the country, we must apply the provisions of the HTA and regulations, keeping in mind the objective of ensuring public road safety.

F. ORDER:

For 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.