D.G. v. Registrar of Motor Vehicles, 2018 CanLII 127574

Date: 2018-12-12

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:

D.G.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Peter Savage, Member Joanne E. Foot, Member

Appearances: For the Appellant: Self-represented For the Respondent: Steve Grootenboer, Agent

Place and Date of Hearing: By Teleconference October 12, 2018

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant is a 77-year-old woman who appeals the suspension of her driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

2The appellant suffered a hemorrhagic stroke in July 2016 which resulted in neurological deficits and residual cognitive impairment. The specialist who initially treated the appellant for the stroke filed a Medical Condition Report with the Registrar of Motor Vehicles (the “Registrar”). As a result, by letter dated August 9, 2018, the Registrar suspended the appellant’s driver’s licence.

3The question for our determination is whether the appellant suffers from a mental condition or disability to an extent that is likely to significantly interfere with her ability to drive safely.

4For the reasons set out below, we find that the appellant suffers from a mental condition or disability, namely cognitive impairment, to an extent that is likely to significantly interfere with her ability to drive safely.

5For these reasons, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

B. ISSUES

6The issue in this appeal is whether the appellant suffers from a mental condition or disability that is likely to significantly interfere with her ability to drive safely.

7To answer that question, we will address the following issues:

a. Does the appellant have a mental condition or disability?

b. Is the appellant’s mental condition or disability, if any, likely to significantly interfere with her ability to drive safely?

C. LAW

8The Registrar has the power under s. 47(1) of the Act to suspend or cancel a driver’s licence. In this case, s. 47(1)(g) is the relevant ground for suspension. It states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

9One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the Act is that the driver suffers from a medical condition or disability likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O.Reg. 340/94 (the “Regulation”) under the Act 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;

10According to s. 14(2)(a) of the Regulation, if the Minister of Transportation is determining whether the requirements of s. 14(1) are met, the Minister may take into consideration the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA Standards”). Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

11The Registrar has the burden to establish the grounds for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the decision or order of the Registrar.

D. preliminary issue

12A Notice of Intent to Dismiss was issued in this matter as the appellant failed to appear at the case conference held on October 3, 2018. We discussed this failure to attend with the appellant who indicated that she had been out of the country for an extended period, that she did not have access to email while she was away and that she had not received the notice of the case conference sent to her. The appellant indicated that she was fully prepared to proceed with the hearing on that day and wished to do so. The Registrar’s Agent indicated that he consented to proceeding with the hearing. In view of the appellant’s explanation and the Agent’s consent, we ruled that it was fair and appropriate to proceed with the hearing and give the appellant the opportunity to participate in the proceedings.

E. ANALYSIS

a. Does the appellant suffer from a mental condition or disability?

13It is not in dispute that the appellant suffered a stroke in July 2016. In the Medical Condition Report dated August 8, 2016 sent to the Registrar, Dr. A.L. indicated “Stroke/TIA or head injury with significant deficits”. In the August 9, 2016 letter suspending the appellant’s driver’s licence, the Registrar requested completion of the Cerebrovascular Diseases Traumatic Brain Injury/Tumour or Other Neurological Diseases form (the “Cerebro Form”). Dr. A.L. completed this form on October 20, 2017 and indicated “Stroke” as the primary diagnosis. The occurrence of a stroke was also confirmed in the oral testimony of the appellant.

14In the Cerebro Form, Dr. A.L. indicated the appellant’s condition as “stable with on-going mild symptoms”. Dr. A.L. also indicated in this form that the appellant had “Cognitive impairment or limitations (e.g. attention, judgement, memory)”. It was also his opinion that a functional (driving) assessment was required at this time, referring to a pre-driving report and adding that the appellant had residual cognitive impairments.

15The pre-driving report dated October 3, 2017 was prepared by Mr. G.L., an occupational therapist working at the rehab facility attended by the appellant. A number of tests were administered as a basis for this report including tests for physical ability, vision, visual perceptual ability, memory, attention and visual scanning. In addition, a test was administered on a driving simulator. Mr. G.L. concluded that the appellant had no physical concerns and intact visual perceptual skills. However, he identified difficulty with visual attention and visual scanning which he expressed affected her performance on the driving simulator and he recommended a functional driving assessment.

16The appellant took the functional driving assessment in January 2018. The assessment centre submitted to the Registrar a Functional Driving Assessment – Medical dated January 16, 2018. This form indicates that the appellant scored adequately on the various tests administered in the testing centre. However, for the on-road test, the evaluator reported “skill deficit not functional for driving” in all categories and cited examples of failure to look ahead for hazards, failure to check blind spot, failure to signal when veering into another lane, failure to use compensation strategies and attempting to turn left on a red light.

17The evaluator recommended that the appellant take lessons with the driver rehabilitation centre. The evaluator also noted that lessons were being recommended because of the appellant’s relatively strong performance on the tests administered inside the test centre and because the appellant showed insight that she had a mild deficit in reaction time and an awareness of public safety concerns. Three lessons were recommended.

18The assessment centre filed with the Registrar a Progress and Termination Report Functional Driving Assessment – Medical dated March 21, 2018 indicating that only two of the three driving lessons recommended had been completed. The third lesson was cancelled. The report also indicates that the appellant demonstrated on-going difficulty with processing speed and reaction time through both lessons, citing failure to notice and obey stop signs on numerous occasions and driving at a slow speed on turns despite there being no hazard. As well, the instructor reported that the appellant was unable to articulate the strategies learned in the sessions such as leaving safe travelling distance between vehicles to permit safe reaction time. As well, the appellant reported thinking that the lesson went well even though she had missed stop signs.

19On July 31, 2018 the appellant attended her family physician to collect information for this appeal. At that time, Dr. R.S. completed a MoCA (Montreal Cognitive Assessment) test and by letter dated August 14, 2018 indicated the appellant’s score to be 20/30. Dr. R.S. contrasts this to the MoCA score of 26/30 done in October 2017 and also notes that the stroke left the appellant with some neurologic deficits. A score of 20/30 is in the cognitive impairment range and represents a deterioration in cognitive ability from the earlier test.

20At the hearing, we found the appellant to be well-spoken, articulate, thoughtful, candid and aware of the public safety aspects of the suspension. However, based on the opinions of Dr. A.L. in the Cerebro Form, the views of Dr. R.S. in the letter of August 14, 2018 that the stroke has left the appellant with some cognitive deficits and on the observations recorded by the evaluators and the instructors in the various functional driving assessment forms referenced above, we find that the appellant suffers from the mental condition or disability of cognitive impairment.

b. Is the appellant’s mental condition or disability, if any, likely to significantly interfere with her ability to drive safely?

21Having found that the appellant suffers from some cognitive impairment, we now must consider whether this condition is likely to significantly affect her ability to drive safely.

22The Registrar has the burden to establish that the appellant’s medical condition will likely significantly interfere with her ability to drive safely.

23In this respect, the CCMTA Standards provide helpful guidance. The final paragraph of Section 6.4 of the CCMTA Standards states that the “ …functional driving assessment is usually the most appropriate means of assessing the effects of the cognitive limitations upon driving …”

24As outlined in detail above, the results contained in the Functional Driving Assessment – Medical dated January 16, 2018 clearly indicates that the appellant has skill deficits in her driving ability. Moreover, the lessons recommended to address these skill deficits were not successful. The Progress and Termination Report Functional Driving Assessment – Medical dated March 21, 2018 indicates that the appellant was unable to integrate the strategies being taught to her into her driving, as would be necessary for safe driving. For this reason, the lessons were terminated early.

25After considering the evidence and submissions of the parties, we find on a balance of probabilities that the appellant does suffer from a mental condition or disability, namely cognitive impairment, that is likely to interfere significantly with her ability to drive a motor vehicle safely.

F. ORDER:

26For the reasons set out above, pursuant to subsection 50(2) of the Act, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.