Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2018-09-25

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:

L.H. Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Dimitri Louvish, M.D., Member Avril A. Farlam, Vice-Chair

Appearances: For the Appellant: L.H., Self-represented For the Respondent: Kyle Biel, Agent

Heard in St. Catharines: August 16, 2018

REASONS FOR DECISION AND ORDER

A. Overview:

1The appellant appeals the February 26, 2018 suspension of his driver’s licence by the Registrar of Motor Vehicles (the “Registrar”) after the Registrar received a medical report from appellant’s family physician dated February 15, 2018 diagnosing the appellant with a medical condition, namely cognitive impairment. 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 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, namely 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 a medical condition of cognitive impairment?

(b) Is the appellant’s medical condition, 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, namely 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 (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).”

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 mental condition is likely to significantly interfere with the appellant’s ability to drive safely. Based on the appellant’s mental condition, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

10The Registrar filed a medical report from appellant’s family physician, Dr. J., dated February 15, 2018 in which Dr. J. reported the appellant has dementia or Alzheimer’s; a cognitive assessment completed by Dr. J., dated March 27, 2018 in which Dr. J. reported “mild cognitive impairment or mild dementia…mile-mod dementia…” and recommended an independent functional assessment; and the results of testing at a memory clinic on December 1, 2017 to which the appellant had been referred by his family physician which found that “It does appear that there are some areas of your memory that are starting to decline…this is Mild Cognitive Impairment”. Taken together, these reports are clear and ample evidence from the appellant’s doctors of the diagnosis of cognitive impairment and, that the cognitive impairment condition is ongoing.

11The appellant testified that he feels he is able to drive perfectly well and in 70 years of driving has not committed any traffic offences. He did admit to some memory loss as a result of aging but said he still has a small repair business in a nearby municipality that he works in, that he drives to the business from his home in the country and that he has no problems driving. He said he does not know why Dr. J. would say he has dementia. The appellant said he has not taken the functional assessment recommended by Dr. J. because he does not want to spend the money to do so. Throughout his testimony the appellant variously referred to Dr. J. as “him” and “her”, and was prompted in his testimony by his daughter.

12The appellant’s daughter testified about some 40 pages of Dr. J.’s clinical notes which the appellant had filed in support of his appeal. In her testimony she questioned the accuracy of the notes, said Dr. J. made a lot of mistakes in the reports, the reports were not conclusive, that Dr. J.’s patient skills are “zero” and that Dr. J. should not have reported her father to the Registrar. She said Dr. J. did not properly diagnose her father and acted prematurely and impulsively in doing so. On cross-examination, the appellant’s daughter admitted that Dr. J.’s notes record that Dr. J. discussed memory loss with both her father and his wife in multiple appointments for a period of some nine months prior to making the report to the Registrar, beginning in May 8, 2017, and that she was only present for one of those appointments. The appellant’s daughter provided no medical evidence and confirmed that her father has not seen a geriatric physician as recommended by Dr. J. because her father did not wish to see the geriatric specialist that Dr. J. recommended, and her father has not yet been able to secure an appointment with the geriatric specialist she found on the internet.

13The appellant’s daughter also testified about a letter from another person who knows her father that states her father is able to drive. The appellant’s son testified that his father drives daily to the repair business, including on a 400 series highway and never gets lost, and there have been no complaints from customers.

14Other than Dr. J.’s notes, the testimony of the appellant’s daughter and son and the letter from the third party did not include any medical evidence regarding the appellant, the evidence was anecdotal and does not outweigh the medical evidence put forward by the Registrar.

15Dr. J.’s notes record that the appellant’s wife raised concerns about the appellant’s memory on May 8, 2017 and September 29, 2017. The September 29, 2017 notes of Dr. J. record that the appellant does drive but his wife will drive if they are both in the car and that his wife is concerned about the appellant’s long distance driving. The appellant’s wife did not testify at the hearing. Dr. J.’s notes supported Dr. J.’s reports and did not detract from the physician’s reports or raise any doubt about the diagnosis and recommendations made. The appellant’s doctors are better qualified to assess and objectively report on the appellant’s medical condition than the appellant himself or his family members and author of the letter. The appellant brought forward no medical evidence to support his view that he is able to drive and brought forward no medical evidence to refute the Registrar’s evidence. Accordingly, we find, based on the totality of the evidence, that the appellant has cognitive impairment.

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

16The appellant testified about the challenges and possible loss of independence he will face 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.

17The Registrar submits that the appellant’s mental 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.

18Based 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.

19However, the appellant’s doctors, despite the diagnosis of cognitive impairment, were supportive of the appellant being given a chance to demonstrate his ability to drive by taking a functional assessment. To date, the appellant has refused to do a functional assessment.

20In the absence of a functional assessment proving that he can safely drive, we find that the appellant does not possess the functional abilities necessary for driving. We find based on the totality of the evidence, that the appellant’s medical condition is likely to significantly interfere with his ability to drive safely.

21We appreciate that the loss of a driver’s licence can have significant consequences for the individual affected. While we understand the appellant’s concerns about the practical challenges that result from a licence suspension, 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.