A.D. v. Registrar of Motor Vehicles, 2018 CanLII 128750

DECISION AND ORDER

Date: 2018-09-07

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:

A.D. Appellant

-and-

Registrar of Motor Vehicles Respondent

Panel: Erica Weinberg, M.D., Member Avril A. Farlam, Vice-Chair

Appearances: For the Appellant: A.D., Self-represented For the Respondent: Kyle Biel, Agent

Heard by teleconference: August 2, 2018

REASONS FOR DECISION AND ORDER

A. Overview:

1The appellant appeals the November 15, 2015 suspension of his driver’s licence by the Registrar of Motor Vehicles (the “Registrar”). The Registrar had previously suspended the appellant’s driver’s licence in 2012 but had temporarily re-instated his licence on several occasions to allow the appellant to attend functional assessments. 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 November 15, 2015, under s. 47(1) of the HTA due to the appellant’s cognitive impairment.

B. POST HEARING SUBMISSIONS FROM APPELLANT:

2On August 9, 2018 the appellant unexpectedly sent to the Tribunal a post-hearing submission consisting of his personal notes and asked the Tribunal to accept this in support of his appeal. Respondent’s legal representative consented to the Tribunal accepting this post-hearing submission for consideration. We accepted the appellant’s post-hearing submission and upon review found that it did not support the appellant’s appeal because it did not contain any relevant information.

3The appellant also requested that the Tribunal re-open the hearing so that he could make additional submissions. The Tribunal offered the appellant the opportunity to put those additional submissions in writing but he declined to do so. Respondent’s legal representative opposed the request to re-open the hearing on the basis that the Tribunal gave the appellant every opportunity to provide both oral and documentary evidence at the hearing. We agree with the submissions of respondent’s legal representative on this point. The Tribunal has given the appellant every opportunity to provide both oral and documentary evidence at the hearing and has considered the post-hearing submissions the appellant did make as set out above. The purpose of the hearing was to allow the appellant an opportunity to present his evidence and submissions and this was fully and fairly extended to the appellant. The request to re-open the hearing was denied.

C. ISSUE:

4The 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?

D. CONCLUSION:

5For 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.

E. LAW:

6The 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).”

7One 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;

8Section 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.

9Under 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.

10The 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.

F. EVIDENCE AND ANALYSIS:

(a) Does the appellant suffer from cognitive impairment?

11As 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.

12The Registrar filed five medical reports from the appellant’s family physicians which confirm that the appellant has been diagnosed with cognitive impairment since 2012 by all of his doctors. In a Medical Condition Report dated 2012-04-10 Dr. M. reported the appellant has “dementia or Alzheimers…returned from Florida with pneumonia; has not regained cognitive abilities to a point where he should be driving”. In a cognitive assessment faxed October 30, 2012 Dr. M. reported “moderate cognitive impairment or moderate dementia”. On August 7, 2015 Dr. S.M. in a cognitive assessment reported “…moderate cognitive impairment or moderate dementia…expected to deteriorate”. On October 17, 2017 Dr. B-M. in a letter directed to the appellant, reported “..dementia is a degenerative condition…I am unable to attest that there has been improvement in your condition”, and in a diabetes assessment stated “Patient has moderate dementia which is the cause of his license suspension”. 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 improvement.

13The appellant testified that he feels he can drive perfectly well. He said that he could not have passed any written tests because he has a grade four education. He confirmed that his previous physician was Dr. M. and his current family physician is Dr. B-M.

14We 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 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 likely to significantly interfere with his ability to drive safely?

15The 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.

16The 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

17Based 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.

18However, 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. The appellant failed to pass the functional assessment on December 19, 2012 and again on October 30, 2015. He testified that he did not pass the functional assessments because he was nervous and the tester was watching him like a hawk. While some nervousness during a functional assessment can be understandable, the 2012 functional assessment records “…driving errors were outside the range of normal, healthy drivers and beyond reasonable road safety…” and strongly recommends driving cessation. The 2015 functional assessment records “mild-moderate cognitive impairment…deficits in functional driving skills – driving not recommended.”

19Based on the results of these two functional assessments and in the absence of a more recent functional assessment, 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, namely cognitive impairment, is likely to significantly interfere with his ability to drive safely.

20We 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.

G. 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.