M.H. v. Registrar of Motor Vehicles, 2018 CanLII 52323

Date: 2018-04-24

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:

M.H.

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

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

Appearances:

For the Appellant: M.H. and S.H., representative of M.H.

For the Respondent: Kyle Biel, Agent

Place and date(s) of hearing: By Teleconference February 5, 2018

REASONS FOR DECISION AND ORDER:

A. OVERVIEW

1The appellant is a 67-year-old man whose driver’s licence was suspended after the Ministry of Transportation received an unsolicited functional driving assessment report indicating that he has a condition which may affect his ability to drive safely. As a result of the report, the Registrar of Motor Vehicles (the “Registrar”) suspended the appellant’s driver’s licence effective March 4, 2017 under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2The question for our determination is whether the appellant suffers from a mental or physical condition that is likely to significantly interfere with his ability to drive safely.

3For the reasons set out below, we find that the appellant suffers from a mental or physical condition to an extent that is likely to significantly interfere with his ability to drive safely.

4For these reasons, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

B. PRELIMINARY ISSUES

5The Registrar’s Agent (the “Agent”) raised a preliminary issue as to whether the appellant would be taking a further driving evaluation. He indicated that the Ministry of Transportation (the “Ministry”) had received a request from the appellant, M.H., for a temporary driver’s licence which would enable the appellant to complete a driving evaluation at a driver’s evaluation centre in [ ] on February 15, 2018. The Agent asked whether it was the appellant’s intention to attend that appointment, scheduled ten days after the hearing date. S.H., the daughter and representative of the appellant, indicated that they had cancelled this appointment.

6The Agent referred to the fact that some of the medical reports submitted following the suspension of the appellant’s driver’s licence indicated that the appellant had suffered a seizure. The Agent acknowledged that this appeared to be a mistake or a misdiagnosis and, in any event, that this was no longer an issue of concern to the Ministry.

ISSUES:

7The issue in this appeal is whether the appellant suffers from a mental or physical condition that is likely to significantly interfere with his ability to drive safely.

8To answer that question, we will address the following issues:

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

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

C. LAW:

9The 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) 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).”

10One 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 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 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;

11According 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 (“CCMTA”) Medical Standards for Drivers. Similarly, the Tribunal may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.

12The 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. ANALYSIS

13The documentary evidence in this case covers a period of about 15 months and consists of two completed Functional Driving Assessments – Medical, a number of other completed forms of results of medical examinations submitted under s.15 of the Regulation and various letters and consultation reports of four doctors. In addition, the affirmed testimony of S.H. and M.H. was received by the Tribunal.

14One day in the fall of 2016, the appellant found that he was unable to remember the name of his wife’s cell phone provider. He was sufficiently concerned about this incident of memory loss that he contacted his family doctor, Dr. V.A., who suggested that he go to an emergency department right away. The appellant did so and the hospital admitted M.H. and performed extensive tests and investigations over a period of about a week. The appellant was seen by a neurologist, Dr. H.P., at this time. The various tests and investigations disclosed that the appellant has brain lesions of unknown origin.

15S.H.’s testimony paints a clear picture of the difficult journey that M.H. and his family have been on for the past 15 months. The absence of a definitive diagnosis and clear treatment plan for the appellant has been and continues to be a frustrating and distressing situation for them. S.H. also testified that her father’s employment had been terminated in late 2017, stating that the union had refused to accommodate him. We are sympathetic to their circumstances and understand that these circumstances are a source of significant practical, financial and emotional difficulty for the family.

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

16In connection with this issue, we considered the following documents:

i. the neurological consultation report resulting from two visits with Dr. H.P. in November and December, 2016,

ii. the Functional Driving Assessment – Medical dated February 6, 2017 conducted at the Saint Elizabeth assessment centre in Toronto (the “First Functional Driving Assessment”),

iii. the Medical Condition Report form dated February 17, 2017 submitted by Dr. H.P. under section 203 of the HTA, which requires all medical practitioners to report any person older than sixteen who is suffering from a condition which may make it dangerous for the person to drive,

iv. the Medical Report form dated March 9, 2017 completed by Dr. V.A., the appellant’s family doctor of approximately 15 years,

v. the Cerebrovascular Diseases Traumatic Brain Injury/Tumour or Other Neurological Disease form dated March 9, 2017, completed by Dr. V.A.,

vi. the Functional Driving Assessment – Medical dated July 20, 2017 conducted at the DriveAgain assessment centre in Toronto (the “Second Functional Driving Assessment”), and

vii. the Cognitive Assessment form dated November 19, 2017 completed by Dr. V.A.

17The neurological consultation report discloses that M.H. has mild changes to cognition. In the context of discussing whether the appellant should be driving, Dr. H.P. refers to the first MoCA (Montreal Cognitive Assessment) test score. While she does not set out the score, we can infer that the score is less than a pass for this test given the conjecture by Dr. H.P. that the result may have related to language difficulties, English not being the appellant’s first language. Dr. H.P. also notes that the appellant improved (from the test conducted a month earlier) upon drawing a clock and a cube when the family translated the instructions for him. Again, she did not specify whether the appellant passed the second MoCA test but did recommend that the appellant take a functional driving assessment. The Medical Condition Report dated February 17, 2017 submitted by Dr. H.P. likewise indicates the condition of cognitive changes.

18M.H. provided some medical history included in the First Functional Driving Assessment. This indicates he had been having memory issues at work. In addition, cognitive testing was also performed as part of this evaluation. The appellant scored in the 25 to 50 percentile range in the Trails A test and in the 10 to 25 percentile range in the Trails B test. In the MVPT-4 test of visual perception, the appellant scored in the 13th percentile. These results are consistent with cognitive limitation.

19In the Mental Competence portion of the Medical Report form dated March 9, 2017, Dr. V.A. indicates that the describes the appellant as “competent” and having “good” judgement. This is somewhat at odds with Part 2 (Medical History and Present Condition) of the Cerebrovascular Diseases Traumatic Brain Injury/Tumour or Other Neurological Disease Form completed on the same day in which Dr. V.A. indicates the box for “cognitive impairment or limitations”. Dr. V.A. also expresses that an independent functional driving assessment is required in the latter form.

20In the cognitive portion of the Second Functional Driving Assessment, the appellant scored in the average range for the Trails A test but was unable to complete the Trails B test owing to reported confusion. The MVPT-3 (visual perception) test was not completed owing to “slowed processing speed” and the MoCA cognitive assessment test was not completed due to time limitations. The evaluator concluded that the appellant had physical strength, coordination and range of motion for driving, but that cognitive ability was lacking.

21In the Cognitive Assessment form dated November 19, 2017, Dr. V.A. ticks the boxes indicating that the MMSE (mini mental state examination) cognitive screening test had been conducted, that the appellant has “mild cognitive impairment or mild dementia” and that the appellant’s condition is stable with symptoms resolved. Further, Dr. V.A. ticked the box indicating that M.H. does not require an independent functional assessment. In the additional comments portion of the form, Dr. V.A. expresses the opinion that M.H.’s “condition has significantly improved. He hasn’t had any symptoms.”

22The documentary evidence reviewed above is consistent in concluding that the appellant suffers from some degree of cognitive limitation.

23S.H. submits that Dr. H.P., the first neurologist who examined the appellant in late 2016, did not have any baseline knowledge of the appellant’s cognitive condition and that the conclusions in her consultation report and everything that flows from that report, including the functional driving assessments and subsequent action by the Ministry based on the functional driving assessments, should be discounted or disregarded.

24We accept that baseline and long-term knowledge of a patient is and can be important to a medical diagnosis. However, this is not the only factor that underpins a medical diagnosis. In this case, we give weight to the fact that Dr. H.P. is a specialist, with specialized education, training and experience in this field. In addition, Dr. H.P. performed cognitive testing on the appellant which yielded important information informing the basis of her diagnosis. Dr. H.P., through the tests she conducted was, in effect, establishing a baseline. Moreover, as a specialist neurologist, we accept that identifying a cognitive limitation is well within her area of expertise.

25For these reasons, we do not accept that Dr. H.P.’s conclusions, or the reports and other results flowing from Dr. H.P’s conclusions, should be discounted or disregarded and we give full weight to them.

26S.H. also submits that the more recent medical reports and letters describe improvement in M.H.’s condition and that these should be given the greatest weight. There are four items relevant in this respect.

27The first of these items is a report dated September 18, 2017 from Dr. S.C., an infectious disease specialist, who is following the appellant in relation to his brain lesions. This report notes that some swelling continues to exist and is suggestive that there may have been some improvement in this regard. Dr. S.C. also indicates that he was asked to respond to the Ministry’s query in relation to the appellant’s ability to drive a car. Dr. S.C. declined to do so and indicates that he does not know the appellant clinically well enough to know his baseline level of cognition. We do not view this report as evidence of improvement in the appellant’s cognitive condition and will give it no weight for that purpose.

28The second and third items both emanate from Dr. V.A., being the Cognitive Assessment form dated November 19, 2017 and a letter dated November 22, 2017. The Cognitive Assessment form does indicate that M.H.’s cognitive condition has improved. However, Dr. V.A. notes that the condition of “mild cognitive impairment or mild dementia” continues to exist. Dr. V.A. also recommends against a further functional assessment by ticking the “No” box. The letter is helpful in that it states that there has been no recurrence of the episode of memory loss which began the odyssey for M.H.

29The final item is a letter from Dr. E.B. dated December 8, 2017. Dr. E.B. is a neurologist and epileptologist. The letter is positive in that it confirms that there is no concern about seizures or multiple sclerosis for the appellant. The Ministry clarified at the outset that it is not pursuing the seizure issue. Dr. E.B. explicitly states that he does not have any results of cognitive testing and “is not in a position to comment on that.”

30In examining these more recent medical reports, they either do not speak to the appellant’s cognitive abilities or confirm that he suffers from a cognitive limitation. For these reasons, we do not accept the assertion that these later reports should be given more weight.

31We are prepared to accept that the appellant’s complex medical conditions have shown recent improvement. However, the neurological consultation report, the First Functional Driving Assessment, the Cerebrovascular Diseases Traumatic Brain Injury/Tumour or Other Neurological Disease Form, the Second Functional Driving Assessment and the Cognitive Assessment form are consistent and each supports the conclusion that M.H. suffers from a cognitive limitation. We find this to be the case.

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

32The evidence before the Tribunal relating to the appellant’s ability to drive safely consists of the two functional driving assessments referred to above.

33For the on-road portion of the First Functional Driving Assessment, an occupational therapist and driving instructor were in the vehicle with the appellant. Each noted skill deficits as “not functional for driving”. Specifically, the appellant had poor awareness at times of the driving environment and was unable to adequately compensate for any cognitive deficits. The occupational therapist noted that the appellant made high risk errors and that physical and verbal interventions had been required. The driving instructor reported that multiple errors had been made as enumerated in a “DORE report”, a report that was not provided to the Tribunal. The recommendation was “Driving Not Recommended” owing to deficits in functional driving skill. In the comments section, the evaluators expressed the view that the appellant’s driving is “outside the range of healthy, normal drivers” and they recommended cessation of driving. Their opinion was that the appellant was not a candidate for driver training.

34An occupational therapist and driving instructor were in the vehicle for the on road portion of the Second Functional Driving Assessment. Each noted skill deficits as “not functional for driving” in relation to awareness of the driving environment and ability to use compensating strategies. A number of mistakes are enumerated including hesitating at stops, driving too slowly, failing to check blind spots on lane changes, missing signage, missing speed bumps, failing to notice other vehicles honking and cutting off another car without realizing it. The highway portion of the test was not undertaken owing to M.H.’s “unsafe driving skills”. The occupational therapist on road score is 18/40 and she comments that the appellant showed lack of judgement and lack of insight into his condition. The driving instructor’s on-road score is 10/33. The evaluators noted that the appellant is unable to drive independently, he forgets instructions and requires “repeated cuing from the driver rehab specialist”.

35The Second Functional Driving Assessment also concludes that M.H. should not be driving. Specifically, the overall recommendation is “Deficits in Functional Driving Skills – Driving Not Recommended”. It also states that the appellant should not be considered for a further functional assessment and that he is not a candidate for rehabilitative driving lessons.

36The evidence in the two Functional Driving Assessments are consistent and emphatic that the appellant does not have the skill and/or ability to drive safely. S.H. submits that the functional driving assessment procedure as a whole lacks efficacy and, as such, is unfair to the appellant. She further submits that the appellant should not, therefore, be required to undergo a further functional driving assessment before having his licence reinstated and that the results of the past functional driving assessments should be discounted or disregarded.

37In an email to the Tribunal dated January 19, 2018, S.H. submits that “functional assessments are under scrutiny owing to their ineffectiveness according to medical journals”. The medical journals are not named, nor were any articles submitted to the Tribunal for our consideration. Lacking any such evidence, we are unable to give any weight to this assertion.

38Also in the January 19, 2018 email and reiterated in oral testimony, S.H. characterized the driving assessment centres as “mere money making companies”, and expressed the view that they deliberately fail people in order to make more money on re-tests. S.H. testified that, after the second functional driving assessment, she had advocated with the evaluators to “give him [the appellant] a chance” by permitting the appellant to take the rehabilitation driving lessons offered by the driver assessment centre. The Agent pointed out that had the driver assessment centre been primarily motivated by money, offering lessons would have been in their interest. We surmise that the assessment centre declined to do so because lessons were unlikely to benefit the appellant. We are unable to find merit in this submission.

39Finally, S.H. expressed that the structure of these evaluations does not take into account the pedagogical differences between an Eastern education (to which the appellant has been exposed) and a Western education. In this respect, we note that the Functional Driving Assessment - Medical form contains a query of the evaluator that is relevant in this regard. It states: “Was the overall in-clinic portion of the evaluation conducted using screening tools appropriate to the patient’s medical condition(s), education and language spoken?” This indicates to us that the process is designed to have some sensitivity to this issue. In addition, this query of the examiner was answered in the affirmative. As such, we are unable to accept this assertion.

40The Agent described that driver assessment centres must meet criteria established by the Ministry to be approved as such. In addition, the centres and their personnel are required to adhere to standards set by the Ministry. He agreed that functional driving assessments are expensive and stated that the Ministry does not “ask for these lightly” but that the Ministry gives great weight to functional driving assessments.

41Finally, we note the final paragraph of Section 6.4 the CCMTA Medical Standards for Drivers guidelines where it states that the “…functional driving assessment is usually the most appropriate means of assessing the effects of the cognitive limitations upon driving …” The CCMTA has existed for over 75 years and is Canada’s official organization for coordinating matters dealing with highway safety and other transportation matters and are considered authoritative.

42We are satisfied that the functional driving assessment procedure is an appropriate and effective test to assess driving ability and do not accept the submission that the overall process is unfair. In reaching this conclusion, we put significant weight on the view of the CCMTA that it is the best way to assess driving ability in cases where the degree of cognitive limitation is unclear. As such, we see no reason to discount or disregard the results of the two functional driving assessments.

43S.H., in very strong terms, asserted that the Second Functional Driving Assessment was unfair to the appellant and that the results thereof should be discounted or disregarded. The test consisted of a written portion followed by an on-road evaluation and it is her position that both portions were unfair. When questioned, S.H. allowed that she was not in the car for the on-road portion of the test. She also testified that there was “a lot at stake” for the appellant and that, as a result, he was quite nervous.

44S.H. expressed that the person administering the written portion of the test did so in a manner that was "extremely poor" in that she failed to provide clear instructions and guidelines, did not inform M.H. of applicable time limits in advance and, generally, of what he could expect. In addition, she asserts that the evaluator “maintained a judgemental look the whole time." S.H. concludes that all of these factors made for an "unpleasant and derogatory environment for the appellant" which made him nervous and led him to fail the test. We note that item 3 in Section 3 of the assessment form indicates that the appellant was given an overview of the testing which is inconsistent with S.H.’s assertion. Notwithstanding, we accept the possibility that this was not actually done or that the overview was not given in a manner easily understood by the appellant.

45In relation to the on-road portion of the test, S.H. testified that there was a lot of construction in the area near the assessment centre, with barricades, lane closures and two-way streets becoming one-way. She submits that this exacerbated the appellant’s nervousness and was not a fair environment in which to take the driving test. We note that, not being in the car, S.H. does not have direct knowledge of the route taken for the driving test. That being said, we acknowledge that the construction would have made the test more difficult, but regard negotiation of construction zones as a necessary driving skill, construction being a very common occurrence in the city where the appellant lives. Even assuming that the appellant was required to drive through a construction zone, we do not accept that this rendered the test unfair.

46S.H. testified that she had expressed anger at the DriveAgain personnel as to the manner in which they had administered the written portion of the test. She testified that she believes the negative report was a direct result of and a response to her anger and criticism. She later stated her belief that the report was motivated by malice.

47S.H. has not asserted that the first functional driving assessment was unfair to the appellant (except in relation to the unfairness of the entire procedure which, as above, we do not accept.) Yet the conclusions of the two assessments are essentially identical in that each identifies deficits in the appellant’s functional driving skills such that driving is not recommended. In both cases he was not seen as a candidate for further driver training. The consistency of these test results is persuasive. We note that the appellant appears to have fared a bit more poorly on the second evaluation and we allow that this could be accounted for by M.H.’s heightened nervousness and related factors enumerated by S.H.

48We are prepared to accept that the second functional assessment was administered in a manner that was considerably less than ideal for Mr. M.H. We do not accept, however, that the entirety of the results of this evaluation should be disregarded as lacking in veracity or motivated by malice. We are persuaded that the core finding of deficits in functional driving skill are valid.

49There is no evidence before us supporting the view that the appellant has the ability to drive safely. We note, as well, the portion of the Second Functional Driving Assessment that expressed “[M.H.] should not be considered for another driving evaluation.” Notwithstanding, the Ministry extended the appellant an opportunity to take a further functional driving assessment. In addition, the Tribunal granted a motion in December 2017 to extend time to permit the appellant to have additional time to engage translators to assist the appellant in taking that further functional driving assessment, despite the fact that the hearing had earlier been noted peremptory on the appellant, that is, without possibility of further delay. While we do not draw any negative inference from the fact that the appellant declined to move ahead with a third functional driving assessment, we believe that he has been given every reasonable opportunity to set himself up for success and demonstrate that he does have the ability to drive safely.

50After considering the evidence and submissions of the parties and in the absence of any evidence that the appellant has the ability to drive safely, we find on a balance of probabilities that the appellant does suffer from a physical or mental condition that is likely to significantly interfere with his ability to drive a motor vehicle safely.

E. ORDER:

51For 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.

LICENCE APPEAL TRIBUNAL

____________________________

Dr. Peter Savage, Member

____________________________

Joanne E. Foot, Member