Shirley McQuillan v. Registrar of Motor Vehicles, 2019 CanLII 101646

Licence Appeal Tribunal File Number: 12285/MED

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 licence pursuant to Section 47(1) of the Act.

Between:

Shirley McQuillan

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

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

Appearances:

For the Appellant: Shirley McQuillan, self-represented

For the Respondent: Kyle Biel, agent

Heard by teleconference: October 16, 2019

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellant appeals the March 10, 2019 suspension of her 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”), every prescribed person shall report to the Registrar any person 16 years of age or older who has or appears to have a prescribed medical condition, functional impairment or visual impairment that may make it dangerous for the person to drive. After receiving a report from a hospital consultant in geriatrics following an examination on February 26, 2019 the Registrar suspended the appellant’s driver’s licence under s. 47(1) of the HTA due to appellant’s diagnosis of cognitive impairment.

ISSUE

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

• Does the appellant suffer from cognitive impairment?

• Is the appellant’s medical condition of cognitive impairment, if any, likely to significantly interfere with her ability to drive safely?

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 her ability to drive safely. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

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.

EVIDENCE AND ANALYSIS

Does the appellant suffer from cognitive impairment?

9We find that the appellant has cognitive impairment based on the medical evidence filed by the Registrar.

10The Registrar filed a medical condition report from Dr. Zavodni, a hospital consultant in geriatrics, with an examination date of February 26, 2019 that diagnoses the appellant with dementia.

11The Registrar also filed a cognitive assessment from Dr. Gerald Fong, the appellant’s family physician since 2015, in which he diagnoses moderate cognitive impairment based on cognitive screening, reports current status as “stable with ongoing symptoms”, reports a MOCA test score of 13/30 and recommends a functional driving assessment.

12The appellant took a functional driving assessment on July 8, 2019, which she failed. The report from the driving centre was filed by the Registrar. The report noted that the appellant made critical errors while driving, stopped in a live lane, drove too slowly, impeding other traffic, noted verbal and physical intervention was required from the driving instructor and recommended that the appellant not drive.

13The appellant wrote in her Notice of Appeal that she does not have dementia. She testified that she passed the cognitive testing at the hospital and the person that took away her licence was not a doctor. She did not file any medical information in support of her testimony that she does not have cognitive impairment.

14Based on our analysis of the evidence, we are of the view that the hospital consultant in geriatrics, the appellant’s family physician Dr. Fong and the driving assessors who conducted the functional driving assessment are better qualified to assess and objectively report on the appellant’s medical condition and ability to drive. We accept this evidence over that of the appellants. Accordingly, we find that the appellant has cognitive impairment on a balance of probabilities.

Is the appellant’s medical condition likely to significantly interfere with her ability to drive safely?

15The appellant’s position is that she is a safe driver and the suspension of her licence should be set aside. The appellant testified that she feels she is able to safely drive and she didn’t pass the functional assessment because they made her drive on a road she was not familiar with, the assessors lied when they said she made mistakes driving, she doesn’t trust the assessors, they didn’t like her and were mean to her. She said she has been driving for 50 years and there was no problem at all until she broke her hip. She is afraid that she might fall on the bus and taxis are expensive for her.

16The 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

17The appellant would not be eligible for a licence at this time based on this standard. Neither of the appellants doctors, including her family physician since 2015, indicate that the appellant has the cognitive ability to drive. The appellant failed the functional driving assessment on July 8, 2019. The report from the functional driving assessment recommends that the appellant should not be driving. There was no medical information supporting reinstatement of appellant’s driving licence or tending to contradict the medical evidence filed by the Registrar.

18Based on these reports we find that the appellant does not possess the functional abilities necessary for driving and we find on a balance of probabilities, based on the totality of the evidence, that the appellant’s medical condition, namely cognitive impairment, is likely to significantly interfere with her ability to drive safely.

19We 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.

ORDER

20For 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.