Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis

Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2019-10-28

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.L.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: A.L., self-represented

R.D., care team member

For the Respondent: Kyle Biel, agent

Stephen Grootenboer, agent

Heard by Teleconference: June 5, 2019 and October 17, 2019

A. Overview:

1The appellant 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 “HTA”).

2In August 2015, the appellant was the driver of a motorcycle which was struck by a vehicle. The appellant suffered multiple fractures, a punctured lung, and a severe brain injury from this event. She was hospitalized and had extensive in-patient and out-patient rehabilitation following this event.

3In 2016, it was deemed that the appellant had recovered sufficiently from her traumatic injuries to have her driving abilities assessed through a formal functional driving assessment. Following this assessment and a further 20 hours of in-vehicle training/rehabilitation at an approved driving centre, the appellant regained her driver’s licence.

4On February 21, 2018, the appellant attended, by vehicle, a police station for an unrelated matter. The officer on duty noted that the appellant smelled from cannabis and performed a sobriety test. Subsequently, the officer filed a Request For Driver’s Licence Review with the Registrar of Motor Vehicles (the “Registrar”).

5By letter dated August 27, 2018 the Registrar suspended the appellant’s driver’s licence for medical reasons under s. 47(1) of the HTA. In the letter to the appellant, the Registrar stated that prior to approving the appellant for another functional driving assessment, they requested: confirmation of appropriate insight/sufficient understanding of her medical condition and the impacts on her ability to drive; an improvement in her difficulties with judgement and emotional control; details around her cannabis usage; and confirmation that she is clinically and functionally stable.

6A hearing commenced on June 5, 2019 with all parties present. Partway through the hearing it was determined that medical information that may affect the outcome of the hearing was not yet available. On consent of both parties, the hearing was adjourned to a later date.

7All parties received additional documents, including additional medical information, prior to the hearing rescheduled for October 17, 2019.

8For the reasons that follow, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

B. ISSUES:

9The issue in this appeal is whether the appellant suffers from a medical condition, namely traumatic brain injury-related cognitive disorder and/or traumatic brain injury-related adjustment disorder, which are likely to significantly interfere with her ability to drive a vehicle safely.

10To answer that question, I will address the following issues:

a. Does the appellant suffer from traumatic brain injury-related cognitive disorder and/or traumatic brain injury-related adjustment disorder?

b. Are the appellant’s traumatic brain injury-related cognitive disorder and/or her traumatic brain injury-related adjustment disorder, if any, likely to significantly interfere with her ability to drive a vehicle safely?

C. LAW:

11The respondent has the burden of establishing the grounds for suspending the licence on a balance of probabilities.

12The 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 clauses (d), (e), (f) or (g) of that section. Clause (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

13One 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 likely to significantly interfere with his or her ability to drive safely. Clause 14(1)(a) 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;

14Section 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “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.

15Under 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.

16A person whose licence is suspended under s. 47 of the HTA may appeal the decision to the Tribunal. The Registrar has the burden of establishing the grounds 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.

D. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from traumatic brain injury-related cognitive disorder and/or traumatic brain injury-related adjustment disorder?

17I find that the evidence presented establishes that the appellant suffers from traumatic brain injury-related cognitive disorder and traumatic brain-injury-related adjustment disorder.

18The appellant testified that in August 2015 while driving her motorcycle, she was struck by a vehicle. According to multiple reports submitted as evidence, the appellant suffered many broken bones, a punctured lung, and a severe brain injury as the result of the accident.

19She was hospitalized for a period of time following the accident, then transferred to an in-patient rehabilitation facility and has continued to this day under the care of an out-patient multidisciplinary care team.

20However, as per the evidence before me and the appellant’s testimony, she has fired a number of the members of her out-patient care team over the past few years, including her personal in-home support worker(s) and occupational therapist(s). The appellant currently has no occupational therapist or in-home support worker.

21Dr. W., the appellant’s family physician from late 2017 until early summer 2019, submitted multiple completed reports and forms to the Registrar, available as evidence.

22In these reports and forms Dr. W. consistently stated that the appellant suffered a catastrophic/severe brain injury in 2015 and suffers a great deal of rage and emotional lability as a result of this brain injury.

23Dr. W.’s completed Medical Review form (June 12, 2018) and Mental Health Assessment form (July 12, 2018) clearly indicate that the appellant has ongoing issues with: emotional control, mild cognitive impairment, and difficulty with judgment. Furthermore, Dr. W. suggested an “in-depth in-car assessment before any further decisions are made about her licence.”

24However, there is some contradictory information in Dr. W.’s completed reports and forms, including: when Dr. W. became the appellant’s family physician (September vs. November 2017); prescribed medications (none vs. medical cannabis); symptoms/conditions for which the appellant uses/used medical cannabis; and level of insight (“diminished insight”, August 15, 2018 vs. “insight within normal limits”, January 30, 2019).

25The appellant testified that: she did not see Dr. W. very often; did not receive and/or refused prescription medications from Dr. W.; her medical cannabis was prescribed by a pain clinic; her insurance company will no longer pay for medical cannabis; she still occasionally smokes cannabis, although she cannot quantify the amount she smokes at a time; she is aware to wait 6-8 hours following cannabis inhalation to drive; she received a letter from Dr. W. several months ago that stated that she was fired as a patient; and she is in the process of starting with a new family physician.

26The January 2019 discharge summary from Ms. B., the appellant’s occupational therapist for 13 months, states that as the appellant “lacks full insight and awareness into her impairments, it remains challenging for her to accept supports being offered and recognize the benefits, she remains highly reactive and emotional, often blames others when things don’t go the way she wants, an [sic] does not recognize the negative impact her behaviour has on support personnel.”

27On February 14, 2019 the appellant had an assessment by a new occupational therapist Ms. U., who works in the capacity as a neuro rehabilitation consultant.

28According to this assessment, some of the appellant’s symptoms/ongoing issues include: reduced attention plus distractibility; reduced memory and information processing speed; impaired executive functional skills (difficulties with planning, organization, multi-tasking, problem solving, reasoning, initiation and task completion, judgement, awareness, and insight); cognitive-communication issues (tangential communication, expressive language issues which result in becoming angry/frustrated when she feels that she is not being heard); mood disorder; behavioural dysregulation; and lack of awareness and insight into her injuries and behavioural presentation. Furthermore, Ms. U. recommended that the appellant have 24-hour in-home skilled supervisory support.

29When questioned, the appellant stated that she did have enhanced in-home support for a period of time. However, she went on to further state that she stopped allowing the care givers into her apartment as she “is quite capable of caring for herself” (e.g. making her own meals, taking taxis when needed, socializing with friends). She also stated that Ms. U. has not been her occupational therapist for a number of months.

30In May 2019 the appellant had an in-depth two-day neuropsychological evaluation by psychologist Dr. F.

31The formally diagnosed clinical disorders of the appellant’s accident-related impairment made by Dr. F. are: i) cognitive disorder (moderate, chronic, with diminished insight) and ii) adjustment disorder (chronic with mixed disturbance of emotions and conduct).

32In addition, Dr. F.’s evaluation indicated that on measures more sensitive to neurotrauma the appellant demonstrates: deficits in new learning, memory and aspects of executive functioning; limited use of strategies to organize new information; being easily overwhelmed by volume or rapidly presented information; and being unable to benefit from repetition or reminder cues and tendencies to confabulate.

33Furthermore, Dr. F.’s evaluation stated that the appellant’s “view that she is largely recovered from her brain injury is inconsistent with the type and degree of impairment evidenced in the current evaluation. Exclusive reliance on her self-report can lead others to over-estimate her true functional capacity, especially since her verbal skills are intact. Social/behavioural excesses are common with this type of brain injury. She demonstrates insight into her aggressive behaviour only after the fact, and even then, is likely to employ defenses including rationalization and projection of blame that allow her to justify her behaviour and/or minimize her role in how events have unfolded. Her impaired memory and tendency to confabulate when recalling details and events only compounds her difficulties related to poor insight.”

34Moreover, Dr. F. stated that no further spontaneous recovery can be anticipated, and future gains are contingent on the appellant’s ability and willingness to learn and apply strategies to compensate for her deficits.

35The appellant testified that: she did not do anything to lose her licence; has done nothing against the law; is being treated like a criminal; is being psychologically bullied; and her major issue is getting people to take her seriously.

36However, the appellant has recently done something against the law. Her certified driver’s licence, submitted as evidence, indicates that she was charged with an HTA offence on February 17, 2019 for driving while her licence was suspended.

37The appellant admits that she suffered a traumatic brain injury (“TBI”) in August 2015.

38However, the appellant is of the opinion that she has nearly completely recovered from her TBI.

39When specifically asked if she has any current cognitive, behavioural, and/or emotional issues, the appellant stated that her cognitive functions are fine, she has no issues with behavioural control, but sometimes has emotional control issues. She went on to further elaborate on her emotional control issues, stating that when she gets upset, she might yell and/or get up and walk around.

40Based on Dr. F.’s comment in paragraph [33] that “exclusive reliance on her self-report can lead others to over-estimate her true functional capacity, especially since her verbal skills are intact”, and the fact that, as per Chapter 20 of the CCMTA Standards, unawareness of impairment (anosognosia) is common in individuals with TBI, I find that the appellant’s view on the current status of her TBI to be less reliable/credible than the opinions of her health care team.

41I find that the appellant’s health care team is better qualified to assess and objectively report on the current status of the appellant’s TBI.

42Furthermore, I accept the opinions of Ms. B., Ms. U., Dr. W., and Dr. F., over that of the appellant, who state that the appellant has significant ongoing impairments from her TBI.

43In addition, I accept the medical evidence that because of her TBI, the appellant has ongoing cognitive, emotional and behavioural issues, and she lacks insight and judgement into her condition.

44Based on the totality of the evidence before me, it is my opinion, as per Dr. F.’s formal neuropsychological evaluation, that the appellant has TBI-related cognitive disorder (moderate, chronic, with diminished insight) and TBI-related adjustment disorder (chronic with mixed disturbance of emotions and conduct).

b. Are the appellant’s TBI-related cognitive disorder and/or her TBI-related adjustment disorder, if any, likely to significantly interfere with her ability to drive a vehicle safely?

45The Registrar has the burden of establishing that the appellant’s TBI-related cognitive disorder and/or her TBI-related adjustment disorder are likely to significantly interfere with her ability to drive a motor vehicle safely. I find that the Registrar has met its burden.

46Although I am not bound by the CCMTA Standards, they provide guidance to TBI’s effect on the functional ability to drive.

47As per 20.1 of the CCMTA Standards, TBI can result in a wide range of impairments. Possible impairments include but are not limited to: sensory (e.g. visual issues); motor (e.g. loss/partial loss of movement, slowed reaction times); cognitive (attention, memory, executive functioning, processing speed, visuo-spatial abilities); behavioural (e.g. disorder affecting mood and impulse control); sleep disturbances; epilepsy; and anosognosia (unawareness of impairment).

48Furthermore 20.5 and 20.6.1 of the CCMTA Standards describe that in some cases, persons with TBI may be able to compensate for loss of functional ability necessary for driving, but this needs to be based on an individual functional assessment by a qualified professional.

49Dr. F.’s evaluation noted that the appellant’s “deficiencies in speeded processing of information predict she would have difficulties managing the level of stimulation and reacting in a timely manner to unexpected, fast-paced events while driving”.

50In addition, Dr. F. wrote that, “It should also be noted that while neurocognitive testing can identify both deficits and preserved capacities in a controlled setting under ideal circumstances, assessment of one’s driving capacity in simulated driving situations and on-road conditions is seen as a more valid and accurate means of determining their ability to safely operate a motor vehicle.”

51Dr. F.’s overall recommendations included: psychiatric consultation plus follow-up with pharmacological support (i.e. medications) in conjunction with behavioural support to manage her impulsivity and explosive behaviour.

52The appellant adamantly disagrees with and is offended by Dr. F.’s overall recommendations. Furthermore, she commented that she “will not take pills”, and eluded to the fact that she had previously been prescribed pharmacological support which she discontinued on her own volition.

53On April 4, 2019, the appellant attended a comprehensive functional driving assessment (“FDA”) at an approved centre.

54The FDA evaluation report indicated that the appellant’s physical function (i.e. mobility in upper and lower extremity, transfers), vision, orientation to test vehicle, pre-driving safety habits, steering wheel operation, and endurance are adequate for driving.

55However, during the on-road assessment the appellant demonstrated impairments in: reaction time (late braking); visual perception (spatial awareness, judgment related to space between vehicles/braking distance); mental flexibility (unsafe lane changes/blind spot check resulting in the driving instructor taking the wheel); and executive functioning (reacting to some situations too late).

56Furthermore, the FDA evaluation report stated that “at this time, A.L. does not meet the criteria for independent driving. Driver training sessions may provide her with an opportunity to improve speed and lane changes, however emotional dysregulation, limited insight, rigid thinking…continue to impede her ability for independent driving. When the results of the assessment were reviewed with A.L. she became upset…”

57The appellant stated that her functional ability/capability to drive is fine. She also stated that after her FDA on April 4, 2019, the examiners told her that everything went fine. Furthermore, the appellant stated that it was only months later that she “found out that she did something wrong” at the FDA.

58Driving is a privilege, not a right.

59I acknowledge that the appellant feels that her driving is fine and that she has no medical condition(s) that may affect her ability to drive safely.

60However, in order to keep the roads safe for everyone, I must consider all the evidence available to me.

61I find from the evidence presented that the appellant has the physical capabilities to operate a motor vehicle.

62I also accept that some of the driving deficiencies noted in the appellant’s recent FDA evaluation may be remediated through extensive driving training/rehabilitation, as was the case in 2016.

63However, based on the evidence before me, it is my opinion on the balance of probabilities, that the current state of the appellant’s emotional/behavioural dysregulation plus her lack of insight/awareness into her condition (anosognosia), put the safety of both herself and others on the road at risk.

64Thus, based on all the evidence before me, it is my opinion that the current state of the appellant’s TBI-related cognitive disorder (moderate, chronic, with diminished insight) and her TBI-related adjustment disorder (chronic with mixed disturbance of emotions and conduct), are likely to significantly interfere with her ability to drive a vehicle safely.

65I acknowledge the burden that the loss of the appellant’s driver’s licence is having on her. While I understand the practical challenges that can result from a driver’s licence suspension, I must apply the provisions of the HTA, keeping in mind the objective of ensuring road safety.

E. ORDER:

66For the reasons set out above, pursuant to subsection 50(2) of the Act, the Registrar’s decision to suspend the appellant’s driver’s licence is confirmed.