G.T. v. Registrar of Motor Vehicles, 2019 CanLII 25740

Licence Appeal Tribunal

Date: 2019-01-04

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:

G.T. 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: G.T., Self-represented For the Respondent: Sonia De Santis, Agent

Heard in Ottawa: December 18, 2018

REASONS FOR DECISION AND ORDER

Overview

1The appellant appeals the August 21, 2016 suspension of his 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”), 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. As a result of a functional driving assessment, in class screening concerns regarding the appellant’s cognitive impairment were reported to the Registrar as a result of which the Registrar suspended the appellant’s driver’s licence on August 21, 2016, under s. 47(1) of the HTA, due to the appellant’s cognitive impairment.

ISSUE

2The 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?

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 his 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

(a) Does the appellant suffer from cognitive impairment?

9As 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.

10The respondent provided all the medical reports in the appellant’s file. In a cognitive assessment, dated June 2, 2016, Dr. T., the appellant’s family physician since 2015, diagnosed the appellant with mild cognitive impairment or mild dementia, noted that the appellant does not take all prescribed medications as he “feels fine” and reported that the appellant requires an independent functional assessment. The appellant took a functional driving assessment on July 27, 2016, which he failed. The report from the driving centre noted that the appellant’s “…overall performance outcome is commensurate with driving ability having declined to an unsafe level. Driving can place…(appellant’s)…safety and the safety of others at risk. It is strongly recommended that…(appellant)…not drive.” The road evaluation was discontinued as it was unsafe to continue the test. The appellant sent in a report from his cardiologist and also two vision reports. The appellant’s cardiologist Dr. C., in a report dated July 27, 2016 reported that the appellant has chronic coronary artery disease and atrial fibrillation. Vision reports from Dr. B. dated March 27, 1997 and from A.D. dated April 30, 2018 confirm the appellant has been prescribed spectacles for driving.

11In a cognitive assessment, dated September 9, 2016, from Dr. D., the appellant’s family physician since 2003, the diagnosis is “no impairment”. Dr. D. reports the appellant does not require an independent functional driving assessment but notes the appellant is “…only slow to understand clock drawing.” The appellant took a second functional driving assessment on December 2, 2016, which he failed. Dr. D. provided a note dated June 28, 2017 on a prescription pad that the appellant wished to re-try the drivers licence renewal session. The appellant took a third functional driving assessment on July 12, 2018, which he failed. There were no further reports filed from Dr. D.

12In a cognitive assessment dated September 13, 2018, from Dr. A, appellant’s family physician since 2017 in another municipality, the diagnosis is “no impairment”. Dr. A. reports that the appellant does not require an independent functional driving assessment and reports “seems no risk to drive.” The response from the respondent dated September 24, 2018 is that a satisfactory driving evaluation from a rehabilitation centre would be required to consider re-instating the appellant’s driving licence.

13Respondent’s agent also provided a copy of a 2016 Tribunal decision concerning the appellant made by another member. Although in the 2016 decision the Tribunal concluded based on the medical information available at that time that the appellant’s medical condition was such that his licence should remain suspended, we note that this decision is not binding on us and we will decide the appellant’s appeal based on the evidence and submissions made at this hearing.

14The appellant testified that he feels he is able to safely drive his vehicle because he has good eyes, good legs and good brains. He said that he could not pass the written tests because he has a grade four education, could not read the tests because he did not have his glasses and was taking a water pill that made him go to the bathroom so he missed part of the tests. The appellant testified that the people in the car during the three functional driving assessments tried to confuse him. He did not have a chance to drive his own car and he did not like the car they had him drive. He said they kept failing him because they wanted his money. The appellant also testified that he does not believe he failed the three driving tests, and that the Registrar has made a mistake because he knows how to drive a car and has never lost any points on his licence.

15The appellant’s daughter testified that the appellant’s driving has always been good. He always uses the mirrors and has never had an accident. She said that she does not believe her father has any mental impairment and it does not run in his family. She testified that her father did not understand the tests given to him as part of the functional driving assessments. She looked at these tests and she did not understand them either. From what her father told her she understands that the man giving the test was gruff, had no patience and ended the test early. She said that two of her father’s doctors say he does not have any mental issues. She questioned whether the driving assessment centres are qualified to say her father cannot drive. She suggested that the Tribunal panel should give her father a written test during the hearing to prove his ability to drive. She said he has been practicing the tests at home. Both the appellant and his daughter testified that the appellant took an Extended Mental Status cognitive test on August 14, 2017 at a memory program at a hospital and scored 77 out of 88 points, which shows he is mentally well.

16Based on our analysis of the evidence, we find that the appellant’s family physician Dr. T. and the driving assessors who conducted the three functional driving assessments are better qualified to assess and objectively report on the appellant’s medical condition and ability to drive than the appellant, his daughter, and Dr. D. and Dr. A. who diagnosed the appellant after his licence had been suspended. The appellant brought forward the cognitive assessment of Dr. D., dated September 9, 2016, to support his view that he is able to drive safely. Although Dr. D.’s diagnosis is “no impairment” and notes the appellant is “…only slow to understand clock drawing”, the opinion of Dr. D. is not borne out by the two functional driving assessments, which took place after his diagnosis. Dr. D. provided a note dated June 28, 2017 on a prescription pad that the appellant wished to re-try the drivers licence renewal session. The appellant failed a second functional driving assessment on December 2, 2016. The appellant took a third functional driving assessment on July 12, 2018, which he failed. There were no further reports filed from Dr. D.

17The appellant took an Extended Mental Status cognitive test on August 14, 2017 at a memory program at a hospital. The report from this test shows that he scored 77 out of 88 points. There was no clear medical evidence brought forward by the appellant as to how, if at all, this test could demonstrate he does not have cognitive impairment. Therefore we are unable to give this report any significant weight. Further, the appellant failed the third functional driving assessment after the date of this test, so any improvement in the appellant’s cognitive function that the test might have been able to demonstrate was not borne out by the later functional driving assessment. The appellant also submitted a report from his cardiologist Dr. C. and two vision reports in support of his submission that his health is good enough that he can drive. None of these three reports address the appellant’s cognitive state. Given that the issue in this appeal is the appellant’s alleged cognitive impairment, the cardiologist’s report and the two vision reports are not relevant or helpful to the issues we have to decide in this appeal.

18The most recent cognitive assessment is dated September 13, 2018, from Dr. A, the appellant’s family physician in another municipality. In Dr. A.’s report the diagnosis is “no impairment” and he notes “seems no risk to drive”. There is no indication in Dr. A.’s report that he is aware of the three failed functional driving assessments that predate his diagnosis, Dr. T.’s prior diagnosis, Dr. D.’s support of the appellant taking another functional assessment or that he has conducted any in-depth investigation of the appellant’s ability to drive. Dr. A.’s report from 2018 is not enough to outweigh the results of the three failed functional driving assessments and Dr. T.’s 2016 diagnosis of mild cognitive impairment or mild dementia.

19Accordingly, we find, based on the three failed functional assessments and the diagnosis of Dr. T., that the appellant has cognitive impairment on a balance of probabilities.

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

20The appellant’s position is that he is a safe driver and the suspension of his licence should be set aside.

21The 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

22The appellant would not be eligible for a licence at this time based on this standard. After the appellant had failed three functional driving assessments, none of the appellant’s doctors, except Dr. A., indicate that the appellant has the ability to drive. Dr. A, in the cognitive assessment dated September 13, 2018, reports “seems no risk to drive”. This conclusion is not supported by any objective testing, and there is no indication in Dr. A.’s report that he is aware of the three failed functional driving assessments or that he has conducted any in-depth investigation of the appellant’s ability to drive. Dr. A.’s report is not enough to outweigh the results of the three failed functional driving assessments and Dr. T’s original diagnosis. The reports from the three functional driving assessments conducted by two different driving test centers indicate that the appellant does not have the unimpaired cognitive functions necessary for driving.

23The Registrar’s September 24, 2018 response to Dr. A.’s report was that a satisfactory driving evaluation from a rehabilitation centre would be required. As of the date of the hearing there was no evidence that the appellant had attempted or satisfactorily completed a driving evaluation from a rehabilitation centre. Based on Dr. T.'s diagnosis, and the three failed functional driving assessments during 2016 to 2018, and in the absence of a more recent functional driving assessment, we find that the appellant does not possess the functional abilities necessary for driving. 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 his ability to drive safely.

24We 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

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.