Licence Appeal Tribunal
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 pursuant to section 47(1) of the Act to suspend a Driver’s Licence
Between:
V.L. Appellant
-and-
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Adjudicators: Erica Weinberg, M.D., Member; Sandeep Johal, Member
Appearances:
For the Appellant: Self-represented For the Respondent: Sanjay Kapur, Agent
Place and Date of Hearing: Toronto, Ontario October 10, 2018
REASONS FOR DECISION AND ORDER
A. OVERVIEW:
1On May 8, 2007, an emergency room (ER) physician, Dr. L., completed a Medical Condition Report (MCR) about the appellant, citing Dementia/Alzheimer’s. When the MCR was faxed to the Ministry, the respondent decided to suspend the appellant’s driving privilege as of June 27, 2007. By a letter dated June 17, 2007, the Ministry wrote to advise the appellant of the suspension, requesting an up-to-date detailed assessment from a physician familiar with her medical history, a neurologist or a physician specializing in geriatric medicine. In particular, the Ministry requested that the appellant’s cognitive functions be evaluated. Furthermore, the letter stated that once the report had been reviewed and approved by the Ministry, that the appellant may be required to undergo a driving evaluation at a rehabilitation centre.
2The appellant has yet to have an up-to-date detailed cognitive assessment completed and submitted to the Ministry.
3The appellant now appeals the 2007 Ministry decision to suspend her licence. She argues in this appeal that her driver’s licence was stolen, that she was able to pay the fee to renew her driver’s licence on August 13, 2007 at a Driver & Vehicle Licence Issuing Office, that the MCR was not about her, that Dr. L doesn’t exist, and that she does not have the condition of ‘paranoia-early dementia’.
B. RESULT:
4For the reasons that follow, we find the appellant suffers from a mental and/or cognitive condition 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.
C. ISSUES:
5The issue in this appeal is whether the appellant suffers from a mental or physical condition or disability likely to significantly interfere with her ability to drive a motor vehicle safely.
D. LAW:
6The respondent has the burden of establishing the grounds for suspending the licence on a balance of probabilities.
7The respondent has the power under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) to suspend a driver’s licence for a sufficient reason. Subsection 14(1) of O. Reg. 340/94 (the Regulation) of the HTA states that a holder of a driver’s licence must not 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 respondent 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.
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.
10Section 6.6.1 of the CCMTA Standards applies to cognitive impairment or dementia. The recommended standard for lifting a licence suspension includes the following:
a. Complete medical assessment indicates cognitive functions necessary for driving are not impaired, or
b. Where required, functional driving assessment shows condition does not affect ability to drive
c. Conditions for maintaining a licence are met.
11The Tribunal may take the CCMTA Standards into consideration, although it is not binding on it.
E. EVIDENCE:
12The respondent reviewed the May 8, 2007 MCR submitted by Dr. L, who checked off the condition of Dementia/Alzheimer’s and, in the optional section, wrote, ‘seen in ER for first time; paranoid; likely early dementia’.
13The appellant testified initially that she did not go to the ER in May 2007, although she admitted to attending that ER at other times for various ailments. She stated that the name and address on the MCR were hers, but she did not suffer from the condition of dementia/paranoia. Later, the appellant stated that she had received something in the mail with Dr. L.’s name on it. Furthermore, she stated that this document had the same date as, and looked similar to, the MCR form.
14The respondent then proceeded to review the various letters to and from the appellant since 2007, including the initial suspension letter sent from the Ministry dated June 17, 2007.
15The appellant testified that she never received the initial suspension letter from the Ministry.
16The respondent then attempted to review a two-page hand-written faxed letter dated August 2007 which was addressed to the Medical Review Section. The letter was difficult to decipher fully.
17The appellant testified that the letter in question was in her hand writing, but she could not read it to the Tribunal. Even after pointing out the date on the letter (August 2007), the appellant was adamant that she never received anything in 2007 from the Ministry about her driver’s suspension.
18Furthermore, the appellant testified initially that her driver’s licence was stolen in 2004, but later stated that it was stolen after Dr. L. wrote his report.
19As verified by a debit transaction record, the appellant was able to renew her driver’s licence on August 13, 2007, almost two months after her licence was suspended for medical reasons.
20On June 29, 2011 the appellant sent a fax to the Medical Review Section requesting a copy of Dr. L.’s MCR. A response letter to the appellant dated July 4, 2011 indicated that the MCR form could not be disclosed.
21On September 15, 2011 the Ministry received another fax from the appellant requesting that her driver’s licence be sent to her by mail ASAP. In this correspondence the appellant cited that Dr. L. does not exist, as she could not locate his name, address, and phone number.
22Once again, by letter dated October 8, 2011 to the appellant, the Ministry requested an up-to-date assessment from a specialist or treating physician which must reference the appellant’s cognitive function. The appellant did not contact the Ministry again until February 2014.
23In response to a February 19, 2014 correspondence from the appellant stating that her driver’s licence had been stolen and that she had paid for a renewal which never arrived, the Ministry requested that a Cognitive Assessment (CA) form be completed by the appellant’s treating physician, specialist or nurse practitioner.
24When questioned about when she first realized that the Ministry was requesting additional information from her, the appellant testified initially that it was sometime after 2007. Later she stated that it was in 2014.
25Again, on June 8, 2017, the appellant sent a correspondence to the Ministry about her stolen driver’s licence.
26At the hearing, the appellant testified that she had no significant health problems and that she had not seen her ‘old’ general practitioner (GP) in ‘three years or so’. The appellant was unable to state the name of this GP. For the past three years, the appellant stated that she had been using walk-in-clinics (WIC) for her health care. The appellant stated that she does not take any routine medications, uses acetaminophen on occasion, and does not drink alcohol or use any illegal drugs.
27Following the case conference in September 2018, the appellant stated that she attempted to get the CA form completed at a WIC, but was unsuccessful. Following this she attempted to have her ‘old GP’ fill in the CA form. She stated that no reason was given at his office for the refusal, but in her opinion he ‘is afraid of the driver’s licence thieves that live in her building’.
28The appellant does not own a car. She stated that from time to time prior to 2007, she would rent a car for a few days or a week at a time.
F. ANALYSIS:
Does the Appellant Suffer from a Mental or Physical Condition or Disability?
29It is our finding that the appellant suffers from a mental and/or cognitive condition, the exact nature of which cannot be determined. We also find that this mental and/or cognitive condition likely significantly affects her memory, judgment, problem solving, sequencing and insight for the following reasons.
30In May 2007, Dr. L. was concerned enough about the appellant’s cognition and paranoia that he filed a MCR with the Ministry.
31As per the Regulation1, cognitive impairment is a disorder that affects attention, judgment and problem solving, planning and sequencing, memory, insight, reaction time or visuospatial perception and that results in substantial limitation of the person’s ability to perform activities of daily living.
32Although the appellant and respondent both have documented correspondence back and forth between each other dated 2007, 2011, 2014 and 2017, at the hearing the appellant stated that she did not receive anything from the Ministry.
33At the hearing, the appellant’s response to similar questions varied. For example, she initially stated that her driver’s licence was stolen in 2004 and later stated that it was stolen after Dr. L. wrote the MCR (2007). As well, she stated that she first realized that the Ministry was requesting additional information from her in 2007 and later changed the answer to 2014. In our opinion this shows the applicant has issues with her memory and sequencing.
34At times during the hearing and in her written correspondence, the appellant stated that Dr. L. does not exist. The appellant did not direct us to any evidence that Dr. L is not in fact a medical doctor to substantiate her allegation. This could have been done by calling the College of Physicians and Surgeons of Ontario’s office and/or by doing a search on their website, or by calling the hospital at which Dr. L. worked in order to confirm if he does in fact exist and works there. In our opinion this also shows the appellant’s judgment and problem solving skills may be lacking.
35The appellant admitted that the August 2007 correspondence to the Ministry was in her hand writing. Although very difficult to decipher, the Tribunal can clearly see the words and/or phrases in her letter: ‘I received letters from MTO about suspension … driver’s licence’ and ‘I have not receive any … any disability except diet’. Despite acknowledging it was her hand writing the appellant was still adamant at the hearing that she did not receive the initial correspondence from the Ministry regarding her licence suspension. In our opinion, this is indicative of issues with the appellant’s memory, judgment and insight.
36We find the appellant to be credible when she testified that she was able to pay for and was able to renew her driver’s licence on August 13, 2007 despite her driver’s licence being suspended for medical reasons at that time. It is also apparent, that the Ministry did not issue the appellant a new driver’s licence at this time even though she made a payment because of her suspension. However, despite the submissions and evidence at the hearing, the appellant still appears convinced that the physical copy of her ‘renewed’ driver’s licence was stolen and that her ‘old GP’ would not fill out the CA form because he ‘is afraid of the driver’s licence thieves that live in her building’. In our opinion this further demonstrates issues with the appellant’s judgment, problem solving and insight.
37Based on the fact that Dr. L submitted a report to the Ministry, the fact that she went to her family doctor on multiple occasions between 2007 and 2014 and the doctor would not sign off on a comprehensive cognitive assessment of the appellant, plus our inferences based on her conduct and memory issues at the hearing, we find that the appellant has a mental and/or cognitive condition that affects her memory, judgment, problem solving, sequencing and insight.
Is the Appellant’s Mental and/or Cognitive Condition Likely to Significantly Interfere with her Ability to Drive Safely?
38As per 6.3 of the CCMTA Standards, ‘cognitive problems often have a direct effect upon fitness to drive … Furthermore … a clinician with doubts about a patient’s cognitive functioning and its effects upon driving should refer the patient for a functional driving assessment by an occupational therapist or directly to the licensing authority’.
396.4 of the CCMTA Standards (cognitive impairment) states that ‘judgment and insight are important for driving’, and Chapter 14 of the CCMTA Standards (psychiatric disorders) refers to a driver’s level of insight being a critical consideration when assessing the risk of episodic impairment of functional ability due to a psychiatric disorder.
40It is our finding that the appellant’s cognitive condition is likely to significantly interfere in her ability to drive safely because her sequencing is affected as she often mixes up the dates of events and the dates of the correspondence to her, and her problem solving is affected as she was unable to take steps to verify the identity of a doctor and whether that doctor in fact exists. She has a lack of insight because of her belief that there are “driver’s licence thieves that live in her building” and because of her belief that her doctor would not sign off on a clear comprehensive cognitive assessment for the same reason.
41In our opinion, safe driving is dependent on multiple cognitive and functional skills. Cognitive conditions can affect driving skills such as sequencing, visuo-spatial and visuoperceptual skills, attention, concentration, reaction times and memory.
42To drive safely, adequate sequencing is required to start, control and stop the car. Problem solving is required to respond to unexpected changes on the road, such as road closures or diversions and memory is required in order to plan and remember routes.
43Despite the passage of 11 years, the appellant has not complied with Ministry’s numerous requests to obtain a completed comprehensive cognitive assessment from any health care provider. Thus, she has not provided, as per s. 14(2)(b) of the Regulation, evidence satisfactory to the Ministry or to the Tribunal that she can drive a vehicle safely.
G. ORDER:
44For 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
Erica Weinberg, M.D., Member
Sandeep Johal, Member
Released: January 25, 2019