Date: 2019-03-27

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:

J.D.

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: J.D., Self-represented

For the Respondent: Stella Velocci, Agent

Heard by Teleconference: February 27, 2019

REASONS FOR DECISION AND ORDER

Overview

1The appellant appeals the March 4, 2018 suspension of her driver’s licence by the Registrar of Motor Vehicles (the “Registrar”). The appellant’s licence was suspended after the Registrar received a medical report from appellant’s geriatrician dated February 16, 2018 diagnosing the appellant with a medical condition, cognitive impairment. 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 has a medical condition that may make it dangerous for the person to drive. The Registrar suspended the appellant’s driver’s licence 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, namely cognitive impairment, which is likely to significantly interfere with her ability to drive a motor vehicle safely. In order to answer that question, we will consider the following:

(a) Does the appellant suffer from a medical condition of cognitive impairment?

(b) Is the appellant’s medical condition, 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, namely 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 (d), (e) and (f) are not applicable to this appeal as they 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).”

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, including 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,

(b) 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

(c) Does the appellant suffer from cognitive impairment?

9As set out below, we find that the appellant has cognitive impairment and that this mental condition is likely to significantly interfere with her ability to drive safely. Based on the appellant’s medical condition, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

10The Registrar filed a medical condition report from the appellant’s geriatrician, Dr. B., part of a hospital geriatric clinic, dated February 16, 2018 in which Dr. B. reported the appellant has dementia or Alzheimer’s and noted that the appellant was unsafe to drive. A cognitive assessment completed by appellant’s family physician Dr. H., dated May 2, 2018 in which Dr. H. reported “mild cognitive impairment or mild dementia” and recommended an independent functional assessment. Dr. H. also noted he had done cognitive screening tests, said the appellant was “…stable with ongoing symptoms” and confirmed medication had been prescribed for the medical condition. In our view the evidence set out in these reports, one from appellant’s family physician and the other from a geriatric specialist, establish that the appellant suffers from a medical condition, namely cognitive impairment.

11The appellant testified that she feels she is able to drive perfectly well and in 57 and a half years of driving has not had any accidents. The appellant denied any cognitive impairment and said she does not like that term. The appellant refused to answer a question from the Tribunal Chair, Dr. Louvish, about what medical conditions she has.

12The appellant filed an eye glass prescription from Dr. S., an optometrist dated March 19, 2018. She also filed a copy of a diagnostic imaging report dated June 26, 2017, which she testified shows she is in good health. Neither of these reports assists in the issue of determining if the appellant has cognitive impairment.

13The appellant also said that she has been driving for 57 and a half years, has never had an accident and is a safe driver. She testified that although her legs are giving up a little she would not drive if she didn’t feel well.

14The appellant did not put forward any medical evidence.

15The appellant did not submit any medical evidence which supported her view that she is does not have cognitive impairment. Accordingly, we find, based on the totality of the evidence, that the appellant has cognitive impairment.

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

16The appellant testified about her desire to drive and the challenges she will face as a result of a possible continued suspension of her licence. The appellant’s position is that she is a safe driver and the suspension of her licence should be set aside.

17The Registrar submits that the appellant’s mental condition is severe enough that she should not be permitted to drive and cannot safely drive. 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

18Based on this standard, the appellant would not be eligible for a licence. None of the appellant’s doctors have given any indication that the appellant’s cognitive functions necessary for driving are not impaired.

19Despite the diagnosis of cognitive impairment, the appellant’s family physician Dr. H., in the report dated May 2, 2018 was supportive of the appellant being given a chance to demonstrate her ability to drive by taking a functional assessment and recommended a functional assessment. The appellant took the functional assessment on September 7, 2018 and failed. The assessor strongly recommended driving cessation and the road test was aborted due to the assessor’s safety concerns.

20The appellant testified that the report from the functional assessment is exaggerated and denies driving over a curb during the road test. She said she would have heard or felt it. The appellant testified that the report from the functional assessment is exaggerated, that the assessor spoke too fast and barely took the time to explain the test to her, didn’t speak clearly and that she had never seen this type of test before. Although this is the appellant’s opinion, it is not supported by any evidence.

21We find based on the totality of the evidence that the appellant’s medical condition is likely to significantly interfere with her ability to drive safely. We find that the appellant does not possess the functional abilities necessary for driving because of her medical condition of cognitive impairment. The functional driving test assessors are better qualified to assess and objectively report on the appellant’s ability to drive than the appellant herself. The report from the functional assessment proves that she cannot safely drive.

22We 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 and inconvenience 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

23For 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.