Date: 2019-07-30

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 s. 47(1) of the Act to Suspend a Licence

Between:

S.B.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Dimitri Louvish, M.D., Member Jennifer Friedland, Member

Appearances:

For the Appellant: Self-Represented

For the Respondent: Kyle Biel, Agent

Place and Date of Hearing: By Teleconference, June 27, 2019

OVERVIEW

1The appellant is a 72-year old man whose driver’s licence was suspended on December 3, 2017 pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2The decision to suspend the appellant’s licence was made by the Registrar of Motor Vehicles (the “Registrar”) following the receipt of a medical report indicating that the appellant suffered from a medical condition, namely cognitive impairment, likely to significantly interfere with his ability to drive safely.

3The appellant disagrees with this assessment and appeals his suspension to the Licence Appeal Tribunal (the Tribunal) pursuant to s. 50 (1) of the HTA.

ISSUE

4The issue on this appeal is whether the appellant suffers from a medical condition or disability that is likely to significantly interfere with his ability to drive safely.

Result

5For the reasons given below, we find that the appellant does suffer from a medical condition or disability that is likely to significantly interfere with his ability to drive safely. Therefore, we confirm the Registrar’s decision to have suspended his licence.

6If the appellant wishes to have his licence reinstated, he will have to follow the steps set out by the Registrar, which includes providing a satisfactory driving evaluation from a rehabilitation centre.

THE FACTS

The initial medical report re: cognitive impairment, November 3, 2017

7The appellant’s licence was suspended following a visit with a psychiatrist on November 3, 2017. He was referred to this psychiatrist following the death of his mother, which had caused him intense grief. After the visit, the psychiatrist submitted a medical report to the Ministry of Transportation under s. 203 of the HTA which requires all legally qualified medical practicioners to submit a report to the Registrar if a patient “is suffering from a medical condition that may make it dangerous for the person to operate a motor vehicle.”

8In the appellant’s case, the psychiatrist identified the medical condition being reported as “Dementia or Alzheimer’s.” The psychiatrist also provided the following further information relevant to the issue of road safety:

Patient reports being lost at times when he was driving; however, he reports that he tries to be very careful and only drives in local streets. He reports near missed accidents a few times.

9On November 23, 2017, following receipt of this medical report, the Registrar notified the appellant that his licence would be suspended pursuant to s. 47(1) of the HTA. Enclosed with this notice was a cognitive assessment form and instructions if the appellant wanted to have his licence reinstated. He was advised that the first step would be to have the cognitive assessment form completed and reviewed by the Ministry of Transportation’s medical review team.

10On December 3, 2017, the appellant’s licence was formally suspended.

11On December 15, 2017, he underwent the recommended cognitive assessment with the same psychiatrist who issued the initial report.

The results of his cognitive assessment, Dec 15, 2017

12The relevant details of the appellant’s cognitive assessment completed on December 15, 2017 are as follows:

• His primary condition was identified as “mild cognitive impairment or mild dementia;

• His condition was “expected to deteriorate”,

• His current condition was “stable with on-going symptoms;”

• He was identified as requiring an independent functional assessment; and

• The psychiatrist’s concluding remarks were that the appellant

… was a high functioning individual prior to sustain[ing] traumatic brain injury and continues to struggle w[ith] mood and cognitive changes lately. He needs a formal assessment re: his ability to drive which I cannot provide as a psychiatrist.

13Upon review of this cognitive assessment, the Registrar sent a further notice to the appellant on January 8, 2018 informing him that in order for his licence to be considered for reinstatement, he would have to provide a satisfactory driving evaluation to determine whether he could safely operate a Class G vehicle (i.e. a car).

The results of his formal driving evaluation, February 21, 2018

14The appellant underwent a formal driving evaluation on February 21, 2018. He was issued a temporary licence for this purpose. He did not perform well on this test. The observations and conclusions made by the assessor included the following:

• During the in-clinic assessment, he scored 22/30 on the Montreal Cognitive Assessment (MoCA) which is considered “abnormal;”

• During the driving test, he was described as “unaware of potholes due to talking with the driving instructor (distracted);”

• He “required urging to proceed at traffic lights and stop signs;”

• He demonstrated concerns with visual perceptual skills;

• He demonstrated “several wide right turns and despite driver instructor feedback continued to demonstrate wide right turns”;

• He was observed to “wander in lane, at times over lines on road and into adjacent lanes.”

• He was “observed to wander into left adjacent lane when making right blind spot check – driving instructor had to intervene and grab steering wheel to avoid entering adjacent lane with other cars.”

15The overall conclusion of the assessment was that the appellant showed “deficits in functional driving skills and driving was “not recommended.”

16As a result of this testing, the Ministry advised the appellant by letter dated February 28, 2018, that the suspension of his driver’s licence would continue. The notice indicated that to be considered for reinstatement, he would now need to provide confirmation from his treating physician or specialist that there has been significant improvement in his cognitive function. The letter further stated that once such a report had been approved, he may be required to complete a functional assessment.

The appellant’s improvement – his cognitive assessment, May 22, 2019

17The appellant recently underwent a further cognitive assessment. In this testing, conducted on May 22, 2019 by a geriatric psychiatrist who had seen the appellant three times over the past year, the appellant showed strong improvement in mood and mental functioning (for example, his score on the MoCA had risen to 27/30.)

18The conclusion of this assessment, performed May 22, 2019, was as follows:

In summary, this is a 72-year old gentleman with a previous history of depression which is now fairly well managed. He is completely independent with all ADLs [activities of daily living], and there are no concerns about IADLs [instrumental activities of daily living]. Based on the cognitive testing today, and based on the history proved by the family, I do not see any cause for concern with the patient’s driving.

19Upon receipt of this updated assessment, the Registrar advised the appellant that he must now provide a satisfactory driving evaluation to determine whether he can safely operate a vehicle.

20As of the date of this hearing, the appellant has not undergone the further driving evaluation.

The appellant’s position

21The appellant takes issue with any diagnosis that suggests he has dementia or Alzheimer’s. He believes that the initial psychiatrist who prepared the report and conducted the follow-up assessment may have misunderstood him due to a language barrier. The appellant’s first language is Hindi, and although he speaks and understands English, he believes there might have been miscommunication with this psychiatrist. The appellant’s daughter assisted him at this hearing with translation.

22Despite his position that there may have been a language barrier between he and his first psychiatrist, he also acknowledges that he was severely depressed at the time of this first assessment, as well as when he took the functional driving test.

23With respect to his poor performance on this driving test, the appellant provided various explanations, such as there being cars parked along the side of the road and the assessors talking too loudly in the car. However, he also acknowledged in his testimony that he probably should not have taken this test while he was still feeling “so low”.

24The appellant currently feels that his mental health has greatly improved and he relies on his updated cognitive assessment as proof of this. He describes that one of the factors that had been affecting him so deeply at the time of the first report and assessment was that he had not yet performed the appropriate Hindi rituals for his mother’s death. Since then, however, he was able to perform those rituals. In March 2018, he went to India, alone, and performed the rituals for his mother. He describes feeling much better on his return. He is also taking anti-depressants which have assisted his mood.

25The appellant states that although he still becomes sad when he thinks about his mother, he mainly now carries on just like he used to, taking care of his home, and completing his finances, for example. He states that he drove by himself in India without having any difficulty. He explained that he has been driving for 40 years and has never had an accident that was his fault. He misses driving and finds that not driving interferes with his ability to socialize and run errands, which in turn affects his mood.

26The appellant acknowledged that he had a car accident 12 years ago but denies that this resulted in any brain injury. This is contrary to the information on his cognitive assessment performed in December 2017 which described a previous “traumatic brain injury” but the discrepancy was left unexplained at this hearing. The appellant admits that he was hospitalized for “about a month” following that accident but denies that it even left him with a concussion. He stated that his injuries included whiplash, two broken knees, a broken pelvic bone and a broken femur. When asked specifically about the brain injury, the appellant said, “it’s an old matter” and that he does not recall the details.

27As for why he is appealing the suspension of his licence instead of just taking the further driving examination as requested by the Registrar, the appellant stated that it was “too expensive.” He therefore asks the Tribunal to reinstate his licence based on the improvements shown in his May 22, 2019, assessment; his subjective belief that he can drive safely, and the context surrounding the initial loss of his licence, including his depression at that time over the loss of his mother, and his position that there was a language barrier when he was first assessed.

The Registrar’s position

28The Registrar asks the Tribunal to confirm the suspension of the appellant’s driver’s licence.

29The Registrar submits that to ensure road safety, the appellant would need to provide a satisfactory driving evaluation before the reinstatement of his licence could be considered.

Law & Analysis

30The purpose of the licence provisions of the HTA is to “protect the public.” Section 31 (a) describes that one of the ways this is done is by ensuring that:

31(a) the privilege of driving on a highway is granted to, and retained by, only those persons who demonstrate that they are likely to drive safely.

31Ontario Regulation 340/94 is a regulation made under the HTA that deals specifically with drivers’ licences. At section 14(1)(a) it specifies that:

14.(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 ...

32The provision goes on to state that:

(2) In determining whether an applicant for or a holder of a driver’s licence of any class meets the qualifications described in subsection (1), the Minister,

a) may take into consideration the relevant medical standards for applicants or holders of that class of driver’s licence set out in the CCMTA Medical Standards for Drivers; and

b) may require the applicant or holder to provide evidence satisfactory to the Minister that he or she is able to drive a motor vehicle of the applicable class safely, including,

(i) any reports of examinations under section 15, and

(ii) any additional medical information. O. Reg. 453/10, s. 1.

33One of the examinations that a driver may have to undergo, pursuant to s. 15 (1) (b) of the Regulation, includes:

… a demonstration of the person’s ability to drive safely …

34This is what the appellant has been asked to do: undertake a driving examination, in order to demonstrate that he can now safely drive a motor vehicle. Since he has not yet done so, the Tribunal has no basis to conclude that his driving would not compromise his own, and other people’s safety on the road.

35Although the appellant’s updated cognitive assessment conducted in May 2019 shows a marked improvement in his cognitive functioning and there is no current diagnosis of dementia or Alzheimer’s as initially reported, this recent assessment does not address the impact of his cognitive functioning on his actual driving. Moreover, there is at least some evidence of a previous brain injury, as well as evidence of ongoing depression.

36During his functional driving test in February 2018, the appellant was observed to be “distracted” while driving. He needed prompting at the stop lights, failed to avoid potholes, and on more than one occasion, wandered toward the centre line, almost into opposing traffic. Given the results of this test and his own prior description of having “near missed accidents,” it is evident that he was unable to drive safely at that time, even if it was only because of his depression, as he contends.

CONCLUSION

37In all of the circumstances, and while remaining sensitive to the appellant’s strong desire to resume driving, we are satisfied that he continues to suffer from a medical condition likely to significantly impact his ability to drive safely. Whether this medical condition is a cognitive disorder as initially assessed; a result of a prior brain injury; or, as the appellant asserts, merely depression; his last functional driving test shows that it can impact his ability to drive safely. While he may be correct in thinking that this would no longer be the case, the way for him to prove it is by satisfactorily completing a further driving assessment. Until then, the suspension of his driver’s licence will continue.

ORDER

38Pursuant to the powers of this Tribunal under s. 50(2) of the HTA, the Registrar’s decision to continue the suspension of his driver’s licence is confirmed.