Licence Appeal Tribunal
Tribunal File Number: 12290/MED
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
Ruth Fach
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dimitri Louvish, M.D., Member Asad Moten, Member
Appearances:
For the Appellant: Ruth Fach, Self-represented
For the Respondent: Stella Velocci, Agent
Heard by teleconference: October 31, 2019
REASONS FOR DECISION AND ORDER
A. Overview:
1The appellant appeals the August 31, 2019 suspension of her 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”), every prescribed person shall report to the Registrar any person 16 years of age or older who has or appears to have a prescribed medical condition, functional impairment or visual impairment that may make it dangerous for the person to drive. After receiving an unsolicited Medical Condition Report from the appellant’s physician, the Registrar suspended the appellant’s driver’s licence under s. 47(1) of the HTA due to appellant’s diagnosis of cognitive impairment.
2The appellant argues that she does not have any cognitive impairment, and that her driving has never been an issue. The Registrar argues that there is insufficient medical evidence to conclude that she does not have a medical condition that might affect her ability to drive safely.
B. ISSUE:
3The issue in this appeal is whether the appellant has a medical condition, specifically cognitive impairment, likely to significantly interfere with her 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 her ability to drive safely?
C. CONCLUSION:
4For the reasons that follow, we find that the appellant suffers from a medical condition, specifically 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.
D. LAW:
5The 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).”
6One 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;
7Section 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.
8Under 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.
9The 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.
E. EVIDENCE AND ANALYSIS:
(a) Does the appellant suffer from cognitive impairment?
10We find that the appellant has cognitive impairment based on the medical evidence filed by the Registrar.
11The appellant’s family physician sent in an unsolicited Medical Condition Report to the Registrar on August 16, 2019. The report indicates that, in the physician’s opinion, the appellant appears to have a disorder resulting in cognitive impairment. Specifically, the physician states that the cause is unknown but that the appellant is undergoing a work-up for dementia.
12The Registrar, upon receiving this Report, suspended the appellant’s driver’s licence. The Registrar advised the appellant, via the suspension letter, that the appellant had to take the attached Cognitive Assessment form to her physician, and have it completed and returned to the Ministry.
13As of the hearing, there is no evidence that the Cognitive Assessment form has been completed. The appellant advised that she has undergone a separate functional assessment and driver’s test in July 2019, which she failed. The appellant claimed that her failure was a result of unfamiliar roads and construction on the test route. This may be the case, however, no documentation from that assessment has been provided to the Tribunal or to the Registrar.
14Based on the evidence available, the appellant has not discharged her onus of proving that she does not have a cognitive impairment. The only evidence available at this point is the initial Medical Condition Report from the appellant’s family physician, which as stated above, indicates a cognitive impairment as well as the appellant’s testimony that she failed the driver’s functional assessment evaluation. Accordingly, we find that the appellant has cognitive impairment that may affect her ability to drive safely and that she must pass the driver’s functional assessment evaluation before her driver’s licence can be reinstated.
(b) Is the appellant’s medical condition likely to significantly interfere with her ability to drive safely?
15The appellant is of the position that she has never had a problem driving, and that she took a driver’s test as recently as July 2019. While she did not pass the test, she did not feel as though she had any problems during the test. The appellant has been, according to her, an excellent driver for over 50 years. The Tribunal has no doubt that this is the case, and there is no evidence to contradict the appellant’s testimony. The fact remains, however, that things change with time. Where the appellant may have been an excellent driver in the past, the Tribunal does not have recent evidence before it that would establish that the appellant remains a safe driver despite her diagnosis of cognitive impairment, in particular given that she failed a driver’s functional assessment evaluation.
16The 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
17In this case, the Tribunal only has evidence to indicate that a cognitive impairment of some degree exists. It is not clear on the evidence how extensive the issue is, or how the impairment affects the appellant’s safe driving. On the other hand, the appellant has not presented any evidence to support her assertion that any cognitive impairment she does have does not interfere with her driving ability.
18Based on the evidence before us, the Tribunal cannot conclude that the appellant’s cognitive impairment is not likely to significantly interfere with her ability to drive safely.
19We 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.
F. 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.
Dimitri Louvish, M.D., Member
Asad Ali Moten, Member
Released: January 14, 2020