Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2020-03-30

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 section 47(1) of the Act to suspend Driving Privileges

Between:

Cecile Callen Appellant

And

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Dimitri Louvish, M.D., Member Stephen Scharbach, Member

Appearances: For the Appellant: Cecile Callen, Self-represented Respondent: Kyle Biel, Agent

Heard by teleconference: March 11, 2020

REASONS FOR DECISION AND ORDER

A. Overview

1The appellant appeals a decision by Registrar of Motor Vehicles to suspend her driver’s licence on the grounds that she suffers from a medical condition likely to significantly interfere with her ability to drive safely.

2The Registrar’s decision to suspend was based on a report of substance use disorder. Although that concern was later resolved, medical information was submitted that indicated that the appellant suffers from mild cognitive impairment and has difficulties with judgement.

3The suspension has therefore continued, and the appellant will not be considered for reinstatement until she completes an assessment of her functional ability to drive.

4The appellant states that she does not suffer from any cognitive or judgement difficulty that interferes with her ability to safely drive. She asks that the Tribunal set aside the Registrar’s decision and that her licence be re-instated.

B. ISSUE

5Does the appellant suffer from a medical condition likely to significantly interfere with her ability drive safely?

C. DECISION

6The Registrar’s decision to suspend is confirmed. The medical information indicates that the appellant suffers from mild cognitive impairment.

D. THE LAW

7The Registrar has the power under s. 47(1) of the Highway Traffic Act (the “Act”) and Ontario Regulation 340/90 (“Regulation”) to suspend or cancel a driver’s licence if the driver suffers from any physical or mental condition likely to significantly interfere with the driver’s ability to operate a motor vehicle safely.

8Any person whose licence is suspended in such circumstances may appeal the suspension to this Tribunal and, following a hearing, the Tribunal may confirm, modify, or set aside the decision of the Registrar.

9In determining whether a driver suffers from a condition that may disqualify him/her for a driver’s licence, the Regulation allows the Registrar to consider the medical standards set out in the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”).

10Those standards have been developed and published in order to establish consistent medical standards for assessing driving eligibility. While they are relevant and may be considered, the CCMTA Standards are not binding on either the Registrar or the Tribunal.

11Section 6.6 of the CCMTA Standards is relevant in this case. That standard deals with eligibility for licencing of people who suffer from cognitive impairment or dementia.

12Section 6.6.3 states that a person who suffers from cognitive impairment or dementia is eligible for licencing if:

medical assessment indicates cognitive functions necessary for driving are not impaired, or,
where required, functional driving assessment shows the condition does not affect the ability to drive.

E. Analysis

(a) Registrar’s Decision to Suspend

13On July 8, 2019 the Registrar informed the appellant her driver’s licence was being suspended because the Ministry of Transportation (“Ministry”) had received a report indicating that she had a condition – substance use disorder - that affected her ability to drive. That was based on a medical condition report submitted to the Ministry by a psychiatrist that indicated that the appellant had, or appeared to have, a diagnosis of uncontrolled substance use disorder involving alcohol.

14The appellant was told that in order to be considered for re-instatement, she would have to arrange for a substance use assessment form to be completed and submitted by her doctor. If a diagnosis of substance use disorder was confirmed she would likely have to remain abstinent for one year.

15The Ministry later received a report by a different psychiatrist - Dr. J. Brasch - who conducted a one-hour assessment of the appellant focused on substance abuse on October 7, 2019. Dr. Brasch concluded that the appellant did not meet the criteria for substance use disorder. However, she expressed concern that the appellant may be suffering from memory impairment and, because of potential impairments in executive and other functions, should be monitored for dementia.

16The Registrar reviewed that report and told the appellant her licence would remain suspended. For re-instatement to be considered she would need to submit both a substance use assessment form and a mental health assessment form completed by a physician.

17The forms were completed by Dr. Brasch on November 29, 2019 and submitted to the Registrar. The substance use assessment form, together with Dr. Brasch’s earlier report, satisfied the Registrar that the appellant did not suffer from substance use disorder.

18However, Dr. Brasch stated in the mental health assessment form that the appellant has mild cognitive impairment or mild dementia, difficulties with judgement, and required an independent functional assessment to evaluate her ability to drive.

19Those reports were reviewed by the Registrar and, on January 27, 2020, the appellant was informed that her licence would remain suspended. For re-instatement to be considered, the Registrar required confirmation from a health care professional that the appellant’s judgement has improved, and once that confirmation is received, the appellant will be required to complete and submit an assessment to determine her functional ability to drive safely.

20On March 6, 2020 the appellant’s family physician reported that the appellant’s judgement had improved. The Registrar’s agent informed the Tribunal that the physician’s report satisfied the first condition above but for reinstatement to be considered the Registrar still requires completion of a functional assessment.

(b) Basis for the Appeal

21The appellant’s position is that she does not currently suffer from any cognitive difficulties that affect her ability to drive safely. She questions the accuracy of Dr. Brasch’s conclusions regarding memory and judgment deficits. She points out that Dr. Brasch is not her treating physician and arrived at her conclusions after conducting only a one-hour consultation.

22The appellant testified that she organises and facilitates a support group for grandparents who do not have access to their grandchildren. She also has operated a tutoring business for the last 20 years although now she is currently taking a break from it.

23In the appellant’s view, this indicates that she has no significant cognitive, memory or judgement difficulties. She asks that the Tribunal set aside the decision of the Registrar to require a functional assessment and allow her licence to be re-instated.

F. DECISION

24Under s. 50(2) of the Act, the Tribunal may confirm, modify or set aside a decision of the Register made under s. 47 of the Act.

25In this case we confirm the Registrar’s decision to suspend the appellant’s driver’s licence based on the following:

Although the Registrar’s initial concern was substance use disorder, Dr. Brasch clearly indicated that she had concerns involving the appellant’s cognition and judgement.
That concern was expressed by Dr. Brasch in a detailed report after a one-hour consultation on October 7, 2019 and again in the mental health assessment completed by her on November 29, 2019.
Dr. Brasch stated in the mental health assessment that the appellant does not have sufficient understanding of her condition and the potential impact on her ability to drive and that the appellant requires an independent functional assessment.
No medical information was presented that contradicts Dr. Brasch’s opinion.
The Registrar’s decision to maintain the suspension until the results of a functional assessment are considered is warranted based on the available medical information and is consistent with the CCMTA standard.

26The Tribunal acknowledges the appellant’s testimony that she has functioned without difficulty in the recent past and the cost of a functional assessment ($500-$800 according to the Registrar’s agent) may be prohibitive.

27However, considering the uncontradicted medical information provided by Dr. Brasch, the Tribunal concludes that a functional assessment is required before reinstatement of the appellant’s driver’s licence can be considered.

ORDER

28Pursuant to s. 50 (2) of the Highway Traffic Act, the decision of the Registrar to suspend the appellant’s driver’s licence is confirmed.

LICENCE APPEAL TRIBUNAL

_________________________

Dimitri Louvish, M.D. Member