Appeal under Section 50(1) of the Highway Traffic Act, RSO 1990, c H.8 from a Decision of the Registrar of Motor Vehicles to suspend a licence pursuant to Section 47(1) of that Act.
B E T W E E N:
Jean-Paul Huzel
Appellant
-and-
Registrar of Motor Vehicles
Respondent
DECISION
Decision made by:
Matthew Létourneau, Member and Dr. Katie Awad, Member
May 5, 2020
OVERVIEW
1The appellant made an appeal under subsection 50(1) of the Highway Traffic Act, RSO 1990, c H.8 (“the Act”) from a decision of the Registrar of Motor Vehicles (“the Registrar”) to suspend his G-class licence pursuant to subsection 47(1) of that Act. The respondent suspended the appellant’s driver’s licence as of November 6, 2019 for medical reasons.
2The parties appeared at a hearing by teleconference before the Licence Appeal Tribunal (the “Tribunal”) on February 5, 2020. The appellant attended with his wife and the Registrar’s representative was also present.
3This decision provides the Tribunal’s reasons in deciding to revoke the Registrar’s suspension of the appellant’s driver’s licence as the medical evidence is insufficient for the suspension.
LEGISLATIVE SUSPENSION
4The Registrar decided to suspend the appellant’s G-Class licence due to a mental condition or disability - a moderate cognitive impairment in the appellant’s case - that would likely interfere with his ability to drive a motor vehicle. The authority to do so is found at section 47(1) of the Act which states that the Registrar may, by order, suspend or cancel (…)
b) a driver’s licence on the grounds of (…)
(g) any other sufficient reason not referred to in clause (d), (e) or (f).
5Such “other sufficient reasons” in this matter are found under O/REG 340/94 adopted pursuant to the Act, at subsection 14(1) where it states that “an applicant for 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; (…)
- 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 application class safely, including (i)any reports of examinations under section 15, and (ii) any additional medical information.”
6The Canadian Council of Motor Transport Administrators (Conseil canadien des administrateurs en transport motorisé) (“CCMTA”) is cited as a relevant medical standard in the legislation, as noted in the preceding paragraph. Part 2 of the CCMTA’s Determining Driver Fitness in Canada of March 2017 consists of the CCMTA Medical Standards for Drivers that is specifically referenced.
7The Registrar points to article 6.6 “Guidelines for assessment” and article 6.6.1 “Cognitive impairment or dementia” of the CCMTA Medical Standards for Drivers for the relevant guidelines. These guidelines state at article 6.6.1 that a driver is “eligible for any class 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”. The “Information from health care providers” to assess cognitive impairment is suggested here to include “Nature or cause of the cognitive impairment; Opinion of treating physician whether the cognitive impairment is progressive; various tools such as OT driving assessments, cognitive screens and road tests may be helpful in assessing whether an individual with cognitive impairment is eligible to hold licence.
8The appellant has appealed to this Tribunal under section 50(1) of the Act.
ISSUE IN DISPUTE
9The issue in dispute is whether the appellant’s driver’s licence should remain suspended due to a cognitive impairment that is likely to significantly interfere with the appellant’s ability to drive a motor vehicle.
10The appellant submitted that the licence should not be suspended as the medical evidence relied upon by the Registrar contained errors due to a language barrier in the initial assessment, or the evidence did not show an inability to drive a motor vehicle. Also, the appellant provided additional medical information and testimony that he believes shows an ability to drive a motor vehicle safely.
11The registrar maintained that there was sufficient evidence to show signs of dementia or cognitive impairment that would interfere with the ability to safely drive a motor vehicle. The registrar submits that it requires the appellant to provide evidence that his cognitive functions are such that he has the ability to safely operate a motor vehicle. Satisfactory evidence was suggested to be a functional driver’s test or additional medical information.
12The Tribunal will consider the evidence in determining whether there is a medical condition that would affect the appellant’s ability to safely operate a motor vehicle in conjunction with the applicable framework.
PROCEEDINGS
13The Tribunal heard testimony from the Appellant, his wife and the Registrar’s representative. The Tribunal reviewed all the documents provided, including medical evidence, decision to suspend and CCMTA Medical Standards for Drivers as it related to the medical reasons for suspension of the licence.
14A bilingual panel of the Tribunal heard the appellant in French and had a French interpreter present to translate between the parties where required.
INSUFFICIENT MEDICAL REASONS TO SUSPEND
15The appellant underwent two (2) geriatric assessments that led the Ministry of Transportation to suspend his driver’s licence. The first report is dated October 10, 2019 and thesecond dated December 4, 2019.
16The Tribunal’s review of the medical reasons leads to the conclusion that the suspension of the driver’s licence must be lifted. The Tribunal finds that the first medical report contains errors due to the important language barrier that occurred and cannot be relied upon to demonstrate a cognitive impairment. Even if cognitive issues were identified, thesecond medical report shows that the medical condition of the appellant, placed in context of his daily activities, does not interfere with his ability to drive a motor vehicle safely. The latter forms a complete medical assessment that indicates cognitive functions necessary for driving are not impaired. A review of the evidence supports this finding.
Report of October 10, 2019 of Dr. Gagnon
17The appellant affirmed the appellant attended regularly at his family doctor over the years and was following up from a stroke he endured 4 years ago. His family doctor referred him to a geriatrician.
18The appellant attended a geriatric examination on October 10, 2019 with Dr. Gagnon in Hamilton. The appellant went to the clinic with his wife, who speaks English and French, but during the consultation, he was alone with the doctor. Dr. Gagnon speaks only English and the appellant speaks only French. The appellant affirmed that linguistic challenges affected his ability to communicate during the consultation.
19Dr. Gagnon produced a Medical Condition Report dated October 10, 2019 and sent it to the Ministry of Transportation in compliance with the Act. At point 7 of the report, under “Discretionary report of medical condition, functional impairment or visual impairment”, Dr. Gagnon invoked her discretion to report that the appellant had a “medical condition, functional impairment or visual impairment that may make it dangerous for the person to operate a motor vehicle”. Handwritten notes by Dr. Gagnon state: “High School Principal”; “MMSE 23/30, MCA 21/30, Poor Trails 15” and “Not to drive unless goes for ON Road test that was offered”.
20The appellant pointed out during the hearing that he does not believe these notes are an accurate representation of his consultation. For example, his employment of “High School Principal” was incorrect. He was an “Elementary School Principal” and recalls telling the Doctor this point. He states this is indicative of the language barrier.
21The Tribunal finds that there was a significant language barrier between the appellant and Dr. Gagnon, which calls in to question the accuracy of Dr. Gagnon’s conclusions listed in the medical report.
22In any event, the Tribunal finds that the second medical report establishes that the appellant received a prescription for Donepezil from Dr. Gagnon, a medication commonly treating confusion linked to dementia. The appellant testified that he has taken the medication once a day since the time of his assessment, although, in his own self-assessment, he does not see any improvement or changes in his cognition. His wife agreed she does not observe any difference.
Ministry of Transportation Decision to Suspend – November 6, 2019
23Further to Dr. Gagnon’s report, the appellant received a Decision letter on November 6, 2019 by the Ministry of Transportation to suspend his licence under subsection 47(1) of the Act due to a “cognitive impairment”.
24The respondent’s decision instructed the appellant to take the letter to his treating physician and to send proof of confirmation of a significant improvement in cognitive functions in the Medical Review Section.
25In support of its position the respondent referenced the CCMTA guide, chapter 6, regarding Dementia, specifically, the Standard 6.6.1 “Cognitive Impairment or Dementia”. As noted above, this standard states that a person is eligible for any class of licence when: i) a complete medical assessment indicates that necessary cognitive functions are not impaired; ii) where required, a functional driving assessment shows the condition does not affect ability to drive; and, iii) conditions for maintaining a licence are met.
26The Tribunal finds that this standard was met with the December 4, 2019 report of Dr. Peat.
Cognitive Assessment dated December 4, 2019 of Dr. Peat
27The appellant sought a second opinion following Dr. Gagnon’s evaluation. He obtained a referral from his family doctor, Dr. Legros-Terria. Dr. Peat, a geriatrician, was referred to him and he attended an evaluation which was facilitated with a French translator.
28The assessment took place on December 4, 2019, after the appellant returned from Florida where he wintered with his wife.
29Dr. Peat conducted the MMSA, MOCA, Trails B and Clock Drawing tests. She checked the box of “Mild Cognitive Impairment or mild dementia” and followed this up with handwritten notes stating it was unclear if the tests were lower in the first report due to the examination being in English, not French, whether it was due to the Donepezil or whether there was undiagnosed ADHD. In any event, the Tribunal finds that that Dr. Peat did not score the appellant at a moderate cognitive impairment as she did not conclude that he suffered from dementia or a cognitive impairment that would impair his ability to drive.
30Dr. Peat found that the “mild cognitive impairment” could be explained by natural aging and did not impair functioning. She found that he adhered to the medication regime he was prescribed. This was also the appellant’s testimony at the hearing and the Tribunal finds he adheres to his medication regime. Dr. Peat also had the benefit of assessing the appellant’s memory and executive functioning during a previous visit in January 2019, as well as Dr. Gagnon’s report of October.
31The respondent reviewed this information from Dr. Peat and responded in a letter dated December 19, 2019 to the appellant. The respondent stated that “to determine whether you can safely operate a vehicle, we require a satisfactory driving evaluation from a rehabilitation centre”.
32The appellant did not agree with this result and brought the present appeal.
Analysis
33The Tribunal finds that the appellant does not require a road test to reinstate his licence and that the suspension is revoked. The evidence heard by the Tribunal does not show that that the appellant suffers from a mental condition or impairment that would likely significantly interfere with his ability to drive a motor vehicle of the applicable class safely.
34The Tribunal finds that the appellant has mild cognitive impairment that is akin to natural aging and that does not impair his ability to operate a motor vehicle safely.
35Unfortunately, the Tribunal finds that this language barrier was significant in the first evaluation of Dr. Gagnon and is a factor in the differences found between the first and second evaluations. The Board therefore must place greater weight on the second evaluation of Dr. Peat, given that measures were taken to eliminate the linguistic barriers.
36While the Tribunal places little weight on Dr. Gagnon’s report, the fact of the prescribed medication by Dr. Gagnon is indeed a precaution that helps mitigate any concern of cognition impairing the appellant’s ability to drive. In any event, the improvements noted in the 2nd report show a level of cognition that is safe.
37A follow-up doctor’s appointment is scheduled for some time in May 2020 and the Tribunal is confident that continuing evaluations will be able to control for any reductions in cognition levels.
38The Tribunal heard evidence that the appellant was independent in Canada and in Florida, that he travelled, drove and continued all aspects of daily living. The evidence that he was driving and was engaged in automous activities like self-care is evidence that he does not have a cognitive impairment that would require a suspension of his licence. His evidence of travelling to Florida and remaining autonomous in his functioning and driving himself around confirms to the Tribunal that the second report can be considered a complete medical assessment that indicates that his cognitive function necessary for driving is not impaired, as required for eligibility in the CCMTA Medical Standards for Drivers.
39Based on the evidence heard at the hearing today and the report of Dr. Peat, the Tribunal finds that the appellant does not have a moderate cognitive impairment that will significantly interfere with his ability to drive safely. A suspension of the appellant’s driver’s licence is not warranted and should be revoked.
Decision and Order
40The suspension of the appellant’s driver’s licence is revoked.
LICENCE APPEAL TRIBUNAL
Matthew M. Létourneau
Adjudicator
Dr. Katie Awad
Adjudicator
Released: May 5, 2020