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 licence pursuant to Section 47(1) of the Act
Between:
John G. Williams
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: D. Louvish M.D., Member K. Livingstone, Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Stephen Grootenboer, Agent
Date of Hearing by Teleconference: September 24, 2021
REASONS FOR DECISION AND ORDER
A. Overview
1The appellant appeals the August 25, 2020 decision of the Registrar of Motor Vehicles (the Registrar) to suspend his licence on medical grounds, pursuant to s. 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 following the receipt of a medical condition report from the appellant’s physician dated July 2, 2020. The report indicated the appellant appeared to have cognitive impairment, a condition that affected his ability to drive safely.
3In a notice dated August 25, 2020, the Registrar informed the appellant that his driver’s licence was being suspended on medical grounds. The appellant was told his licence would remain suspended until the Registrar received and reviewed a favourable “cognitive assessment” report from a physician.
4The applicant submitted a cognitive assessment report on April 20, 2021. After reviewing this report, the Registrar notified the appellant the suspension would remain in place and in order to get reinstated the appellant would be required to submit to a functional driving assessment.
5The functional driving assessment was completed on July 27, 2021. The results of the testing indicated deficits in the appellant’s driving skills. Following the assessment, the Registrar provided the appellant with a restricted temporary diver’s licence which is valid until November 7, 2021 and only for the purpose of receiving lessons at an approved Functional Assessment Centre.
B. Issue:
6The issue in this appeal is whether the appellant suffers from cognitive impairment and if so, whether it is likely to significantly interfere with his ability to safely drive a motor vehicle.
C. Result:
7For reasons that follow, we find the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive safely. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.
D. Law:
8The 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 a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”
9One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is found in ss.14(1)(a) of O. Reg. 340/94 (the “Regulation”) under the HTA which states:
i. An applicant for or a holder of a driver’s licence must not….
(a) suffer from a physical, nervous, mental or emotional condition to an extent likely to significantly interfere with his ability to drive a motor vehicle safely.
10Section 14(2)(a) of the Regulation allows the Minister of Transportation (MTO) 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 it is not bound by them.
11The Registrar has the burden of establishing the ground(s) for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, either confirm, modify or set aside the decision or order of the Registrar.
E. Evidence and Analysis:
i) Does the Appellant Suffer from a Medical Condition?
12The Registrar’s agent filed the documentary history of the appellant’s present medical suspension, including reports from his attending physicians and the results of the functional driving assessment completed on July 27, 2021. The reports formed the basis for the Registrar’s position that the appellant’s licence should remain suspended.
13The documentation included a medical condition report from the appellant’s family doctor in July 2020, where she concluded the appellant suffered cognitive impairment due to dementia. The doctor referred to the appellant’s score of 20/30 on the Montreal Cognitive Assessment Test for Dementia (MoCA) assessment test, which is indicative of mild impairment.
14On April 20, 2021, the same family doctor completed a cognitive assessment. The assessment indicated that no cognitive impairment was noted during the testing completed by a geriatric psychiatrist on December 4, 2020.
15However, the December 10, 2020 notes of the geriatric psychiatrist were attached to the April 20 assessment. The notes read in part:
The patient’s MoCA was repeated on coming into hospital and he was scoring 28/30. It is likely that he was practicing some of the tests; however, his recall was 3/5 which would still be a cause for concern…..The patient was told about the risks involved in driving when his cognitive impairment was documented on earlier occasions and I have explained to him that fluctuations can occur (emphasis added).
16The geriatric psychiatrist concluded the appellant had “minimal cognitive impairment most likely a major neurocognitive disorder of Alzheimer’s type.”
17An August 15, 2021 report from the appellant’s long-time psychiatrist was also part of the documentation. The report was of assistance in terms of the appellant’s mental health historically, as well as concluding that none of his present medications appeared to affect his ability to drive, The doctor advised, however, that cognitive assessments to rule out any underlying dementia were outside of his scope of practice and area of expertise.
18Additionally, the documentation included a functional driving assessment completed by an occupational therapist on July 27, 2021. The report concluded that the appellant exhibited deficits in functional driving skills. Specifically, the report noted, among other things, there were issues with time, attention, impaired hazard awareness, observation, multi-tasking, memory and space judgement. The author of the report noted the appellant “demonstrated decreased insight into his deficits”. The report recommended the appellant’s licence remain suspended and driver training be undertaken to “see if he can learn to compensate for his deficits and also improve his driving skills.”
19The appellant testified during the hearing and disputed the Registrar’s position that he suffered from cognitive impairment. He acknowledged his family doctor made such a diagnosis in July 2020, however he believed the “memory test she gave me she was not qualified to give.”
20The appellant referred to the December 2020 report from the geriatric psychiatrist noting that the testing found no impairment at that time. He said this information was reported to the appellant’s family doctor who told the appellant that she would follow up with the MTO.
21The appellant was concerned his family doctor’s follow up with the MTO did not occur until late April 2021. He was also disturbed by what he perceived to be the doctor’s suggestion in her letter to the MTO that the appellant undertake a driving test before his licence was reinstated. He attributed that suggestion to “malice” on her part due to his “past confrontations on the phone”. He said he had called the doctor “constantly” to “send in the report between December and April”. In fact, a review of the physician’s April 20, 2021 letter to the MTO states “I told Mr. Williams that MTO may require a formal on-road driving assessment. I will leave this up to your professional discretion whether you believe this should be performed on him based on the information that I have provided you.”
22The appellant testified that he has been driving for over 60 years, however, when he took the functional driving assessment it had been more than a year since he had driven. As a result, he said he was anxious and nervous during the test. He said he was in a strange car, the testers were “very picky”, they “mumbled” when they spoke and it “was a very stern experience so I couldn’t get comfortable.” He stated he “drove cautiously and slowly” in some areas and perhaps “stopped” where I shouldn’t have” but he disagreed with many of the conclusions reached by the tester.
23The appellant submitted that the documentation indicated “2 out of 3 people say I don’t have dementia.”
24However, a review of the evidence leads us to conclude the appellant does suffer from cognitive impairment. While his symptoms may have diminished during his testing in December 2020, we agree that the degree of cognitive impairment is subject to fluctuations. It is clear from the observations made by the occupational therapist during the functional driving assessment that the appellant experienced significant difficulty on several levels.
25These more recent observations considered together with the testing and conclusions of his attending physicians some months ago demonstrate a degree of cognitive impairment.
ii) Is the medical condition, cognitive impairment, likely to significantly interfere with his ability to safely drive a motor vehicle?
26The Registrar submitted the appellant’s medical condition is presently severe enough that he should not be allowed to drive until he has undertaken further driving lessons to try and address his deficits.
27The Registrar’s agent argued the appellant presents a safety risk at this time. The Registrar relied on the guidelines contained in the CCMTA Standards with respect to cognitive impairment. Guideline 6.6.1 states that individuals with cognitive impairment are eligible for a licence if:
a) a complete medical assessment indicates cognitive functions necessary for driving are not impaired, or
b) where required, a functional driving assessment shows the condition does not affect the person’s ability to drive.
28Chapter 6.3 of the CCMTA Standards states that cognitive issues often have a direct effect upon fitness to drive and any indications of possible cognitive compromises of fitness to drive must not be neglected by clinicians.
29The appellant disagreed with the results of the functional driving assessment and pointed to his long positive driving record, including driving a motor home through most of the United States as recently as 2019. He also spoke of the difficulties he and his wife are encountering by the loss of his licence.
30However, the history of the appellant’s safe driving record is not at issue in this appeal. It is his present situation that is of concern. While some nervousness is understandable during a functional driving test, the concerns raised in the assessment go well beyond actions resulting from nervousness. The driving assessment clearly showed significant deficits in his driving ability.
31While 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 HTA’s objective of ensuring public road safety.
32Although the Tribunal is not bound by the CCMTA Standards, we adopt its standards and conclude, at the present time, the appellant is not eligible for a licence. We find based on the totality of the evidence that the appellant’s cognitive impairment is a medical condition that is likely to significantly interfere with his ability to drive safely.
F. Order:
33For the reasons set out above, pursuant to subsection 50(2) of the Highway Traffic Act, the Registrar’s decision to suspend the appellant’s driver’s licence is confirmed.
D. Louvish, M.D., Member
K. Livingstone, Member
Released October 27, 2021