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:
Beatrice Chrysler
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Dimitri Louvish, M.D., Member Joanne E. Foot, Member
Appearances:
For the Appellant: Natalee Miller, Representative For the Respondent: Kyle Biel, Agent
Heard by teleconference: January 29, 2021
REASONS FOR DECISION AND ORDER
Overview
1The appellant appeals the November 28, 2020 suspension of her driver’s licence by the Registrar of Motor Vehicles (the “Registrar”) pursuant to s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
2The appellant’s driver’s licence was suspended after she performed poorly on the on-road portion of a functional driver’s assessment taken on October 28, 2020.
issue
3The issue in this appeal is whether the appellant has a medical condition, namely cognitive impairment, likely to significantly interfere with her ability to drive a motor vehicle safely. In order to answer this question, we will address the following two questions:
a. Does the appellant suffer from cognitive impairment?
b. If the appellant suffers from cognitive impairment, is the cognitive impairment likely to significantly interfere with her ability to drive safely?
conclusion
4For the reasons set out below, we find that the appellant suffers from cognitive impairment and that this medical condition 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.
LAW
5The Registrar has the power under s. 47(1) of the Act to suspend or cancel a driver’s licence for any of the grounds listed in paragraphs (d), (e), (f) or (g) of that section. Section 47(1)(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 Act is that the driver suffers from a medical condition or disability likely to significantly interfere with his or her ability to drive safely. Subsection 14(1)(a) of O. Reg. 340/94 (the “Regulation”) under the Act 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)(b) of the Regulation allows the Minister of Transportation to require a driver to provide satisfactory evidence that he or she is able to drive safely, including any reports of examinations under s.15. The Tribunal may consider whether a driver has complied with such a request.
8The Registrar has the burden of establishing the grounds for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the decision or order of the Registrar.
evidence and ANALYSIS
Does the appellant suffer from cognitive impairment?
9We find that the appellant suffers from cognitive impairment based on the medical evidence submitted by the Registrar.
10Physicians and other prescribed health care practitioners are, pursuant to section 203 of the Act, required to report any person who is sixteen or older and has or appears to have a prescribed medical condition which may make it dangerous for the person to drive. Cognitive impairment is a prescribed medical condition.
11The appellant has had two Functional Driving Assessments. She passed the first assessment but failed the second approximately one year later.
12The appellant first came to the attention of the Registrar when it received a Medical Condition Report, dated December 4, 2018, issued by Dr. Wonyeal Lee, a memory clinic physician, submitted under s. 203 of the Act. This report indicates that the appellant has cognitive impairment and provides the details that she scored 16/30 on the MOCA1 and exhibited “impaired trails B”. Subsequently, the appellant’s driver’s licence was suspended, and the Registrar requested her to have a Cognitive Assessment form completed by a physician. Dr. Lee completed this form on June 4, 2019, indicating that the appellant suffered from mild cognitive impairment.
13The Registrar then requested that the appellant take a driving evaluation at a rehabilitation centre, which she did on August 1, 2019. The Functional Driving Assessment - Medical form completed by the rehabilitation centre indicated that the appellant’s cognitive skills were “highly affected for driving”. Notwithstanding, the appellant performed well on the on-road portion of the evaluation, the form indicating that the appellant had “Functional Driving Skills – On-road assessment shows no evidence that medical condition impairs the ability to drive.” The overall recommendation was that the appellant continue to be permitted to drive, with monitoring by her physician and a reassessment of her on-road ability in a year’s time. Her driver’s licence was restored in September 2019.
14The appellant went to the same rehabilitation centre for a re-evaluation on October 28, 2020. At that time, only the on-road portion of the Functional Driving Assessment was conducted, in furtherance of the requirement that her ability to drive be re-assessed in a year. Unfortunately, the appellant did not perform well on this test and the resulting report led to the most recent suspension of the appellant’s driver’s licence, which is the subject of this appeal.
15The Medical Condition Report dated December 4, 2018, the Cognitive Assessment form dated June 4, 2019 and the Functional Driving Assessment - Medical form dated August 1, 2019, all indicate that the appellant suffers from cognitive impairment and the appellant has not asserted otherwise. Having received no evidence that casts doubt on these assessments, we find that the appellant suffers from a medical condition, namely, cognitive impairment.
Is the appellant’s medical condition of cognitive impairment likely to significantly affect her ability to drive a motor vehicle safely?
16Based on her most recent on-road driving test, we find on a balance of probabilities that the appellant’s cognitive impairment is likely to significantly affect her ability to drive a motor vehicle safely.
17With respect to the appellant’s driving ability, we heard from two witnesses. Each of the witnesses testified that the appellant is a safe and careful driver and that they are comfortable riding in a vehicle with the appellant at the wheel. One of the witnesses had not been in a car driven by the appellant for about ten or eleven months. The other witness had been driven by the appellant most recently in August 2020, about six months prior to the hearing.
18As noted above, the appellant attended a rehabilitation centre to be reassessed on October 28, 2020. In the Functional Driving Assessment - Medical form completed by the rehabilitation centre, the evaluator indicated that the appellant had poor awareness of the driving environment resulting in the need for intervention, that she had made a high risk error and several low risk errors, and that her medical condition was impacting her driving skills. Finally, the evaluator noted that the appellant had deficits in her driving skills such that driving was not recommended.
19In particular, the evaluator noted that the appellant made a left-hand turn into an on-coming lane of traffic, necessitating physical intervention by the evaluator. The evaluator also noted rolling stops, stopping over the line and driving somewhat too slowly. The appellant testified that she was shaken after the evaluator grabbed the steering wheel of the vehicle and was not comfortable driving the rehabilitation centre vehicle in which she was required to take the test.
20On balance, we prefer the evidence of the evaluator over that of the two witnesses, given that it is more recent and that the evaluator is skilled in this type of evaluation. The results of the October 28, 2020 driving evaluation establish that the appellant’s medical condition is significantly affecting her ability to drive safely.
21The Registrar has the burden of establishing, on a balance of probabilities, that the appellant’s medical condition is likely to significantly interfere with her ability to drive safely. That is, the Registrar must establish a link between the appellant’s medical condition and her ability to drive safely. In this case, the functional driving evaluation provides such a link.
ORDER
22For the reasons set out above, pursuant to subsection 50(2) of the Act, the Registrar’s decision to suspend the appellant’s driver’s licence is confirmed.
LICENCE APPEAL TRIBUNAL
Dimitri Louvish, M.D., Member
Joanne E. Foot, Member
Released: February 16, 2021