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 that Act – to suspend a licence.
Between:
Dr. Peter Syrtash
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
PANEL: Dr. Peter Savage, Member
APPEARANCES:
For the Appellant: Peter Syrtash, Self-represented M. Syrtash, Appellant’s Wife and Support Person
For the Respondent: Kyle Biel, Agent
Heard by Teleconference: January 12, 2021
REASONS FOR DECISION AND ORDER
A. OVERVIEW
1This is an appeal from a decision of the respondent, the Registrar of Motor Vehicles (the “Registrar”), to suspend the appellant’s class G drivers licence because the appellant suffers from cognitive impairment. The appellant was notified of the suspension by a letter from the Registrar dated August 1, 2019.
B. ISSUE
2The legal issue to be determined is whether the appellant suffers from a medical condition, specifically, cognitive impairment disorder, which is likely to significantly interfere with his ability to drive safely.
C. CONCLUSION
3For the reasons that follow, I find that the appellant does suffer from the medical condition of cognitive impairment, and I find that this medical condition is likely to significantly interfere with his ability to safely drive a motor vehicle. The Tribunal confirms the decision by the Registrar to suspend the appellant’s class G driver’s licence.
D. LAW
4The Registrar has the authority under s.47(1)(g) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), to suspend or cancel a driver’s licence “for any…sufficient reason”.
5Subsection 14(1)(a) of O. Reg. 340/94 enacted under the HTA requires that a holder of a driver’s licence must not suffer from “any…physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely.”
6Section 14(2)(a) of O. Reg. 340/94 allows the Registrar to consider the CCMTA Medical Standards for Drivers when determining whether the requirements of s. 14(1) are met. The CCMTA standards are not binding on the Minister of Transportation or on this Tribunal but may be persuasive.
7The Registrar has the burden of establishing on a balance of probabilities that one or more grounds for suspending a driver’s licence has been made out.
8Pursuant to section 50(2) of the HTA, after a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar.
E. Preliminary matters
The Registrar and appellant agree that Mrs. Syrtash will be both a support person and a witness and will be affirmed at the same time as Dr. Syrtash.
F. Parties’ submissions
From the Registrar
9Mr. Kyle Biel, the Registrar’s agent, submitted a number of documents which I received in evidence as well as copies of the relevant legislation. Mr. Biel then reviewed those documents beginning with those sections of the HTA that the Ministry relied upon to suspend the appellant’s class G licence
10The documents show that the Registrar received an unsolicited medical report dated July 29, 2019 from Dr. Corey Bricks, the appellant’s family doctor. This report stated that the appellant has a mild to moderate cognitive function disorder. Dr. Bricks indicated that this condition has caused the appellant significant deficits in working memory and executive thought process and difficulty with divided attention, solving problems and considering consequences. Dr. Bricks went on to suggest a functional driving assessment in order to observe the effects the cognitive functional deficit may have on the appellants driving ability and safety.
11The Registrar sent a letter to the appellant on August 1, 2019, informing the appellant that his licence was suspended. The letter noted that the reason for suspension was cognitive impairment. The letter outlined the steps needed to be taken to allow possible reinstatement of the licence.
12The Registrar included a cognitive impairment questionnaire with this August 1, 2019 letter.
13On August 23, 2019 the appellant sent the Registrar a completed cognitive impairment questionnaire completed by his family doctor, Dr. Bricks. Dr. Bricks confirmed the diagnosis of cognitive impairment.
14Dr. Bricks had already recommended a functional driving assessment.
15The functional driving assessment was carried out on November 4, 2019. The written tests confirmed that the appellant had a cognitive deficit, and the driving portion of the test resulted in a statement from the occupational therapist and the driving instructor that the appellant was unsafe to drive. In addition, in the opinion of the occupational therapist, any further functional driving test would be contraindicated.
16As a result, the appellant’s licence remained suspended after the functional driving assessment on November 4, 2019.
17On November 28, 2019, the Registrar received a letter from a Psychiatrist, Dr. Frank Sommers. Dr. Sommers stated that he felt the appellant had no cognitive deficit and that the appellant was a safe driver based on his driving experience with the appellant. He further stated that he was expressing his professional medical opinion.
18The Registrar followed up on Dr. Sommers letter with a request for a further cognitive assessment.
19On September 4, 2020, the Registrar received an occupational therapist’s updated assessment, which indicated further cognitive decline for the appellant.
20On October 5, 2020, the Registrar received a note from the psychiatrist Dr. Frank Sommers altering his position on the appellant’s condition. He noted that he had not examined the appellant and was not offering a professional medical opinion.
21On October 22, 2020, the Registrar received an updated cognitive assessment questionnaire from Dr. Bricks. This assessment confirmed that there had been no improvement and the appellant indeed had some deterioration in cognitive function.
22The Register responded to this form by indicating that the licence remained under suspension.
23The Registrar reviewed the appellant’s driving record and noted that the record was perfect except for the suspension for medical reasons.
24The Registrar pointed out that the CCMTA was comprised of road safety experts from across Canada. The CCMTA made recommendations regarding the effect of medical conditions on the ability to drive a motor vehicle safely. The Registrar noted that the recommendations of the CCMTA were recommendations and not the law.
25The Registrar pointed out the danger that cognitive impairment could present while driving. The CCMTA guidelines also outline the dangers of cognitive impairment. The Registrar drew our attention to section 6.6.1. of the CCMTA guidelines - a general recommendation pertaining to cognitive impairment. This section recommended a functional driving assessment be undertaken when a health care professional indicates that there has been significant improvement in cognitive function.
From the Appellant
26The appellant testified that he was a safe driver and had a good driving record.
27The appellant’s wife testified that her husband did not understand why his licence had been taken away and could not understand the opinion of the doctor that he had a cognitive deficit.
28The appellant testified that while he did not like to have his wife driving all the time, he had accepted it and he was complying with the suspension. His wife confirmed this.
29The appellant testified that Dr. Sommers was a personal friend and had never examined or treated him.
30The appellant testified that all he wanted was to have another functional driving test and get his licence back. The Registrar stated that this was possible, but it was a two-step process. First if there is improvement in his cognitive deficit and second if the medical doctor documents the improvement, a functional driving test could be organized. If the results were favorable, the license may be restored.
31The appellant’s wife testified that her husband did not fully comprehend his cognitive decline and did not understand why the licence had been suspended, but he had accepted the suspension and was compliant with the suspension.
G. ANALYSIS
32Based on the medical evidence presented, the appellant’s testimony as well as the appellant’s wife’s testimony, and on a balance of probabilities, I find that the appellant does have a medical condition, namely cognitive impairment. As well, I find on a balance of probabilities that this condition is likely to significantly interfere with the appellant’s ability to safely drive a motor vehicle.
33I accept the initial report of Dr. Bricks as well as Dr. Brick’s initial report and two cognitive impairment questionnaires confirming a diagnosis of cognitive impairment with ongoing deterioration. This evidence sets out a diagnosis of cognitive impairment. This diagnosis is further confirmed by the report of the occupational therapist dated October 4, 2020.
34I cannot accept Dr. Sommer’s report as he is speaking as a friend, and as confirmed in his second letter, he has not examined the appellant.
35I accept the report of the functional driving assessment done on November 4, 2019. This report indicates the appellant is not safe to drive.
36While the evidence discloses that the appellant has a safe driving record, I accept the submissions of the Registrar and the analysis in the CCMTA, outlining the dangers associated with cognitive impairment and driving. Furthermore, I accept the recommendation in 6.6.1 of the CCMTA guidelines that a letter supporting improvement of cognitive function and possibly a functional driving assessment are needed to show that the driver’s cognitive impairment does not affect his ability to drive.
ORDER:
37Pursuant to subsection 50(2) of the HTA, I affirm the Registrar’s decision to suspend the appellant’s class G driver’s licence.
LICENCE APPEAL TRIBUNAL
Dr. Peter Savage, Member
Released: January 27, 2021