Date: 2021-12-29

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:

Noel Baccus

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: Noel Baccus, Self-represented

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: December 16, 2021

A. Overview:

1Noel Baccus (“the appellant”) appeals the suspension of his Class G driver’s licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), effective May 20, 2021.

2The issue in this appeal is whether the appellant’s reported medical condition of cognitive impairment (“CI”) is likely to significantly interfere with his ability to drive a vehicle safely.

3Having considered all of the evidence and for the reasons that follow, I find that the Registrar of Motor Vehicles (the “Registrar”) has met the burden of establishing on a balance of probabilities, that the appellant’s medical condition of CI is likely to significantly interfere with his ability to drive a vehicle safely.

4Accordingly, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.

B. ISSUES:

5The issue in this appeal is whether the appellant suffers from CI, a medical condition likely to significantly interfere with his ability to drive a vehicle safely.

6To answer this question, I will address the following issues:

a. Does the appellant suffer from CI?

b. Is the appellant’s medical condition, if any, likely to significantly interfere with his ability to drive a vehicle safely?

C. LAW:

7Under the HTA the Registrar of Motor Vehicles (“the Registrar”) is responsible for ensuring that drivers are medically fit to drive vehicles on the highway. In this case, the Registrar acted pursuant to s. 47(1) of the HTA and s. 14(1)(a) of O. Reg. 340/94 under the HTA (the “Regulation”).

8Under s. 14(2)(b) of the Regulation, the Registrar may require a driver to provide satisfactory evidence that he or she is able to drive safely.

9A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.

10On appeal, the Registrar has the burden of establishing that the licence should remain suspended on a balance of probabilities.

11Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

12Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators’ Medical Standards for Drivers [February 2021] (the “CCMTA Standards”) when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

D. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from CI?

13I find, on a balance of probabilities that the appellant suffers from CI.

14On May 7, 2021, the Ministry of Transportation (“the Ministry”) received an unsolicited Medical Condition Report (“MCR”) with an examination date of May 6, 2021, from psychiatrist Dr. Ga. On the MCR, Dr. Ga. indicated that he was of the opinion that the appellant was suffering from CI due to dementia, which may make it dangerous for the appellant to operate a motor vehicle.

15In response to the MCR, by letter dated May 10, 2021, the Registrar suspended the appellant’s driver’s licence, effective May 20, 2021. The letter indicated that when the appellant’s condition improved, he should have his treating physician, specialist or nurse practitioner complete a Cognitive Disorder (“CD”) form.

16Dr. Go., the appellant’s family physician, completed a CD form on July 13, 2021. It indicated that, based on the appellant’s cognitive and functional state that the appellant:

• had a primary condition of mild CI/mild dementia;

• required a functional driving assessment (“FDA”); and

• had not completed a FDA with the last six months.

17In the optional “Comments” section of the CD form, Dr. Go. wrote that the appellant appears to have mild CI, scored 28/30 on both the Mini Mental Status Exam (“MMSE”) and the Montreal Cognitive Assessment (“MoCA”), apparently has no motor vehicle accidents and has a clear driving record with his insurance company. Dr. Go. also wrote, “the only way to assess his driving ability is with a driving test.”

18On the in-class assessment portion of the appellant’s October 18, 2021 FDA, occupational therapist, Ms. G., indicated that the appellant scored below normal limits on:

• MoCA = 24/30

• Trails A = 90 seconds

• Trails B = unable to complete

• MVPT-R = 23/40 (Motor-Free Visual Perception Test)

19I note that on the FDA form, Ms. G. wrote that the appellant: “performed below expected norms on cognitive testing”; had been prescribed donepezil; and “appears to demonstrate decreased insight and awareness into his present status”.

20The appellant testified that he “complained to Dr. Go. a couple of times” that he could not remember the names of people he would see at his tennis club. The appellant stated that Dr. Go. told him: this was normal at the appellant’s age; he would “look into this”; he would refer the appellant to someone about “forgetting names”; and he would prescribe some tablets.

21The appellant stated that he received an unexpected phone call, at home, from psychiatrist, Dr. Ga. in early May 2021. He testified that Dr. Ga. asked him questions, some of which were similar to questions that Dr. Go. subsequently asked him, in person, on July 13, 2021. The appellant stated that on the call, Dr. Ga. indicated that he was of the opinion that the appellant was suffering from CI and that he would be writing to the Ministry.

22On July 13, 2021 (following a brief hospitalization for a fall and a subsequent two-week stay at a rehabilitation centre), the appellant saw Dr. Go., in person, to have the CD form completed.

23The appellant argues that:

• he is medically and physically fit, and is strong and healthy;

• Ms. G., an “office coordinator/office person” at the FDA centre, is not a medical doctor, she is not qualified and therefore her testing should not be relied upon;

• he “totally disagrees” with most things in Ms. G.’s report. He indicated that under “In Clinic Assessment” Ms. G. did not do: report review; client interview, evaluation overview or in clinic skills testing.

• cognitive testing completed by doctors should supersede those of an office person such as Ms. G.;

• Ms. G. was pressed for time/rushed (because the appellant arrived late for his appointment) and during the in-class testing she told him to “speed up”.

• Dr. Ga.’s cognitive assessment was done on the phone and would not be as accurate as Dr. Go.’s assessment which was done in person;

• Dr. Go.’s opinions were “more honest”, in that the appellant may have mild CI but he does not have dementia; and

• Dr. R., a neurologist, assessed him in person in June 2021 for headaches and found nothing wrong. The appellant stated that a follow-up phone call from Dr. R. indicated that “everything was negative/fine”, including the CT scan of his brain.

24According to Dr. R.’s consultation note, dated June 16, 2021 and submitted as evidence, the appellant was referred to Dr. R. by the appellant’s eye doctor. Dr. R. was asked to assess the appellant for headaches. Dr. R.’s note states “he takes 4 tablets in blister pack, names unknown to him, did not bring a list.” The past medical history available to Dr. R. did not include CI and he wrote “functional inquiry is otherwise unremarkable”. Based on my knowledge as a licenced and duly qualified physician in the province of Ontario¹, I find that this means the appellant did not disclose any cognitive concerns to Dr. R. Dr. R.’s examination of the appellant at that appointment was focused on an examination looking for causes, signs, or symptoms of headaches and did not include any validated cognitive tests, nor would I expect it to. Dr. R.’s only comment regarding the appellant’s cognition is, “neurological examination reveals the patient alert and coherent”. Moreover, I am aware that a normal CT brain scan does not rule out that someone is suffering from CI.

25I acknowledge that the appellant’s cognitive scores recorded by Dr. Go. on the July 2021 CD form are within normal limits. However, despite these scores Dr. Go. answered “mild CI” to the Ministry’s question of “On the basis of the patient’s cognitive and functional state what is the patient’s primary condition” and hand wrote that the appellant “appears to have mild CI”.

26I prefer the opinions of Ms. G. and Drs. Ga. and Go. over that of the appellant, that the appellant is suffering from CI. Ms. G. is an occupational therapist who works at a FDA centre. I am aware that Occupational Therapy is a regulated profession in the province of Ontario. Based on this, I find that Ms. G. is qualified to perform cognitive assessment tests and I note that Ms. G. performed more in person validated cognitive tests than did Dr. Go. I am also aware that some of the cognitive tests performed by Ms. G. have “cut-off times”. I am aware that if someone were to take longer on a cognitive test than the cut-off time, then that person’s score would be considered to be below normal limits. Based on this, I find that if Ms. G. told the appellant to “speed up” that, on a balance of probabilities, she was indicating to the appellant that he was nearing the cut-off time for that test. I do not find that if Ms. G. said “speed up” that, on a balance of probabilities, she was implying that she was pressed for time/rushed because the appellant arrived late for his appointment. In addition, I find upon review of the information written or checked off by Ms. G. on the “In Clinic Assessment” portion of the FDA, that Ms. G. did review medical information sent by the appellant’s treating physician(s) and questioned the appellant. Furthermore, I am aware that persons with CI may score better on cognitive tests on some days versus others, and that some of the additional tests conducted by Ms. G. can elucidate visuo-spatial issues or concerns.

27The appellant has been prescribed and is taking the medication donepezil. The appellant testified that he did not know what that medication was for, nor could he be certain who prescribed it to him. However, I am aware that donepezil (Aricept) is indicated for symptomatic treatment of patients with mild, moderate and severe dementia of the Alzheimer’s type (i.e., CI). The CCMTA Standards refers to donepezil as a “cognition enhancing drug”.

28After a careful consideration of all the evidence available to me, I find on a balance of probabilities that the appellant suffers from CI.

b. Is the appellant’s medical condition of CI, if any, likely to significantly interfere with his ability to drive a vehicle safely?

29The Registrar has the burden of establishing that the appellant’s CI is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Registrar has met that burden.

30On October 18, 2021 the appellant went for a FDA at an approved centre of his choice.

31The appellant’s “on-road assessment” was conducted in the presence of Ms. G. and a Driving Instructor. This part of the submitted report indicates that the appellant has or is “skill deficit/not functional for driving” regarding:

• awareness of driving environment (decreased general observations);

• Occupation Therapist’s on-road score (decreased processing and reaction speed, right of way confusion); and

• Driving Instructor’s on-road score (poor lane position, decreased speed and steering control).

32The overall recommendation was “deficits in functional driving skills – driving not recommended”. Driver training was neither recommended nor suggested.

33In the “Additional Comments Section” of the report it was noted that:

• during the drive, critical driving errors were observed as he failed to adjust his steering and speed on curved roads;

• driving instructor intervention provided by verbal intervention and taking control of the steering wheel on two occasions;

• executed a left turn onto the wrong side of the road (driving instructor required to physically intervene);

• attempted a lane change with vehicle in adjacent lane (driving instructor required to physically intervene);

• aborted road test due to safety concerns; and

• based on the above, client did not meet the minimum standard of safe and predictable driving. Driving cessation is recommended and licence reinstatement is not recommended.

34As per its letter to the appellant dated October 25, 2021, the Registrar is currently of the opinion that the appellant’s driver’s licence should remain suspended until there is confirmation from the appellant’s treating physician, specialist or nurse practitioner that his condition has significantly improved and should such a report be received and approved, the Registrar would require the appellant to complete another FDA.

35The respondent stated that the Registrar’s opinion is consistent with Chapter 6 and specifically 6.6.1 (CI or Dementia) of the CCMTA Standards. The respondent highlighted that driver’s with CI are eligible for any class of licence if a complete medical assessment indicates cognitive functions necessary for driving are not impaired, or where required, a FDA shows the condition does not affect the ability to drive.

36The respondent also commented that on the CD form, Dr. Go. wrote, “The only way to assess [the appellant’s] driving ability is with a driving test.”

37The appellant is of the opinion that he, his driving record and his car insurance company are better at judging and a better indication of his driving ability than the evaluators who performed the FDA. He commented that he is “way ahead” (i.e. in his abilities to drive) of the less than 2-hour FDA assessment. The appellant stated that he has “so much driving experience”, has not had any traffic accidents for the past 10 years, nor any traffic tickets. The appellant read information from a letter sent to him by his insurance company. This information included that he is a “9-star driver”, does not do jump starts or drive late at night, has winter tires and has a 24% discount because of this. The appellant also indicated that if his driver’s licence is not reinstated by mid-January 2022, his car insurance policy will be cancelled.

38Furthermore, the appellant also stated that the FDA evaluators deliberately took him to an area where he had never driven before, that the driving instructor only took control of the steering wheel once (that being the left turn incident), he was aware of his driving environment and there was no traffic in the way when he needed to pass the vehicle blocking him. He indicated that the FDA report “is a hypocritical report submitted to the [Ministry] because [he] was half hour late for [his] appointment…”.

39The overriding consideration in this appeal is whether the Registrar has proven, on a balance of probabilities, that the appellant’s CI is likely to significantly interfere with his ability to drive a vehicle safely.

40The evidence indicates that the appellant has yet to accept or fully acknowledge that he suffers from CI. I find that this lack of acceptance implies that the appellant has a reduced level of insight into his medical condition and the impact that this medical condition may have on his ability to drive.

41As noted above, although I am not bound by the CCMTA Standards, they may be persuasive. I note that Chapter 6 states that:

• cognitive problems 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;

• no in-office test or battery of tests, including global cognitive screens such a MMSE or MoCA have sufficient sensitivity or specificity to be used as the sole determinant of driving fitness in all cases;

• abnormalities in these tests indicate a requirement for further testing and a clinician with doubts about a patient’s cognitive functioning and its effects upon driving should refer the patient for a FDA by an occupational therapist or directly to the licensing authority; and

• CI may cause a persistent impairment in driving and that drivers are not able to compensate for this functional impairment.

42I prefer the opinions of Ms. G. and the driving instructor over that of the appellant, that the appellant has deficits in functional driving skills and that these deficits are a result of his CI. I am aware that good cognitive ability is the foundation of competent driving and people with mild CI should receive comprehensive off- and on-road testing at specialized centres. The appellant had such a comprehensive test at an approved centre of his choice on October 18, 2021. The appellant scored below expected norms on all cognitive tests performed by Ms. G., a qualified professional, including tests which emphasized visuo-spatial perception. Furthermore, as per the on-road report, the appellant made critical driving errors which resulted in the road test being aborted prematurely due to safety concerns. Moreover, the overall recommendation was “deficits in functional driving skills - driving is not recommended”. The appellant did not meet the minimum standard of safe and predictable driving, driving cessation was recommended and licence reinstatement was not recommended.

43I acknowledge the burden, financial and otherwise, that the lack of a driver’s licence is having on the appellant. However, driving is a privilege, not a right. While I understand the practical challenges that can result from a licence suspension, I must apply the provisions of the HTA and Regulation, keeping in mind the objective of ensuring public road safety.

44I encourage the appellant to reach out to Dr. Go.’s replacement or to find a new family physician. As was stated by the respondent at the hearing, and is documented in the Ministry’s October 25, 2021 letter, should this physician confirm that there has been a significant improvement in the appellant’s CI, once the report has been approved by the Ministry, he will be required to complete another FDA. The appellant may choose any approved FDA centre on the Ministry’s list.

45Based on the totality of the evidence before me and after careful consideration, I find that the Registrar has discharged its onus of establishing that the appellant’s CI is likely to significantly interfere with his ability to drive a vehicle safely.

E. ORDER:

46For the reasons set out above, pursuant to subsection 50(2) of the HTA, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.

Footnotes

1. 1Pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c S. 22, “a tribunal may, in making its decision […] take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge”.