Paul Berard v. Registrar of Motor Vehicles, 2021 CanLII 40669

Original Date: 2021-05-10

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:

Paul Berard

Appellant

And

Registrar of Motor Vehicles.

Respondent

DECISION AND ORDER

PANEL: Dr. Peter Savage, Member

APPEARANCES:

For the Appellant: Paul Berard, Appellant Jami Sanfileben, paraegal

For the Respondent: Kyle Biel, Agent for the Registrar

Heard by Teleconference April 19, 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 driver's licence on January 28, 2021 because of the appellant’s alleged cognitive deficit disorder.

B. ISSUE

2The legal issue for the Tribunal to determine is whether the appellant suffers from a medical condition, specifically cognitive deficit disorder, and whether this condition is likely to significantly interfere with the appellant’s ability to drive safely.

C. RESULT

3For the reasons that follow, the Tribunal finds that the appellant does suffer from a medical condition and this condition is likely to significantly interfere with the appellant’s ability to drive safely. Accordingly, I confirm the decision by the Registrar to suspend the appellant’s class G driver’s licence.

D. LAW:

4Under the Highway Traffic Act (HTA) 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)(g) of the HTA and s. 14(1)(a) of O. Reg. 340/94 under the HTA (the “Regulation”). Section 47(1)(g) allows the Registrar to suspend a driver’s licence for “any other sufficient reason”. The sufficient reason is found in s. 14(1)(a) of the Regulation, which states that a driver must not suffer from a medical condition that is likely to significantly interfere with their ability to safely drive a motor vehicle of the applicable class.

5Pursuant to 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. A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA. On appeal, the Registrar has the burden of establishing, on a balance of probabilities, that the appellant’s ability to drive safely is likely to be significantly affected by a medical condition. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

E. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from a medical condition?

6The Registrar alleges that the appellant has cognitive deficit disorder based on the report of Dr. Sameer Kalra, dated November 3, 2020. The appellant does not deny that he has difficulty with his memory and that he attended Dr. Kalra to discuss memory issues. He maintains, however, that the memory difficulties will not affect his driving and he also feels the test was not fairly administered by Dr. Kalra.

7The medical evidence presented at the hearing supports the conclusion that the appellant suffers from cognitive deficit disorder. This diagnosis was made by Dr. Kalra based on a MoCA (Montreal Cognitive Assessment Test), a standard tool used by practitioners to diagnose cognitive deficits. On November 3, 2020, Dr. Kalra completed a Medical Condition Report in which Dr. Kalra stated that the appellant has or appears to have a condition or disorder, namely cognitive deficit disorder.

8The remainder of the evidence is from the testimony of the appellant and his subsequent cross-examination. The appellant admits he has trouble with memory and maintains the testing done was unfairly. He notes his blood pressure was elevated and he was very nervous, and he knew he was doing poorly on the test and that just made him perform even more poorly. The appellant stated he just didn’t know what was going on. The appellant has not been able to consult with another doctor to have his questionnaire filled out and really doesn’t understand why another test is needed. His newest doctor has agreed to have a specialty nurse booked to do the testing before the questionnaire is filled out.

9On cross-examination by the respondent the appellant had difficulty describing his employment history. He stated he retired in 1971 and then did many other jobs. He stated he drove transport for 5 years with his wife as a team but wasn’t clear whether this was 5 years ago or twenty years ago. The appellant also noted he had driven a school bus in Picton County but couldn’t really say when that employment took place. The appellant also had significant difficulty describing his residential history repeatedly changing his chronological history. He was assisted by his wife who was in the background helping him to recall past events. The appellant’s answers were hesitant and on many occasions were contradictory.

10The appellant had no recall of the questions asked on the MoCA test preformed in Dr Kalra’s office, but with guidance from the Registrar said it was coming back to him. He recalls he knew he was doing badly on the test. The appellant testified he was on no medications and did not take alcohol or illicit drugs. The appellant testified he was coping well without his licence and was using his bike and walking in order to get about and felt that this exercise was helping him to get more fit and healthier.

11Based on the above, I find on a balance of probabilities that the appellant suffers from cognitive deficit disorder. Dr. Kalra was in the best position to assess the appellant’s medical condition and there was no medical evidence presented at the hearing which causes the Tribunal to doubt his assessment.

b. If the appellant suffers from a medical condition, is it likely to significantly interfere with his ability to drive a vehicle safely?

12The Registrar has the burden of establishing that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Registrar has met that burden.

13The appellant testified he had good driving habits. He noted that he always watched signs and he was good at checking his blind spot. He pointed to his good driving record over 6 decades and also noted he had no accidents. He stated that while he may have some memory loss it was not affecting his driving.

14The appellant’s paralegal noted the only evidence the Registrar had was the one report from Dr. Kalra and he pointed to the appellant’s evidence that this test was possibly not accurate due to the stress of the examination situation.

15The appellant testified he was safe to drive and felt there was no further need for any cognitive testing.

16The Registrar reviewed the Canadian Council of Motor Transport Administrators (CCMTA) medical standards for drivers. The CCMTA is a body of experts who set standards and recommendations for drivers who face a variety of medical conditions. He noted this body makes recommendations and those recommendations are suggestions and not the law.

17The Registrar noted that the CCMTA standards state that the condition of cognitive deficit may affect a driver’s memory, attention, and judgement and any deterioration in these functions could affect a driver’s ability to operate a motor vehicle safely. The Registrar drew our attention to Section 6.6.1 of the CCMTA standards, which states drivers with cognitive deficits are eligible to drive if they have a complete medical assessment indicating cognitive functions needed for driving are not impaired, and a functional driving test may be completed if necessary. The CCMTA standards state that the MoCA test by itself is not a reason to suspend a licence. It is a definite indication that more testing is needed to assess the significance of the cognitive deficit.

18The Registrar made the following submissions with respect to how the appellant’s condition affects the appellant’s ability to drive:

a. the appellant’s condition is not yet fully diagnosed and the cause of this condition is noted as unknown and the questionnaire that is needed to help clarify the diagnosis has not been filled out;

b. the appellant’s condition seems to be confirmed in his responses to questions and some of his confusion with regards to dates and times includes delusions which are ongoing, and which may impact his ability to drive safely;

c. there is no medical evidence presented that states the appellant is safe to drive, despite evidence to the contrary; and

d. The appellant seems to have a lack of insight into how this condition might affect his driving.

19Five months have passed since the suspension and the appellant has not had the questionnaire filled out. While COVID-19 is a factor that may explain the delay in getting this task completed, the Registrar feels this could have been accomplished by now. Until further information is obtained the drivers licence should remain under suspension.

20The evidence supports the Registrar’s submissions. I find, on a balance of probabilities, that the appellant’s medical condition of cognitive deficit disorder is likely to significantly interfere with his ability to drive a vehicle safely. A review of the evidence and the appellant’s submissions shows that he has a significant cognitive deficit issue and that he lacks insight with respect to his condition and its impact on his ability to drive safely.

F. ORDER:

21For 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.