Date: 2021-05-17

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:

D. Z. L.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Erica Weinberg, Member

APPEARANCES:

For the Appellant: D. Z. L., Self-represented

For the Respondent: Sonia De Santis, Agent

Heard by Teleconference: May 6, 2021

A. Overview:

1The 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”).

2The issue in this appeal is whether the appellant suffers from a medical condition, specifically cognitive impairment (“CI”), which is likely to significantly interfere with his ability to drive safely.

3Having considered all of the evidence before me and for the reasons set out below, I find on a balance of probabilities that the appellant suffers from the medical condition of CI. Furthermore, I find on a balance of probabilities, that this 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 a medical condition, specifically CI, which is likely to significantly interfere with his ability to drive a vehicle safely.

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

a. Does the appellant suffer from the medical condition of CI?

b. Is the appellant’s medical condition of CI, 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.

D. PRELIMINARY ISSUES:

12At the start of the hearing I reviewed the open court principle with the appellant as described in the appellant’s Notice of Hearing, dated March 25, 2021, (“The hearing will be open to the public and the documents submitted by the parties may be made available to the public unless the Tribunal orders otherwise”) and as per Tribunals Ontario’s Access and Privacy Policy.

13The appellant expressed that he had no concerns regarding the observers in attendance at the hearing.

14However, the appellant expressed significant distress and concerns regarding some of the intimate details of the personal matters contained in the record.

15Normally, the Tribunal’s decisions include the names of the parties to the proceeding in accordance with the open court principle: see Toronto Star v. AG Ontario, 2018 ONSC 2586.

16As public access to tribunal proceedings is protected by s. 2(b) of the Charter of Rights and Freedoms, the Tribunal will only exceptionally restrict public access to the identity of parties by anonymizing or initializing their names in its decisions. Before the Tribunal will grant a request to anonymize a decision, it must be satisfied that the interest in safeguarding personal privacy in a particular case outweighs the public interest in including that information in the publicly accessible decision.

17Pursuant to s. 2(2) of the Tribunal Adjudicative Records Act, 2019, the Tribunal may order that all or part of an adjudicative record be treated as confidential if the tribunal determines that:

a. matters involving public security may be disclosed; or

b. intimate financial or personal matters or other matters contained in the record are of such a nature that the public interest or the interest of a person served by avoiding disclosure outweighs the desirability of adhering to the principle that the record be available to the public.

18In this case, I conclude that the details of the appellant’s challenges are of such an intimate and personal nature that the desirability of a confidentiality order outweighs the desirability of adhering to the open court principle.

19In considering the appropriate order, I am mindful of the requirement that I must choose an order that intrudes on the open court principle as minimally as possible. As a result, I have decided to make an order that the appellant be referred to in this decision using his initials.

20I am satisfied that not making such an order may pose a serious risk to the administration of justice. I conclude that the failure of the Tribunal to protect such intimate and personal details would likely have a chilling effect on participation in the Tribunal’s processes. If persons with challenges believed that their names and intensely personal health information would be published on a publicly available database regardless of its nature, they very well may decide not to exercise their right to participate as parties before the Tribunal.

E. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from CI?

21I find on a balance of probabilities that the appellant suffers from CI.

22Under s. 203(1) of the HTA, prescribed persons such as physicians must report to the Registrar every person who is at least 16 years old who, in the opinion of the prescribed person, has or appears to have a prescribed medical condition, functional impairment or visual impairment that may make it dangerous for the person to operate a motor vehicle.

23On January 8, 2021, the Registrar received an unsolicited Medical Condition Report (“MCR”) from psychiatrist Dr. F., indicating that she 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.

24By letter dated January 14, 2021 the appellant’s driver’s licence was suspended, effective January 24, 2021, with the reported medical condition of CI.

25In a completed Cognitive Disorder form (“CD” form) dated February 16, 2021, Dr. F. indicated that the appellant had mild CI/mild dementia and that his Montreal Cognitive Assessment (“MoCA”) score in December 2020 was “19”.

26The appellant stated and acknowledged that he has “some mild occasional memory lapses”, but they are not severe. Although at the hearing he was unable to express who referred him to Dr. F., in his Notice of Appeal (“NOA”) the appellant wrote, “My 2 sons had some concern about this and I saw Dr. F. who has long experience in this area."

27In addition, the appellant elaborated on his distinguished career as an academic scientist and clinician in Canada and elsewhere, and that, as per his NOA, his minor forgetfulness or lapses have not damaged his intellect.

28Furthermore, the appellant stated that, at Dr. F.’s suggestion, he underwent three sessions of brain imaging, the results of which were normal. However, as per his NOA, “Dr. F. still diagnosed [him] as having CI without any need for further investigation after she reviewed the results with hospital radiologists.”

29I prefer the opinion of Dr. F. over that of the appellant with regards to his current cognitive status. I am aware that normal brain imaging does not rule out that someone is suffering from CI. In addition, I am aware that the MoCA is a standardized and validated cognitive assessment tool, and that a score of greater than or equal to 26/30 is considered normal. The appellant scored “19” on a MoCA in December 2020. Furthermore, I am of the opinion that Dr. F. through her history, examination and testing of the appellant, can, on a balance of probabilities, more objectively determine whether or not the appellant’s “minor forgetfulness” is of significance or not.

30After 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?

31The 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.

32As per its February 19, 2021 letter to the appellant, the Registrar is of the opinion that in order to determine whether the appellant can safely operate a vehicle, it requires a satisfactory functional driving assessment (“FDA”) from an approved Functional Assessment Centre. The respondent stated that the Registrar is basing this opinion on Dr. F.’s indication in the completed CD form that she is of the opinion that the appellant requires a FDA and on 6.6.1 of the Canadian Council of Motor Transport Administrators’ Medical Standards for Drivers (the “CCMTA Standards”).

33The appellant is of the opinion that he has no problems with driving and has excellent driving skills. He is basing his opinion on his excellent driving record with “no accidents and virtually no tickets” over the decades, plus his years of travelling both back and forth and within the United States and Canada for work.

34When specifically asked whether or not his sons or family have expressed any recent concerns about his driving or suggested that he stop driving, the appellant stated, “No”. He then further elaborated on the known fact of potential winter driving issues.

35I note that in the “Comments” section of the completed CD form, Dr. F. states, “Family is concerned about his ability to drive.”

36Section 14(2)(a) of the Regulation allows the Registrar to consider 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.

37Although I am not bound by the CCMTA Standards, they may be persuasive. I note that Chapter 6 states that:

i) 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;

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

iii) 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 or directly to the licensing authority; and

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

38When questioned by the respondent more than once regarding whether or not the appellant had looked into or booked a FDA, the appellant either changed the topic or on one occasion stated that “he did one years ago”.

39Based on the evidence before me including the appellant’s “Extended Driver Record Search For Criminal Code Convictions”, the appellant is currently “unlicenced” with the expiry date of his licence being his birthdate in 2020 and his licence is suspended for medical reasons. In addition, there is no indication that any approved Functional Assessment Centre has applied on behalf of the appellant for a temporary driver’s licence for a FDA, which would be required upon booking.

40I prefer the opinion of Dr. F. over that of the appellant regarding the appellant’s need for a FDA to determine fitness to drive. Not only is Dr. F.’s opinion in keeping with the CCMTA Standards but is also in keeping with the Canadian Medical Association Driver’s Guide (“the CMA guide”). As per my knowledge, the CMA guide was prepared to help Canadian physicians determine whether or not their patients are medically fit to drive a motor vehicle safely. In addition, as per my knowledge, the CMA guide states 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.

41I acknowledge the appellant’s “frustration”, “infuriation”, “pain”, “anger” and financial burden of not having a driver’s licence, as well as his perceived feelings that Dr. F. has not supported him in his endeavour to get his licence back.

42While 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.

43In summary, I find, 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. In arriving at this conclusion, I have relied on the following:

i) Good cognitive ability is the foundation of competent driving;

ii) The appellant’s reported condition of mild CI does not diminish his significant achievements and accomplishments during his distinguished career as an academic scientist and clinician;

iii) Mild CI can have a direct effect upon fitness to drive;

iv) CI may cause a persistent impairment in driving and drivers are not able to compensate for such a functional impairment;

v) A MoCA does not have sufficient sensitivity or specificity to be used as the sole determinant of fitness to drive in all cases. A score of “19” on a MoCA indicates a requirement for further testing; and

vi) The appellant has yet to undertake a comprehensive off- and on-road test, such as a FDA, at an approved centre to determine if his current cognitive function effects his ability to drive safely.

44Based 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.

F. ORDER:

45For 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.

46Furthermore, for the reasons set out in Preliminary Issues section, I order that the appellant be referred to using his initials in the Tribunal’s decision.