Tribunals Ontario Licence Appeal Tribunal
Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis
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 the Act - to suspend a licence.
Between:
Jon F. Klaus Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Panel: Dimitri Louvish, M.D. and Evelyn Spence, LL.B.
Appearances:
For the Appellant: Jon Klaus, Self-represented
For the Respondent: Sonia De Santis, Agent
Place and date of hearing:
By Teleconference May 19, 2021
REASONS FOR DECISION AND ORDER:
A. Overview
1The appellant’s driver’s licence was suspended on March 31, 2021, pursuant to section 47(1) of the Highway Traffic Act (the “Act”). The decision to suspend his licence was made by the Registrar of Motor Vehicles (the “registrar”) following its receipt of a medical condition report (“MCR”) from the appellant’s treating physician, Dr. L, indicating that the appellant has or appears to have mild dementia, which results in substantial limitation of his ability to perform activities of daily living.
2The appellant disagrees with the medical assessment and appeals the suspension pursuant to s. 50(1) of the Act. He maintains that he does not suffer from dementia and requests that his driver’s licence be reinstated.
B. ISSUE AND RESULT:
3The issue to be determined in this appeal is whether the appellant suffers from dementia or any other mental, emotional, nervous or physical condition or disability (a “medical condition”) which is likely to significantly interfere with his ability to drive a motor vehicle safely.
4Upon consideration of the available medical information and the evidence of the parties, we confirm the registrar’s decision to suspend the appellant’s driver’s licence. In our view, the appellant’s licence should remain suspended until he submits a functional driving assessment that supports the conclusion that he does not have a condition that will impact his driving ability.
C. FACTs:
5On or about March 13, 2021, the appellant suffered a bad fall and was taken by ambulance to the hospital. He was released after an overnight stay but was advised to see his family physician shortly afterwards for follow-up care.
6The follow-up appointment took place on March 23, 2021. At that appointment, Dr. L. administered the Montreal Cognitive Assessment (MoCA), a cognitive screening test designed to help health professionals in the detection of mild cognitive impairments. The appellant failed the MoCA, with a score 13/30 (where a “normal” score was noted to be ≥ 26/30). As a result, on March 24, 2021, Dr. L filed an MCR with the registrar, stating that the appellant appeared to have a cognitive impairment, dementia, which was “suspected due to failed MoCA.”
7After receiving the MCR, on March 31, 2021, the registrar issued a letter notifying the appellant that his driver’s licence had been suspended, pursuant to section 47(1) of the Act. The appellant was instructed to have his treating physician complete a Cognitive Disorder form, after which the Ministry of Transportation’s Driver Medical Review Office (“DMRO”) would review the information against the national medical standards and thereafter inform the appellant of the outcome of the review.
8On or about April 30, 2021, Dr. L. did complete a Cognitive Disorder form, which reiterated her assessment that the appellant suffers from a mild cognitive impairment, and that he requires a functional driving assessment. In the comments section of the form, Dr. L. wrote:
“Suspicion for mild dementia based on geriatric emergency medicine nurse assessment indicating subjective and objective findings of memory loss, in-office MoCA of 13/30 administered by myself, and personal observations during visits.”
9The Cognitive Disorder form was submitted directly by Dr. L to the DMRO. Following the DMRO’s review, on or about May 10, 2021, the appellant was informed, by letter from the registrar, that he was required to undergo a functional driving assessment to confirm he can safely operate a vehicle.
10At the time of the hearing, the appellant had not undergone a functional driving assessment.
D. LAW:
11Section 203 of the Act requires all physicians in the Province of Ontario to report to the registrar the name, address and clinical condition of any person sixteen years of age or over who is suffering from a medical condition that may make it dangerous for the person to operate a motor vehicle safely.
12The registrar has the power under subsection 47(1) of the Act to suspend or cancel a driver’s licence for a “sufficient reason”. Subsection 14(1)(a) of Ontario Regulation 340/94 (the “Regulation”) under the Act states that a holder of a driver’s licence must not 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.
13Section 14(2)(a) of the Regulation allows the registrar to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”) when determining whether the requirements of subsection 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.
14Section 6.6.1 of the CCMTA Standards deals with eligibility for licensing of those who suffer from cognitive impairment or dementia. That section states that a person who suffers from cognitive impairment or dementia is eligible for licensing if:
A medical assessment indicates cognitive functions necessary for driving are not impaired, or
Where required, a functional driving assessment shows the condition does not affect the ability to drive.
15The registrar has the burden to establish on a balance of probabilities the grounds for suspending the appellant’s licence, which is that his medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely.
16Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the decision or order of the registrar.
E. EVIDENCE AND ANALYSIS:
17To determine whether the appellant suffers from a medical condition, we must examine and take into consideration the appellant’s medical history. If that history supports a finding that the appellant is a person with a cognitive impairment, we must determine whether the appellant’s condition is likely to significantly interfere with his ability to drive a motor vehicle safely.
Does the appellant suffer from a medical condition?
18The only medical evidence available to the Tribunal at the time of the hearing was the information in the MCR and the subsequently filed Cognitive Disorder form, both of which made specific reference to the appellant having a condition of mild dementia.
19The appellant denies having dementia and instead testified that when he met with Dr. L. at her office on March 23, he believed he was seeing her about the scars and bruising he suffered from the fall he endured on March 13. He admitted that, at the time of his visit with Dr. L., he was “a bit lost” and had difficulty concentrating. He believes this might have had to do with the interaction of the medications he was taking to manage his arthritis pain as well as those prescribed to manage his pain after the fall, which included Trazodone, Tramadol and Pregabalin, as well as Tylenol 3 and Demerol.
20The appellant further asserts that the MoCA test was administered to him without any notice or explanation of the reason why he was being assessed. As a result, he did not understand the importance of the test, including how it could result in him losing his driving privileges.
21The appellant also testified that he suffers from moderate to severe hearing loss, and he uses a hearing device. He experienced great difficulty hearing and understanding Dr. L.’s verbal prompts when she administered the MoCA and he attributed his low score on the test, in part, to the fact that Dr. L. was wearing a mask so he was not able to read her lips.
22After the hearing, on or about May 31, 2021, the appellant filed post-hearing submissions, which included an audiogram report from 2019, in an effort to further support his position that he suffers hearing loss in both ears. A copy of the report was also sent to the respondent, but the respondent did not provide the Tribunal with its position regarding the admissibility of the evidence. While we considered soliciting post-hearing submissions from the Registrar on the impact, if any, of the audiogram report, we decided against doing so as we felt it was unnecessary. The report related to information from 2019 and was repetitive of the oral evidence the appellant provided to the Tribunal during the hearing. Ultimately, the report did not change our conclusion on the outcome of the appeal.
23We accept, based on the appellant’s oral testimony, that he suffers from hearing challenges. We also accept that the conditions under which the MoCA was administered to the appellant may not have been ideal, particularly considering the interaction between his various medications at the time of assessment and the fact he had difficulty hearing Dr. L’s verbal instructions. While these factors certainly may have contributed to his low test score on March 23, the Cognitive Disorder form, which Dr. L. completed on April 30, clearly specified that her conclusion that the appellant suffers mild dementia was based not only on the results of the in-office MoCA, but also on personal observations during the appellant’s visits as well as the subjective and objective findings of memory loss by the geriatric emergency medicine nurse.
24Furthermore, although taking issue with the way in which the MoCA test was administered to him, the appellant testified that he did not, at any point, request the test be readministered, nor did he take steps to obtain a second opinion. He did state, however, that he received a call from one of Dr. L.’s colleagues, Dr. W., who conducted an over-the-phone follow-up consultation with him. The appellant stated that Dr. W. was probing to confirm any signs of dementia, and that Dr. W. concluded the call by saying he was “okay.” No information regarding the call between the appellant and Dr. W. was filed with the Tribunal, nor was there any mention of the consultation in any of the medical reports.
25While we do not dispute that the appellant received a call from Dr. W., we find it unlikely that, in the face of conflicting information consisting of the MCR, Cognitive Disorder form and failed MoCA test, Dr. W. would indicate that the appellant is safe to drive. In this regard, we prefer the opinion of the appellant’s treating physician, supported by documentary medical evidence, over the reported contents of the phone call that the appellant recalls having had with Dr. W. However, we do note that the appellant may reapply for a licence at any time. And should he do so, we would encourage him to provide a report from Dr. W. in support of his application.
26In the absence of any medical evidence supporting the appellant’s fitness to drive, other than his own personal convictions, and when presented with the MCR and Cognitive Disorder forms, both of which contain opinions from his physician suggesting that there is an impairment present that could jeopardize public safety, we decline to make an alternate finding. We are guided by and must take into consideration the available medical evidence, and that evidence establishes that the appellant suffers from a mild cognitive impairment.
Is the appellant’s condition likely to significantly interfere with his ability to drive a motor vehicle safely?
27Having found that the medical evidence establishes that the appellant has a mild cognitive impairment, we must determine if this condition is likely to significantly interfere with his ability to drive safely.
28Driving is an activity that requires a certain level of cognitive function in order to do so safely. Dementia is a serious medical condition that impacts cognitive function – the appellant driving with the condition could have devastating results both to the appellant and other road users. The risk is sufficiently great that it needs to be explored further and that is what the registrar seeks to do.
29The effects of a mild cognitive impairment may be subtle and difficult to assess in an office setting. Judgement and insights are important for driving, yet the usual battery of tests to assess the extent of cognitive limitations does not evaluate these functions. This is noted in the CCMTA Standards. Hence, a functional driving assessment is usually the most appropriate means of evaluating the effects of mild cognitive limitations upon driving.
30We find Dr. L.’s assessment and the registrar’s requirement that the appellant ought to obtain a functional driving assessment to evaluate the impact of his condition on his driving ability to be a reasonable and prudent approach in the circumstances, and one which is consistent with the recommendations in the CCMTA Standards.
F. CONCLUSION AND ORDER:
31We appreciate that the loss of a driver’s licence, even if only temporary, can have significant consequences for the individual affected. While we understand and sympathize with the appellant’s concerns about the practical challenges that result from his licence suspension, we must apply the provisions of the Act and regulations, keeping in mind the objective of ensuring public road safety.
32To that end, and for 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 hereby confirmed.
LICENCE APPEAL TRIBUNAL
____________________________ Dimitri Louvish, M.D., Member
____________________________ Evelyn Spence, LL.B. Member
Released: June 10, 2021