Gian Kaila v. Registrar of Motor Vehicles, 2021 CanLII 62556

Date: 2021-07-14

Appeal under section 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:

Gian Kaila

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Dr. Peter Savage, Member

Appearances:

For the Appellant: Gian Kaila, Self-Represented

For the Respondent: Sonia DeSantis, Agent for the Registrar

Heard by Teleconference: June 30, 2021

REASONS FOR DECISION AND ORDER

A. OVERVIEW:

1On March 15, 2021, the Registrar suspended the appellant’s G licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), after receiving a report from a physician that the appellant suffers from mild cognitive impairment, a condition likely to significantly interfere with his ability to drive safely. The appellant appeals the suspension and asks the Tribunal to reinstate his licence.

2Having considered all of the evidence and for the reasons that follow, the Tribunal confirms the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.

B. ISSUES:

3The issue in this appeal is whether the appellant suffers from a medical condition, specifically mild cognitive impairment, which is likely to significantly interfere with his ability to drive a vehicle safely.

4To answer that issue, I will address the following questions:

a. Does the appellant suffer from a medical condition?

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

C. LAW:

5Under the 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) of the HTA and s. 14(1)(a) of O. Reg. 340/94 under the HTA (the “Regulation”).

6Under 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.

7A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.

8On appeal, the Registrar has the burden of establishing, on a balance of probabilities, that the appellant’s ability to drive safely is significantly affected by a medical condition.

9Following 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. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from a medical condition?

10The Registrar alleges that the appellant suffers from mild cognitive impairment based on the reports of Dr. Samantha Lavitt and Dr. Samantha Lanciault as well as the testimony of the appellant. The Registrar confirms the condition was brought to the ministry’s attention through an unsolicited medical report submitted February 26, 2021 by Dr. Lavitt, the appellant’s family doctor.

11The appellant denied the fact he has mild cognitive impairment and maintains the medical doctors erred in the administration and scoring of the MoCA test (the MoCA test or Montreal Cognitive Assessment is a standardized test to help professionals test for possible cognitive deficit).

12The appellant testified he has had concerns about his memory for many years and asked his doctors in British Columbia for medication to help with his memory as he didn’t feel as sharp as he had previously. The doctors in British Columbia said he could try Gingko Baloba, a naturopathic product to help his memory but they felt there was no prescription medication that would help. The appellant did not try the naturopathic medication. In January 2021 he asked Dr. Lavitt for help for his memory and this resulted in the first MoCA testing.

13Following the appellant’s low score on the first test, the appellant requested a second attempt at the MoCA test and this test was completed by Dr. Lavitt. The result of this test was a corrected score of 23/30. The score was slightly higher than the previous MoCA test but still in the range suggesting mild cognitive impairment. A score of 26/30 or greater is the normal range.

14The appellant argued his low score on both tests was not a result of cognitive impairment but was the result of English being his second language and unfairness and error on the part of Dr. Lavitt.

15The medical evidence presented at the hearing supports the conclusion that the appellant suffers from mild cognitive impairment. This diagnosis was made by Dr. Lavitt in the unsolicited medical condition report submitted February 26, 2021 and confirmed by Dr. Lanciault in the cognitive impairment questionnaire submitted April 15, 2021.

16The appellant’s testimony also confirms the appellant’s own concern about forgetfulness and memory issues that led him to a series of doctors asking for help with this problem. This is very suggestive of mild cognitive impairment.

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

17The 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.

18The Registrar drew attention to the CCMTA (Canadian Council of Motor Transport Administrators) standards and recommendations. She pointed out the dangers that mild cognitive impairment could cause while driving. The Registrar agreed with the appellant that not all cases of mild cognitive impairment required licence suspension. The Registrar outlined the requirements that would be needed to consider licence reinstatement. This would include a functional driving assessment. The Registrar argues that this functional driving assessment is the only way to assess the impact of the mild cognitive impairment has on the appellant’s ability to drive safely.

19The appellant maintains he has a safe driving record and continued to argue that the doctors have made an error in making the diagnosis of mild cognitive impairment. The appellant submitted letters from previous employer, CAA insurance company and a British Columbia insurance search company confirming a long past history of a safe driving record.

20The appellant testified that he will not have a functional driving test as he feels the wrong diagnosis has been made and he doesn’t need to have the functional driving assessment. He also argues that the cost is excessive and that he is being treated unfairly.

21The Registrar made the following submissions with respect to how the appellant’s condition affects the appellant’s ability to drive safely:

1. the appellant’s condition is confirmed by two physicians and substantiated by two MoCA tests with results below 26/30 confirming a diagnosis of mild cognitive impairment;
2. the appellant’s testimony confirms the appellant has a long history of concerns with memory loss. These concerns resulted in the appellant seeking medical help for issues of memory loss. This is very suggestive of mild cognitive impairment;
3. the appellant denies the diagnosis and has no plans to change his approach to driving;
4. the Registrar feels the only way to ensure the appellant’s condition does not affect his ability to drive safely is to have a functional driving assessment performed by an accredited occupational therapist;
5. The HTA empowers the Registrar to order a functional driving test when driver safety is in question. Under 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; and
6. The CCMTA in Section 6.6.3 recommends a functional driving test to determine a driver’s fitness to drive in cases of mild cognitive impairment.

22The evidence supports the Registrar’s submissions. I find, on a balance of probabilities, that the appellant’s medical condition of mild cognitive impairment 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 health issue and that he lacks insight into the potential dangers of this condition and its possible impact on his ability to drive safely. The appellant made it clear that he feels he does not need a functional driving test. The Registrar’s position is that until a functional driving test is completed and reviewed by the Registrar’s medical department the appellant’s licence must remain suspended.

E. ORDER:

23For 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.