Date: 2022-10-26

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 license under subsection 47(1) of the Act.

Between:

Vincent Gallagher

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Peter Savage, Member

APPEARANCES

For the Appellant: Vincent Gallagher, Self-represented

Victoria Zucca, Daughter and Representative of appellant

For the Respondent: Stella Velocci, Agent

Heard by Teleconference: October 18, 2022

REASONS FOR DECISION AND ORDER

A. Overview

1By letter dated June 14, 2022, the Registrar of Motor Vehicles (the Registrar) suspended the appellant’s Class G licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), for medical reasons. The appellant appeals the suspension and asks the Tribunal to reinstate his licence.

2Having considered all the evidence and for the reasons that follow, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

B. Issue

3The issue in this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive a motor vehicle safely.

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

1. Does the appellant suffer from a medical condition, namely a cognitive impairment?

2. If the appellant does suffer from a cognitive impairment, is this likely to significantly interfere with his ability to drive a motor vehicle safely?

C. The Law

5The Registrar has the authority under s.47(1) of the HTA to suspend or cancel a driver’s licence for any grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e), or (f).”

6One sufficient reason to suspend a driver’s licence under s.47(1)(g) of the HTA is that the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely.

7Section 14(1)(a) of O. Reg. 340/94 under the HTA requires 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.”

8Section 203(1) of the HTA requires medical professionals to report prescribed medical conditions to the Registrar, while s. 203(2) gives medical professionals the discretion to report medical conditions that they believe might make it dangerous for a person to drive.

9Section 14(2)(a) of O. Reg. 340/94 allows the Registrar to consider the Canadian Council of Motor Transport Administrators (“CCMTA”) Medical Standards for Drivers when determining whether the requirements of s. 14(1) are met. The CCMTA Standards are not binding on the Registrar or on this Tribunal.

10The Registrar has the burden of establishing on a balance of probabilities that one or more grounds for suspending a driver’s licence has been made out.

11Pursuant to section 50(2) of the HTA, after a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar.

D. Evidence and Analysis

a. Does the appellant suffer from a cognitive disorder?

12In support of its allegation that the appellant suffers from a cognitive impairment, the Registrar relies on the Medical Condition Report (“MCR form”) dated May 2, 2022 and a Cognitive Disorder form (“CD form”), both from family physician, Dr. Jugnundan, and a geriatric assessment report dated July 8, 2022 authored by Nurse Practitioner Persaud.

13In the MCR form of May 2, 2022, Dr. Jugnundan advised that the appellant suffers from dementia. In the CD form, Dr. Jugnundan’s diagnosis is mild dementia or mild cognitive deficit. In the geriatric assessment report dated July 8, 2022, Nurse Practitioner Persaud concluded that the appellant’s cognitive function appeared to be normal, but the nurse could not rule out minimal cognitive deficit. The nurse recommended a functional driving assessment to assess the appellant’s fitness to drive. I will address that driving assessment later since that is more significant to discussing the second issue.

14The appellant testified that he felt well and didn’t feel he had a cognitive deficit.

15I find that the Registrar has established on a balance of probabilities that the appellant suffers from a medical condition, namely cognitive impairment.

b. Is the appellant’s medical condition of cognitive impairment likely to significantly interfere with her ability to drive a vehicle safely?

16The Registrar has the burden of establishing that the appellant’s cognitive impairment is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely. I find that the Registrar has satisfied this burden.

17The Registrar relies on the CCMTA Standards, chapter 6 which describes cognitive impairment and dementia and the concerns with driving with respect to that condition. The Registrar relies on chapter 6.6.1 which recommends, if required, functional driving assessments to show the condition does not affect ability to drive.

18The Registrar submits that, as per the CCMTA chapter 6, even mild-moderate cognitive deficiencies can lead to a catastrophic result in some drivers.

19In a letter dated July 21, 2022, the Registrar advised the appellant that the Registrar requires a satisfactory functional driving assessment from an approved Functional Assessment Centre. This was based on the CCMTA and the nurse practitioner’s recommendations.

20The appellant was assessed by Occupational Therapist, M. Bell at Skill Builders Physio and Rehab (“Skill Builders”). On September 27, 2022, Skill Builders issued a Functional Driving Assessment (the “driving assessment”) form, which confirmed a diagnosis of cognitive impairment and reported deficits in the appellant’s functional driving skills and recommended that the appellant do not drive.

21The driving assessment noted among other things:

i. Poor braking intervention

ii. Unawareness of speed limit changes

iii. Confusion at stop signs

iv. No blind spot checks when needed

v. Inadequate observational skills.

All of these observations support the Registrar’s position that the appellant is unsafe to drive.

22The appellant testified that he has had no accidents and his record shows no infractions. This is verified in the Registrar’s submission. The appellant testified that he is a safe driver and points to his clean driving record introduced by the Registrar. The appellant also pointed out that opposed to the family doctor’s findings the testing done by the Nurse Practitioner did not firmly diagnose a cognitive deficiency. Further the appellant testified that while the results of the driving assessment were not favourable it was his opinion that the test was unfair. The appellant noted that the driving test was too long, involved 400 series highway driving and was in a city he was not familiar with. While I understand with his concerns about the test I am more concerned with the functional driving deficits observed in the test.

23I find that the Registrar has established on a balance of probabilities that the appellant’s medical condition of cognitive impairment is likely to significantly interfere with his ability to drive a motor vehicle. I agree with the Registrar that the CCMTA Standard, chapter 6.6.1 is reasonable and relevant to the appellant, and I apply it here. Its concerns are well supported by the functional driving assessment of the appellant. I find that reinstating the appellant’s Class G licence would present a significant risk to the safety of the appellant, his potential passengers, and others using the roadways.

E. Order

24For the reasons set out above, pursuant to subsection 50(2) of the HTA, I confirm the Registrar’s decision to suspend the appellant’s Class G Licence.