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 licence under subsection 47(1) of the Act

Between:

William Perchuk

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: William Perchuk, Appellant

Randal Ponton, Support person

John Neniska, Support person and witness

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: October 6, 2022

A. Overview:

1William Perchuk (“the 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”), effective January 3, 2021.

2The issue in this appeal is whether the appellant’s reported medical condition of cognitive impairment (“CI”) is likely to significantly interfere with his ability to drive a vehicle safely.

3Having considered all of the evidence and for the reasons that follow, I find that the Registrar of Motor Vehicles (the “Registrar”) has met the burden of establishing 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.

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 CI, a medical condition likely to significantly interfere with his ability to drive a vehicle safely.

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

a. Does the appellant suffer from CI?

b. Is the appellant’s medical condition, if any, likely to significantly interfere with his ability to drive a vehicle safely?

C. LAW:

7Under 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”).

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.

12Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators’ Medical Standards for Drivers [February 2021] (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.

D. PRELIMINARY ISSUES:

13The hearing of this appeal was originally scheduled for August 18, 2022. Despite a number of attempts by the Tribunal office to reach the appellant during the hearing, the appellant did not appear. The Respondent’s representative stated that prior to the hearing he received a phone request on behalf of the appellant to postpone the hearing. In addition, the Tribunal office stated that prior to the hearing they had received an incomplete request for an adjournment. In an effort to ensure fairness to the appellant, I granted an adjournment of the hearing to October 6, 2022.

E. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from CI?

14I find, on a balance of probabilities, that the appellant suffers from CI.

15On December 12, 2020, the Ministry of Transportation received a letter from Dr. W. dated December 9, 2020. In this letter Dr. W. indicated that he had recently seen the appellant at the hospital for a medical issue. He further stated, “based on assessments by our occupational therapist [the appellant] has a possible mild CI. The MMSE [Mini Mental State Exam] score was 21/30. I would advise putting his licence on hold until you are able to assess this further”.

16In response to Dr. W.’s letter, and by letter dated December 24, 2020, the Registrar suspended the appellant’s driver’ licence, effective January 3, 2021 with the reported medical condition of CI.

17The appellant admits that at his age he does not remember everything, particularly more current things. However, the appellant denies that he has dementia (CI).

18The appellant is of the opinion that the timing of the cognitive test at the hospital was unfair. He spoke to the number of hours he had already been detained at the hospital prior to the test being done, the stress he was under and poorer physical health he had at that time because of his wife’s end-of-life illness and her being in a nursing home, plus the facts that he was taking sleeping pills, the person performing the test was wearing a mask, he is hard of hearing, and he could not hold the pencil required for part of the test.

19The appellant submitted as evidence a note from a physician’s Electronic Medical Records, dated April 25, 2019. In that note the physician stated that, at that time, the appellant still did his own taxes, paid his own bills and his MMSE score was 26/30. The appellant also submitted statements from friends/acquaintances written during 2019-2021 in support of his mental competence and his driving abilities.

20Furthermore, the appellant submitted as evidence part of a “Functional Activities Questionnaire” from March 2021. The name of the person rating the Activities has been blacked out and it is obvious that a number of the ratings have been altered on the questionnaire. The appellant indicated on the form and at the hearing that these ratings are lies and are not right. The appellant stated that Dr. B., his primary care physician for about four years, is lying and does not want him to have his driver’s licence back.

21The appellant also spoke to his efforts since March 2021 to get a new primary care physician or another healthcare professional to perform a repeat cognitive test or support the reinstatement of his driver’s licence.

22I prefer the opinion of Dr. W., over that of the appellant, that the appellant suffers from CI. Dr. W. is a qualified healthcare professional and the cognitive assessment was performed by a qualified occupational therapist. As per my knowledge as a licenced and duly qualified physician in the Province of Ontario¹, I am aware that the MMSE is a validated cognitive test. The maximum MMSE score is 30 and a score of 20-24 suggests mild CI. Although the appellant’s MMSE score in December 2020 may have been lower than expected based on hearing impairment, stress or the use of sleeping medications at that time, the appellant has not submitted a new validated cognitive test score in the more than 21 months that have elapsed since December 2020. Furthermore, based on my knowledge, I am aware that it is not routine to perform a validated cognitive test on a patient whose hospital stay is very short and for unrelated reasons, as in the appellant’s case. Based on this, I find on a balance of probabilities that the in-hospital MMSE was performed because some healthcare professional involved in the appellant’s care had concerns about the appellant’s cognition.

23After 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?

24The 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.

25As per its letters dated December 24, 2020 and June 17, 2022, 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 at an approved Functional Assessment Centre.

26The respondent’s representative stated that the Registrar’s opinion is consistent with Chapter 6 and specifically 6.6.1 (CI or Dementia) of the CCMTA Standards. The respondent’s representative highlighted that drivers with CI are eligible for any class of licence if a complete 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. He emphasized that persons with CI can have difficulties with problem solving, attention and executive functions, all of which can affect safety to drive.

27The appellant pointed to the fact that he has driven all sorts of vehicles or machines, including mowers, bulldozers and semi-trailers. He spoke to his physical abilities including gardening, shoveling snow, fixing doors, making meals and walking a mile every day. He also spoke to the issues and challenges he has been facing without a driver’s licence.

28In addition, the appellant stated that the closest Functional Assessment Centre is about 700 miles from where he lives, he will not complete the functional driving assessment, this was not his fault and the process is not fair and not right. He emphasized his friends’/acquaintances’ positive character references.

29The overriding consideration in this appeal is whether the Registrar has proven, on a balance of probabilities, that the appellant’s CI is likely to significantly interfere with his ability to drive a vehicle safely.

30Although I am not bound by the CCMTA Standards, they may be applied by this Tribunal. I accept the safety concerns set out in Chapter 6 of the CCMTA Standards, which state:

• 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;

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

• 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 functional driving assessment by an OT or directly to the licensing authority;

• functional driving assessment is usually the most appropriate means of assessing the effects of CI upon driving unless severe dementia has been demonstrated; and

• CI may result in a persistent impairment in driving and these drivers are not able to compensate for this functional impairment.

31Based on a careful consideration of the totality of the evidence before me, 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. Good cognitive ability is the foundation of competent driving, mild CI can have a direct effect upon fitness to drive, CI may cause a persistent impairment in driving and drivers are not able to compensate for such a functional impairment. The appellant’s most recent validated cognitive score (December 2020) suggests mild CI and he has not submitted any updated validated cognitive score since that time. The Registrar has twice requested the appellant to complete a functional driving assessment, the most appropriate means of assessing the effects of the appellant’s mild CI upon safety to drive. The appellant has elected not to proceed with the assessment.

32I acknowledge the burden that the lack of a driver’s licence is having on the appellant. I also acknowledge the appellant’s complaint regarding the distance he must travel to take a functional driving assessment. However, driving a vehicle is a privilege, not a right. While 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.

33Based 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:

34For 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.

Footnotes

1. 1Pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c S. 22, “a tribunal may, in making its decision […] take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge”.