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:
David Niles LeBlanc
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicators: Dr. Dimitri Louvish, Member Colin Osterberg, Member
Appearances
For the Appellant: David Niles LeBlanc, Self-represented
For the Respondent: Kyle Biel, Agent
Heard by Teleconference: April 28, 2022
REASONS FOR DECISION AND ORDER
A. Overview
1On August 4, 2021, 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 “Act”), after receiving a report from a treating physician that the appellant appeared to have a medical condition, namely cognitive impairment, that may make it dangerous for him to operate a motor vehicle. 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, we confirm 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 cognitive impairment, that is likely to significantly interfere with his ability to drive a vehicle safely.
4To resolve that issue, we will address the following questions:
Does the appellant suffer from cognitive impairment?
If the appellant does suffer from cognitive impairment, is this likely to significantly interfere with his ability to drive a motor vehicle safely?
C. lAW
5Under the Act, the Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on highways. In this case, the Registrar acted pursuant to s. 47(1) of the Act and s. 14(1)(a) of O. Reg. 340/94 under the Act (the “Regulation”). Those provisions empower the Registrar to suspend a driver’s licence if the licence holder suffers from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle safely.
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.
7Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA Standards”) when determining whether the requirements of s. 14(1)(a) are met. The Tribunal may take the CCMTA Standards into consideration, although they are not binding on us.
8A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the Act.
9On appeal, the Registrar has the burden of establishing, on a balance of probabilities, that the appellant’s ability to drive safely is likely to be significantly affected by a medical condition.
10Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the decision or order of the Registrar.
D. EVIDENCE AND ANALYSIS
a. Does the appellant suffer from cognitive impairment?
11The Registrar alleges that the appellant suffers from cognitive impairment based on the reports of two physicians, Dr. Laith Bustani, a doctor in the Emergency Department at Queensway Carleton Hospital in Ottawa, and Dr. Andrea Cupsa, the appellant’s family doctor.
12The appellant did not present any medical evidence at the hearing but denies that the medical evidence presented by the Registrar supports the diagnosis of cognitive impairment.
13For the reasons which follow, we are satisfied that the Registrar has proven on a balance of probabilities that the appellant suffers from cognitive impairment.
14On April 20, 2021, Dr. Bustani completed a Medical Condition Report (“MCR”), which was submitted to the Ministry of Transportation, and which states that the appellant has, or appears to have, a disorder resulting in cognitive impairment that affects attention, judgement and problem solving, planning and sequencing, memory, insight, reaction time or visuospatial perception, and results in substantial limitation of the appellant’s ability to perform activities of daily living. The MCR indicates that this is due to dementia.
15The MCR states that the appellant has or appears to have a medical condition, functional impairment or visual impairment that may make it dangerous for him to operate a motor vehicle and is being reported pursuant to section 203(2) of the Act.
16As the result of receiving Dr. Bustani’s MCR, the Registrar suspended the appellant’s driver’s licence and advised him that, in order for licence reinstatement to be considered, his physician was required to complete a Cognitive Disorder form.
17On September 12, 2021, Dr. Cupsa completed the Cognitive Disorder form indicating that the appellant had moderate cognitive impairment at that time. In the “Comments” section of that form, Dr. Cupsa states, in part: “Suspected frontal lobe dementia…” The rest of the comment is illegible.
18On February 1, 2022, Dr. Cupsa completed another Cognitive Disorder form which states that the appellant had mild cognitive impairment at that time. In addition, Dr. Cupsa states that the appellant was admitted to hospital in July 2021 with dehydration/ART/delirium and self neglect. She states that the appellant has since recovered well and is back to his baseline self. The appellant declined follow-up with geriatrics, neurology and memory clinic as he feels those are not needed. His cognitive functions were “back to baseline” at that time but were not formally assessed according to Dr. Cupsa.
19Both Dr. Bustani and Dr. Cupsa say that the appellant suffers from cognitive impairment. In the absence of contrary medical opinion, we are satisfied that the Registrar has established on a balance of probabilities that the appellant suffers from cognitive impairment.
b. Is the appellant’s cognitive impairment likely to significantly interfere with his ability to drive a motor vehicle safely?
20The Registrar has the burden of establishing on a balance of probabilities that the appellant’s cognitive impairment is likely to significantly interfere with his ability to drive a motor vehicle safely.
21The Registrar relies on the CCMTA Standards in support of its position that the appellant’s cognitive impairment significantly interferes with his ability to drive a motor vehicle safely.
22Although we are not bound by the CCMTA Standards, they are persuasive, and we may take them into consideration. We note that Chapter 6 of the CCMTA Standards states, among other things, that:
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 a cognitive screen such as 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 (“FDA”) or directly to the licensing authority; and
cognitive impairment may cause a persistent impairment in driving and drivers are not able to compensate for this functional impairment.
23Section 6.6.1 of the CCMTA Standard recommends that, when considering the eligibility for a driver’s licence of a person who has been diagnosed with cognitive impairment or dementia, there should be a complete medical assessment provided which indicates cognitive functions necessary for driving are not impaired, or a functional driving assessment which shows the person’s condition does not affect their ability to drive.
24We agree with the concerns expressed by the CCMTA, and we find that the guidelines for considering reinstatement in s. 6.6.1 are reasonable.
25On September 20, 2021, after receiving the Cognitive Disorder form completed by Dr. Cupsa, the Registrar advised the appellant that it required an FDA in order to consider reinstatement of the appellant’s licence and provided him with a list of assessment centres where the FDA could be conducted.
26An FDA was scheduled to take place December 13, 2021, but the appellant failed to attend the appointment. He says that he had no way of getting to the appointment since he lives in an area without public transportation, and he is unable to drive himself without a valid driver’s licence.
27As noted above, Dr. Cupsa’s MCR dated February 1, 2022, notes that the appellant was not formally assessed, and he declined to be seen by the specialists Dr. Cupsa recommended for that purpose.
28The appellant denies suffering from cognitive impairment or that he is unsafe to drive. He says he has driven motor vehicles for many years without incident and he was able to work as a salesman for 30 years. He says that he had a hospital admission in July 2021 but that was because he fell on a wet deck and injured his leg. He denies that the hospitalization was related to cognitive issues.
29The appellant does not remember being referred to any specialists by Dr. Cupsa and does not believe he has been formally assessed with respect to his cognitive status. He does not remember making the appointment for his FDA in December 2021 and did not appear to understand the procedure by which the FDA was to take place although it had been explained to him a number of times by the representative of the Registrar both prior to, and during the hearing.
30Based on the opinions of Dr. Bustani and Dr. Cupsa, and the evidence presented at the hearing, we are satisfied that the Registrar has proven on a balance of probabilities that the appellant’s cognitive impairment is likely to significantly interfere with his ability to drive safely. In our view, the Registrar’s request for an FDA prior to considering reinstating the appellant’s licence is reasonable in the circumstances.
E. ORDER
31For the reasons set out above, pursuant to subsection 50(2) of the Act, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.
LICENCE APPEAL TRIBUNAL
________________________
Dr. Dimitri Louvish, Member
_______________________
Colin Osterberg, Member
Released: May 10, 2022