Date: 2022-05-18

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 that Act – to suspend a licence.

Between:

Thomas Doiron

Appellant

and

Registrar of Motor Vehicles.

Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Peter Savage, Member

APPEARANCES:

For the Appellant: Thomas Doiron

For the Respondent: Stella Velocci, Agent

Heard by Teleconference: May 2, 2022

REASONS FOR DECISION AND ORDER

A. OVERVIEW

1This is an appeal from a decision of the respondent, the Registrar of Motor Vehicles (the “Registrar”), to suspend the appellant’s class G driver's licence. The suspension took effect August 23, 2019 and the cause of the suspension was the appellant’s alleged cognitive impairment.

B. ISSUE

2The legal issue for the Tribunal to determine is whether the appellant suffers from a medical condition, specifically, cognitive impairment, and whether this condition is likely to significantly interfere with the appellant’s ability to drive safely.

C. CONCLUSION

3For the reasons that follow, the Tribunal finds that the appellant does suffer from a medical condition and that this condition is likely to significantly interfere with the appellant’s ability to drive safely. Accordingly, the decision by the Registrar to suspend the appellant’s class G driver’s licence is confirmed.

D. LAW

4The Registrar has the authority under s.47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (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 maybe suspended for “any other sufficient reason not referred to in clause (d), (e), or (f).”

5One 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.

6Sections 203.1, 203.2 and 204 of the HTA state as follows:

Every prescribed person shall report to the Registrar every person who is at least 16 years old who, in the opinion of the prescribed person, has or appears to have a prescribed medical condition, functional impairment or visual impairment. 2015, c. 14, s. 55.

A prescribed person may report to the Registrar a person who is at least 16 years old who, in the opinion of the prescribed person, has or appears to have a medical condition, functional impairment or visual impairment that may make it dangerous for the person to operate a motor vehicle. 2015, c. 14, s. 55.

A report required or authorized by section 203 must be submitted in the form and manner specified by the Registrar and must include,

(a) the name, address and date of birth of the reported person.

(b) the condition or impairment diagnosed or identified by the person making the report,

7Subsection 14(1)(a) of O. Reg. 340/94 enacted under the HTA requires that a holder of a driver’s licence must not suffer from “any…physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely.”

8Section 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 Minister of Transportation or on this Tribunal.

9The 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.

10Pursuant 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.

E. EVIDENCE & SUBMISSIONS

Registrar’s evidence

11The Registrar reviewed the sections of the HTA that the Ministry relied upon to suspend the appellant’s G-class licence, including section 14(2)(b)(ii), which empowers the Ministry to request information about a condition that may affect the appellant’s ability to drive and requires licence-holders to provide the requested information.

12The Registrar received an unsolicited medical report dated August 10, 2019 from Dr. Audrey Kiritharan, an internal medicine specialist. This report stated the appellant had suffered a stroke resulting in significant deficits.

13On August 13, 2019 the Registrar sent a letter to the appellant informing the appellant of the report and suspending his class G driver licence. The letter indicated the licence was suspended based on cerebrovascular disease with significant deficits. The letter included a cerebrovascular disease questionnaire to be filled out by the appellant’s health care provider.

14The Registrar received the completed cerebrovascular disease form completed by Dr. Sumabat on May 7, 2021. Dr. Sumabat had been the appellant’s family doctor for two years and indicated the condition had been stabilized and the underlying condition had been treated and was under control. He indicated the need for a functional driving assessment as recommended by the occupational therapist at the Orangeville hospital.

15The Registrar sent out a letter on June 2, 2021 stating that a functional driving assessment would be required in order to determine if the appellant could safely operate a motor vehicle.

16The Registrar noted the appellant completed the functional driving assessment on June 25, 2021. The Registrar noted the appellant did not pass the functional driving assessment and lacked functional skills necessary for driving. Several issues were identified by the Occupational Therapist and the Driving instructor who conducted the testing.

a) The appellant had a reduced awareness of the driving environment.

b) The appellant had lack of consistent blind spot checks and lack of scanning.

c) Made a critical error not seeing the left turn lane.

d) The functional assessment included cognitive testing and concluded that in the office testing the appellant had the cognitive skills needed for driving although this finding was qualified by stating that the testing done in the office does not test all the essential cognitive skills necessary for safe driving.

e) Visual testing showed normal central vision but slowed processing speed and difficulty with divided attention putting him in the moderate to high-risk category for driving.

f) The final recommendation of the functional driving test was that a temporary licence be issued valid only for training, to allow the appellant to undergo 5 further sessions to clarify whether the deficit in driving ability was completely due to his cognitive deficit or possibly due to correctable issues.

17The Registrar stated that a temporary licence was granted to allow the testing to be completed and the appellant had attended further lessons.

18The Registrar received a second functional driving assessment dated September 13, 2021. This report summarized three driving lessons and a final assessment done at the time of the third lesson. The final assessment stated there were deficits in functional driving skills and driving was not recommended.

19The reassessment after retraining noted:

a) Appellant unaware of surrounds (drove in bike lane).

b) Despite turning head, missed relevant traffic signs.

c) Occupational therapist noted poor focused attention, decisions and driving speed.

d) Driving instructor noted appellant did not pass progress evaluation.

e) In each of the lessons and the test the appellant made critical driving errors. These errors involved poor processing of information, poor ability to sustain focus and poor problem solving skills.

f) Appellant had poor insight into the errors and disagreed with the fact he was making errors.

20Following receipt of the second functional driving assessment the Registrar sent a letter to the appellant stating that the licence would stay under suspension until a cognitive assessment form was received indicating improvement of cognitive function and stating that another functional driving assessment may be required.

21The Registrar drew my attention to the cognitive Impairment report submitted by Dr. Sumabat dated November 30, 2021. The Registrar noted the doctor indicated there was no cognitive impairment. In this report the doctor wrote that the Orangeville Hospital occupational therapist had recommended another driving assessment. The doctor made no mention of the functional driving assessment which had already been completed (the question about recent functional driving assessment was not answered on the form).

22The Registrar pointed out that the Canadian Council of Motor Transportation Administrators (CCMTA) was a group of road safety experts from across Canada. The CCMTA made recommendations regarding driving safety and the effect of medical conditions on the ability to safely drive a motor vehicle.

23The Registrar pointed out the dangers that cognitive impairment could present while driving. The CCMTA points out that no single office assessment or cognitive test can definitively diagnose all types and degrees of cognitive impairment. The CCMTA suggests that the functional driving test is the best way to assess the effect of cognitive decline on driving ability. The Registrar directed me to section 6.6.1 of the CCMTA Standards. This section recommends relicensing when complete medical examination indicates that the cognitive function necessary for driving is not impaired and when needed a functional driving assessment indicates the condition does not affect the ability to drive safely.

24The Registrar drew my attention to the appellant’s driving record. There were no reports of any infractions.

25The Registrar pointed out that the medical evidence confirms a diagnosis of cognitive deficit. The Registrar pointed out that two functional driving tests were not passed by the appellant. The Registrar stated that under the HTA it has the power to demand another completed functional driving assessment. The Registrar stated the appellant has not completed the most recently requested test. The Registrar’s position is that until the test is competed and its results assessed by their medical department the appellant’s suspension should stand.

Appellant’s evidence

26The appellant’s position is that he is a safe driver and has no cognitive impairment.

27The appellant agrees with Dr. Kiritharan’s unsolicited medical report in 2019. He agrees he had had a stroke and initially had a weakness in his right leg. He maintains that he is completely recovered. He disagrees that he has a cognitive deficit and maintains this possible diagnosis was made by the occupational therapist who conducted his two functional driving tests. He maintains that the occupational therapist was incompetent and he testified he has gone so far as to report her to the College of Occupational Therapy.

28The appellant testified that in 2019 he suffered a mild stroke while driving to St. Louis. The stroke was caused by hypertension which has now been controlled with medication. He underwent physiotherapy and occupational therapy and at the time of this hearing all deficits have been corrected.

29The appellant testified he understood why the first functional driving test was requested and had been happy to undergo a functional driving test. However, he felt the test had not been fair for a number of reasons and he disagreed with the examiner’s opinions and findings.

a) The appellant felt the occupational therapist made mistakes in reading the road signs.

b) The occupational therapist told him to drive 100 KPH on the 400 highway when the signs clearly said the speed limit was 80 at that particular section of the highway.

c) The driving instructor didn’t pay attention to him and was continually talking to the occupational therapist.

d) They wanted him to drive the speed limit and he felt no need to travel that quickly.

e) The appellant felt that their comments about him missing signs and not checking his blind spot were erroneous.

f) When he pointed out the occupational therapist’s mistakes in reading the signs the occupational therapist was angry and didn’t admit she had made mistakes.

g) The opinion of the occupational therapist that he drove in a bike lane was wrong. He had to cross the bike lane to make a turn.

h) The appellant felt the suggestions of 5 more sessions to assess and remediate his driving was nothing but a way for the driving school to make more money. He believed he did not have a cognitive deficit and thus did not need any remedial driving instruction, however he took 2 remedial lessons and at the third lesson told them he was ready for testing.

30The appellant testified he was tested again on September 13, 2022. This test he felt was no fairer than the first test and all of his concerns about the first test were repeated in the second test. He felt his driving was good and sees no merit in the findings of the driving instructor or the occupational therapist.

31The appellant understood that as a result of the second functional driving assessment the Registrar required a cognitive impairment questionnaire be filled out and the appellant had his family doctor complete this form. The appellant points out that his doctor states there is no cognitive impairment. The appellant believes that because he has no condition, he does not need another functional driving test.

32The appellant dismissed the Orangeville occupational therapist request for a functional driving test. The appellant testified that asking for another test is something occupational therapists do all the time and it is just part of their routine.

33The appellant testified he felt his general health was excellent and he has no concerns about his mental or cognitive health. He felt his licence should be returned immediately and there was no need or legal requirement for yet another functional driving test.

Does the appellant have a cognitive impairment?

34The medical evidence is contradictory. The occupational therapist diagnosed a cognitive impairment whereas Dr. Sumabat diagnosed no cognitive impairment. Neither health care professional appears to have been in an ideal position to fully assess the appellant. The occupational therapist making all her observations while testing the appellant and Dr.Sumabat, despite knowing the patient for a number of years, did not record any office testing and was not present and apparently had no knowledge of the functional driving tests done.

35Both the CCMTA and the occupational therapist state that the testing done in the office does not test all the essential cognitive skills necessary for safe driving. Often the only way to test cognitive skills needed for safe driving is to do a functional driving test.

36In my view, the functional driving assessment is the best evidence before me. The observations made by the driving assessment team of the appellant’s lack of awareness of the driving environment, poor focus and lack of planning are consistent with the types of issues often seen in people with mild or moderate cognitive impairment.

37Based on the observations above I conclude on a balance of probabilities that the appellant has a minor cognitive impairment.

Is the appellant’s cognitive impairment likely to significantly affect the appellant’s ability to drive a motor vehicle safely?

38Having determined the appellant has a medical condition, namely cognitive impairment, I must now determine whether the Registrar has discharged its burden of proving that the licence ought to remain suspended.

39I am aware that the CCMTA notes that a cognitive impairment on its own is not a sufficient reason to suspend driving privileges. Many people with minor cognitive impairment are safe to drive and each case must be assessed individually.

40There is no direct medical evidence available to assist in making a determination of the effect the condition may have on the appellant’s ability to drive safely.

41There is direct evidence from the functional driving test. The appellant did not pass the functional driving test. Both the driving instructor and the occupational therapist initially gave the appellant failing marks and recommended the appellant have further training and testing to see if he could drive safely with remediation. The Registrar granted a temporary licence to allow for this training and testing. The appellant followed through with two lessons and then another test which resulted in a diagnosis of cognitive deficit and a recommendation that the appellant was not fit for driving.

42I find it significant that the Orangeville Hospital occupational therapist advised Dr. Sumabat that the appellant needed another functional driving test and, although the doctor found no evidence of cognitive impairment, he included the need for a further functional driving test in his letter of November 30, 2021.

43The Registrar draws my attention to the dangers associated with cognitive impairment and driving and submits the licence must remain suspended until further testing is done and the results are reported. The Registrar has the power in law to make this request, and indeed it is a condition of having a driver’s licence that the licence-holder submit to any examinations required by the Registrar: O.Reg 340/94, s. 15(1.1).

44The appellant submits that the report of Dr. Sumabat clearly states he does not have cognitive impairment and that the results of testing should not be considered as the test was not needed. He does not believe his driving ability requires further testing.

45The CCMTA Standards are not binding on the Tribunal, although the Regulation makes it clear that the Minister has the authority to consider them in making licensing decisions. In my view, the CCMTA Standards are persuasive in this case. The appellant’s functional driving assessments indicated that his ability to drive safely had been impaired and that further testing was needed to assess possible improvement possible relicensing could be considered.

46The Registrar suggests the evidence from the functional driving assessments is strong enough to convince us that the medical condition would affect the appellant’s ability to drive safely at this time and will not consider lifting the suspension until further functional testing is completed as requested.

47The appellant does not accept the opinions of the functional driving assessment and believes that the report of Dr. Sumabat is more accurate and as such the Driving assessment results should be disregarded and no further testing is required.

48While I agree that the Dr. Sumabat’s medical report states there is no cognitive impairment, I find that Dr. Sumabat did not have access to the functional driving assessment record of the appellant. When specifically asked, Dr. Sumabat in his report did not acknowledge that the appellant had undergone a functional driving assessment.

49Both the CCMTA and the occupational therapist state that office testing often does not fully test the cognitive skills needed for driving and the best test of cognitive skills for driving is the functional driving test. I accept this proposition.

50I prefer the position of the Registrar and the evidence of the functional driving exam. The Registrar’s position that the Ministry has the right under law to request a further functional driving test. That test has not been completed. He failed two tests, and until he can satisfy the Registrar that he can drive safely, namely by passing the functional driving assessment, the licence ought to remain suspended.

51The burden of proof rests with the Registrar in this appeal and I find the Registrar has established that the appellant’s cognitive impairment is likely to significantly interfere with his ability to drive safely.

ORDER

52Pursuant to subsection 50(2) of the Highway Traffic Act I confirm the Registrar’s decision to suspend the appellant’s class G driver’s licence.