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:
Lloyd Catlin
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: Erica Weinberg, Member
Appearances:
For the Appellant: Lloyd Catlin, Self-represented
For the Respondent: Stephen Grootenboer, Agent
Observers:1 Michael Beauchesne, Jan Dymond, and Brett Todd
Heard by Teleconference: May 6, 2022
A. Overview:
1Lloyd Catlin (“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 April 17, 2020.
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 of Motor Vehicles (“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. EVIDENCE AND ANALYSIS:
a. Does the appellant suffer from CI?
13I find, on a balance of probabilities, that the appellant suffers from CI.
14On March 13, 2020, the appellant blacked out while sitting on the couch at home. Hospital records, submitted as evidence, indicate that the appellant’s incident was a stroke.
15The appellant was hospitalized following the incident (at three different hospitals) and on April 10, 2020, he was discharged home from a physical rehabilitation hospital. The discharge summary from the rehabilitation hospital indicated that: the appellant’s stroke-related right-sided weakness and ataxia (abnormal, uncoordinated movements) had improved significantly; he had “ongoing cognitive deficits with a MoCA [Montreal Cognitive Assessment] score of 13/30”; and he had “been reported to the Ministry of Transportation [the “Ministry”] to suspend his licence due to cerebrovascular stroke”.
16Based on my knowledge as a licenced and duly qualified physician in the Province of Ontario2, I am aware that the MoCA is a standardized and validated cognitive assessment tool, and that a score of greater than or equal to 26/30 is considered normal.
17The Ministry received an unsolicited Medical Condition Report (“MCR”) with an examination date of March 30, 2020, from physician, Dr. ES. On the MCR, Dr. ES. indicated that he was of the opinion that the appellant was suffering from “stroke/TIA or head injury with significant deficits” which may make it dangerous for the appellant to operate a motor vehicle.
18In response to the MCR and by letter dated April 7, 2020, the Registrar suspended the appellant’s driver’s licence, effective April 17, 2021. The letter indicated that when the appellant’s condition improved, he should have his treating physician, specialist or nurse practitioner complete a Cerebrovascular Diseases Traumatic Brain Injury/Tumour or Other Neurological Diseases (“CVD”) form.
19At the hearing, the appellant’s testimony was inconsistent. There were also inconsistencies between the written and oral evidence before me. These inconsistencies included, but were not limited to, issues regarding who the appellant’s healthcare professionals have been since his discharge from hospital, when and what information he disclosed to or discussed with these healthcare professionals, and the last time he drove a commercial vehicle or held a valid commercial driver’s licence. However, I do not find, on a balance of probabilities, that the appellant intentionally tried to mislead the Tribunal with these inconsistencies.
20On May 6, 2020, Dr. M. completed the requested CVD form.
21The appellant initially testified that he had never met Dr. M. and did not know who she was. He stated that his previous physician had left the clinic he attended. After confirming that Dr. M.’s office address was the same as that of his previous physician (and this is the only clinic in town), the appellant recalled speaking with Dr. M. at least once on the phone after his discharge from hospital.
22Based on the above, I find that Dr. M. would have had access to any previous health care records from the appellant’s previous physician.
23On the completed CVD form, Dr. M. indicated that the appellant’s primary diagnoses were stroke and “other”. In the “Additional Comments or Information to Take into Consideration” (“Comments”) section of the form, Dr. M. wrote that the appellant had a history of alcohol abuse, the person cleaning his apartment found many “empties” and some not empty bottles of alcohol, but the appellant had indicated to her that he was no longer drinking alcohol. With regards to the appellant’s stroke, Dr. M. indicated that the appellant’s current status was stable, with ongoing mild symptoms. Dr. M. indicated that the appellant had “cognitive impairment or limitations”, and it was her opinion that the appellant required a functional driving assessment (“FDA”).
24By letter dated June 18, 2020, the Ministry requested that an additional form be completed, and that once this report had been reviewed and approved the appellant would be required to undergo a FDA at a functional assessment centre (“FAC”).
25On the July 15, 2020 completed additional form, Dr. M. wrote in the Comments section that the appellant has “underlying longstanding cognitive dysfunction” and that she is “uncertain whether [the] recent stroke changed anything”.
26On November 16, 2021, Dr. K. completed a Medical Report (“MR”) form which was submitted to the Ministry. The appellant stated that he: had moved to another city, had previous knowledge of MR forms from holding a commercial driver’s licence; had requested this form, himself, by phone; the form was not requested to be filled out by the Ministry at this time; and that as of the date of the hearing, Dr. K. had been his physician for about one year.
27On the completed MR form, under “Complete Health History”, Dr. K. indicated that the appellant’s only medical issue was “Diseases of Senses (Deafness, Vertigo, Visual Deficiencies, etc.)”, with “requires glasses” as the explanation. Dr. K. answered “No” to “Neurological Diseases (Seizures, Cerebrovascular Diseases, Parkinson’s Disease, Multiple Sclerosis, Dementia, Head Injury, etc.)”. Based on my knowledge, I am aware that the medical term for a stroke is “cerebrovascular accident” and would be considered a cerebrovascular disease. I also note that on the completed MR form, Dr. K.: did not indicate that the appellant suffered from CI, hand wrote “no concerns” in the Comments section and indicated that the appellant was a new patient. Moreover, I note that the date of the MR form, is slightly less than six months from the date of the hearing.
28The appellant testified that on his November 16, 2021 visit to Dr. K. he disclosed to Dr. K.: why he wanted the MR form completed; that he had suffered a stroke in 2020; and had a MoCA score of 13/30 at that time. However, I find on a balance of probabilities, that the appellant did not disclose this information to Dr. K. at this time. Had Dr. K. known about this information prior to filling out the MR form, it is highly likely that Dr. K. would have recorded this significant medical information on the MR form prior to sending it to the Ministry, and he did not.
29By letter dated November 18, 2021, the Registrar wrote to the appellant indicating that they had not received the results of his September 23, 2020 FDA.
30After the receipt and review of the results of the FDA and by letter dated November 30, 2021, the Registrar indicated that the appellant’s reported condition was CI and that in order to consider reinstatement of the appellant’s driver’s licence, the appellant was required to provide:
confirmation that there is a significant improvement in his cognitive functions;
confirmation that there are no other disqualifying medical concerns which will impact his ability to operate a motor vehicle safely; and
that once this report had been reviewed and approved by their office, he would be required to “undergo a driving evaluation at a rehabilitation centre”.
31On March 21, 2022, the appellant had a repeat MoCA conducted by an Occupational Therapist (“OT”), OT Q. The appellant’s repeat MoCA score was 21/30, still below normal.
32By letter dated April 11, 2022, Dr. K. wrote to the Ministry stating that the “appellant claims to have no residual deficits” related to his remote stroke. In addition, Dr. K. wrote that, in his opinion, the appellant lost points on the repeat MoCA “in areas that are likely related to his IQ”.
33Without deciding whether the appellant’s below normal MoCA score in 2022 is likely related to his IQ, I am aware that persons living with lower IQ scores are referred to as persons living with underlying cognitive dysfunction, and that cognitive dysfunction is equivalent to CI.
34After 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?
35The 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.
36On September 23, 2020, the appellant had a FDA at an approved FAC. The in-class portion of the FDA was conducted by a different OT, OT K., and the on-road evaluation was conducted by driving instructor, Mr. W., and OT K.
37In the reported in-class portion assessment of the FDA, OT K. wrote “he [the appellant] feels that he is back to his functional baseline”. She noted that the appellant was hesitant and nervous but had no physical issues of concern. However, under “cognition” she wrote, “Multiple deficits noted. Impaired scores in visual perception, Trails A, Trails B, and UFOV [Useful Field of View] (Category 4). Deficits note in speed of processing, divided attention and selective attention”. As per the full FDA report, Category 4 UFOV test results suggest a high risk for driving.
38At the hearing when questioned about the in-class portion of the FDA, the appellant stated that he found the “images on the screen” were “too fast” or “too quick”. Based on my knowledge, on a balance of probabilities the appellant was referring to the UFOV test.
39The report of the on-road test indicated that the drive lasted approximately 45 minutes. The report’s summary stated that the appellant “did not demonstrate the skills and abilities necessary for safe driving, and he is considered to be at high risk for collision”. The evaluators stated it was their clinical recommendation that the appellant “discontinue driving. [He] is not predictable on the road, he demonstrates slow decision making and inadequate awareness of the environment around him”. Furthermore, the report stated that the appellant had deficits in functional driving skills and that driving was not recommended. Mr. W.’s individual report indicated that Mr. W. “did take the opportunity to correct him [the appellant] and give him instructions ……He did not improve.” The report’s summary stated that “training was not offered as an option due to the degree and significance of errors observed on the drive”.
40Some of Mr. W.’s and OT K.’s observations from the on-road evaluation were as follows:
inconsistent scanning and observation of the environment;
slow decision making;
did not perform blind spot checks even after coaching; and
serious errors in judgment for lane changes, turns and merges, including: driving on the wrong side of the road; stopped at a cross-over when no pedestrian was there; when trying to merge from highway ramp onto the highway he stopped the car completely; merged onto highway at 45 km/hr with no blind spot check; top speed on the highway was 60 km/hr and he was coached to speed-up.
41As per its letter to the appellant dated April 19, 2022, the Registrar is of the opinion that the appellant’s driver’s licence should remain suspended until they have received confirmation of a satisfactory FDA from an approved FAC.
42The respondent 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 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 FDA shows the condition does not affect the ability to drive.
43The respondent acknowledged, that in Dr. K.’s April 11, 2022 letter, Dr. K. stated it was his opinion that the appellant is capable of driving and that the “lost points” in his latest MoCA were “in areas likely related to his IQ and not short-term memory or inattentiveness”.
44However, the respondent also pointed out that in OT Q.’s MoCA assessment letter to Dr. K., dated March 23, 2022, she wrote, “Given that driving is a complex task and the MoCA does not cover all necessary skills required for driving, the decision regarding fitness to drive should not be based solely on the MoCA score (reference).”
45The appellant argued that he was in possession of information that stated that his “doctor has the final say in whether he gets his driver’s licence back”. Although the appellant initially stated that this hearsay information came from the Ministry, it was later determined that the letter or pamphlet he was referring to likely came from the Heart and Stroke Foundation and, on a balance of probabilities, he received this information during his hospitalization in 2020 for his stroke.
46The respondent pointed out that prior to the appellant’s hearing, by law, it is the Registrar who determines if and when the appellant regains his driving privileges. I reminded the appellant that following the hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar.
47The appellant admitted to being nervous for the on-road test, especially driving in a city which is much larger than he is used to and in a city he had never driven in before. He further elaborated that the road test lasted 20-30 minutes, was “useless” and that the evaluators “weren’t fair”. He stated that they were “too strict”, were “nit picking”, did not offer coaching or explanations and were rushing him with their instructions.
48The appellant submitted as evidence a letter dated October 14, 2021 written by a friend, Ms. K. (“Friend K.”) In this letter, Friend K. presented her opinion of the reasons the appellant failed the FDA as follows:
he had never been to that city before;
he had never driven in that city before;
he was nervous; and
there was someone sitting right next to him, observing him.
49In the letter, Friend K. went on to further state, “How would the examiner feel if I put him in a foreign city that he has NEVER driven in and expect him to pass a road test? So, to me the test was TOTALLY unfair”.
50The respondent argued that the rules of the road are consistent throughout Ontario and they do not depend on the environment or location.
51I note that in the FDA report, OT K. wrote that the appellant “is anxious and could not regulate himself” and Mr. W. wrote, “he has anxiety when he drives”.
52Based on the evidence before me, it is clear that the appellant was anxious or nervous during his FDA. However, I place little weight on Friend K.’s opinion that the appellant’s anxiety or nervousness, or his lack of familiarity with the city he was driving in were the only reasons that the appellant did not pass the FDA. Friend K. was not present during either the in-class portion or the on-road portion of the FDA. Moreover, the FDA report summary stated that “training was not offered as an option due to the degree and significance of errors observed on the drive.”
53The appellant expressed his view of not having a FAC in close proximity to where he lives in Northern Ontario, having to go to southern Ontario for this expensive test, that the entire process is “one-sided” and a “money grab”, and he should be able to attend a regular road test where he lives.
54In his Notice of Appeal signed on January 4, 2022, the appellant wrote, “My doctor had given me a pass medical exam. I am appealing to take a road test in the city of Kenora since the doctor cleared me to drive again.”
55As previously stated, the Ministry did not request that the appellant have a MR form completed. In addition, Dr. K. completed the MR form on his first encounter with the appellant less than six months ago and, it appears that the appellant did not disclose to Dr. K. on this encounter that he had a stroke in 2020 and had a documented MoCA score of 13/30 in 2020. Moreover, the appellant testified that on this first visit to Dr. K. he did not tell Dr. K. that he had already failed a FDA, nor did he ever show Dr. K. the written report from his failed FDA.
56The appellant expressed his opinion that he is getting “the run around” from the Ministry. He stated that “earlier” (i.e., at the case conference) the respondent only told him that he needed a letter from his doctor. The appellant stated that he was not told at this time about getting “everything” done (i.e., that he would require another FDA).
57The respondent argued that at the February 17, 2022 case conference, he went over the stepwise approach necessary for the appellant to regain his driver’s licence, with “Part 1” being confirmation that there was improvement in the appellant’s medical condition and “Part 2” being the successful completion of a FDA at a FAC.
58The respondent indicated that the Registrar considered Dr. K.’s April 11, 2022 letter to be sufficient evidence for the completion of Part 1 of the stepwise requirements.
59The 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.
60The evidence before me indicates that the Registrar has consistently told the appellant that in order to regain his driving privilege, they need confirmation of a satisfactory FDA (letters dated June 18, 2020, July 29, 2020, November 30, 2021 and April 19, 2022). Nowhere in these letters does the Registrar indicate that the appellant may take or proceed with only an on-road test at a local, non-rehabilitation driving centre.
61As noted above, although I am not bound by the CCMTA Standards, they may be persuasive. I note that Chapter 6 states 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 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 FDA by an occupational therapist or directly to the licensing authority; and
CI may cause a persistent impairment in driving and that drivers are not able to compensate for this functional impairment.
62I prefer the opinions of OT K. and Mr. W. over that of Dr. K. and the appellant, that the appellant has deficits in functional driving skills, and that these deficits are a result of his CI. I am aware that good cognitive ability is the foundation of competent driving and people with even mild CI should receive comprehensive off- and on-road testing at specialized centres. The appellant had such a comprehensive test at an approved centre of his choice on September 23, 2020. On the FDA report, OT K. wrote that the appellant felt he was back to his functional baseline. The appellant scored below expected norms on the cognitive portion of the in-class FDA, with multiple deficits noted (speed of processing, divided attention and selective attention). He also reportedly made serious errors during the on-road driving portion of the FDA (not predictable, confused intersections, drove on the wrong side of the road). Moreover, the overall recommendation was “deficits in functional driving skills - driving is not recommended”. The appellant did not meet the minimum standard of safe and predictable driving, driving cessation was recommended and licence reinstatement was not recommended.
63I acknowledge, that a repeat MoCA performed on March 21, 2022, some two years after his first MoCA, showed significant improvement in the appellant’s cognitive functions. However, the MoCA score was still below the accepted normal range. Furthermore, I do not know the appellant’s MoCA score at the time of his FDA in September 2020, some six months post-stroke. I acknowledge that it is Dr. K.’s opinion that the “lost points” in the appellant’s 2022 MoCA are likely related to the appellant’s IQ, however there is no evidence before me to indicate what the appellant’s baseline MoCA was prior to his stroke. Moreover, as supported by the CCMTA Standards, OT Q. in her letter to Dr. K., and per my knowledge of the Canadian Medical Association “Determining medical fitness to operate motor vehicles”, the decision regarding fitness to drive should not be based solely on the MoCA score.
64I acknowledge the difficulties (logistical, financial and otherwise) that the appellant has already experienced in taking a FDA at an approved FAC far from where he lives. I also acknowledge that the requirement to take another FDA at an approved FAC will likely be onerous. However, based on a careful consideration of all the evidence before me, including the appellant’s significantly improved MoCA score, I do not find that the appellant’s fitness to drive can be evaluated properly at his local driving centre. I agree with the Registrar, that should the appellant wish to regain his driver’s licence he needs to submit proof of a satisfactory FDA from an approved FAC.
65I acknowledge the burden, financial, recreationally, personally and otherwise, that the lack of a driver’s licence is having on the appellant. I also acknowledge that the appellant feels that this process is unfair, one-sided and a money grab. However, driving 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.
66Should the appellant wish to regain his driver’s licence, I encourage the appellant to complete another FDA. The appellant may choose any approved FAC on the Ministry’s list.
67Based 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.
E. ORDER:
68For 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.
LICENCE APPEAL TRIBUNAL
Dr. Erica Weinberg, Member
Released: May 18, 2022
Footnotes
- Although each are Members of the Licence Appeal Tribunal, none took part in the decision.
- Pursuant 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”.