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:
Charles Burghgraef
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Adjudicators: Dr. Peter Savage, Member
Appearances
For the Appellant: Charles Burghgraef, Self-represented
For the Respondent: Kyle Biel, Agent
Heard by Teleconference: September 19, 2022
REASONS FOR DECISION AND ORDER
A. Overview
1By letter dated January 17, 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:
Does the appellant suffer from a medical condition, namely a cognitive impairment?
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 if the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely.
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 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”) from the consulting physician, Dr. Reynolds dated January 13, 2022 and a letter from Dr. William Wu, a medical resident working with Dr. Bonacci, the appellant’s family doctor.
13In the MCR form Dr. Robertson advised that the appellant suffers from dementia. Dr. Reynolds, a consultant for the Queens University interdisciplinary memory clinic, saw the appellant at the request of the appellant’s family doctor.
14The letter from Dr. Wu dated June 10, 2022 states that the appellant suffers from mild Alzheimer’s disease.
15The appellant testified he did not feel he suffered from a condition that affected his cognitive ability, however he produced no medical evidence to support his position.
16I accept the Registrar’s medical evidence and 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 his ability to drive a vehicle safely?
17The 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.
18The Registrar relies on Chapter 6 of the CCMTA Medical Standards, 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.
19The Registrar submits that even mild-moderate cognitive deficiencies can result in catastrophic results if some drivers with this condition are licenced. Chapter 6 goes on to say that the functional driving test is a method to assess which drivers with cognitive deficits may be eligible for licencing.
20In a letter from the Registrar, dated June 22, 2022, the appellant was advised the Registrar requires a satisfactory functional driving assessment from an approved Functional Assessment Centre.
21The appellant has not undergone a functional driving test and the position of the Registrar is that the suspension cannot be lifted until the functional driving test is completed and shows the appellant is safe to drive even though he has a mild cognitive impairment, as is contemplated by the CCMTA Standards.
22The Registrar notes that Dr. Bonacci, the family doctor, has not endorsed the return of the driving privilege and indeed the appellant testified the Dr. Bonacci has instructed him not to drive until the testing has been completed.
23As stated earlier, the appellant testified that he does not have a cognitive deficit. He does however testify he is on donepezil or Aricept (a medication used to treat dementia of the Alzheimer’s type).
24The appellant argues that his score was higher and the doctors wrote the score down incorrectly. The appellant also points out that the nurse administering the MOCa test (Montreal cognitive assessment test) told him to take his time and then faulted him for being too slow. The appellant pointed out that he was on antibiotics at the time of his first test and that affected the result.
25The appellant testifies he has tried to book an appointment with the Belleville functional driving assessment centre. He states he has called on four occasions and went to their office on one occasion and he has not received a call back or any help in organizing a test. He is continuing to try and have the testing done but finds it very frustrating that the testing centre is not cooperating.
26The appellant testified that he is a safe driver and has driven since he was age 17 and has only had one accident and one speeding ticket. The appellant testifies that his wife and family have advised him that he is a safe driver.
27The appellant points out he is on the board of a volunteer organization that is building a seniors complex and he has a leadership role in this organization. He maintains this fact proves he doesn’t have a cognitive deficit that would affect his ability to drive safely.
28After considering the evidence and arguments of both parties, I 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 consider it appropriate to apply it here. The appellant has not currently completed his functional driving assessment. Until the completion of this assessment, 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
29For 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.
LICENCE APPEAL TRIBUNAL
Released: September 26th, 2022