Date: 2022-10-03

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:

James Theaker

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Erica Weinberg, Member

APPEARANCES:

For the Appellant: James Theaker, Did not appear

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: September 27, 2022

A. Overview:

1James Theaker (“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 May 5, 2022.

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 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 July 13, 2022. At the outset of the hearing on that day, the appellant’s daughter requested an adjournment of the hearing on behalf of the appellant. The appellant’s daughter stated that she could not get off long enough from work that day for the hearing to proceed in its entirety. She asserted that she needed to assist her father with calling into the hearing and to ensure that he heard things clearly at the hearing. I took note of the facts that the appellant’s daughter had contacted the Tribunal on July 12, 2022 to request an adjournment, she planned to call into the hearing during her break at work, the appellant had not previously been granted an adjournment and that in the Case Conference Report and Order, the appellant’s daughter was listed as technology support. In an effort to ensure fairness for the appellant, plus the additional facts that the appellant was planning to proceed with a Functional Driving Assessment prior to the return date of the hearing and the appellant’s daughter needed significant lead time to book off from work, I found that an adjournment beyond 30 days was reasonable in this case. On consent, the hearing was rescheduled for September 27, 2022 at 9:30 a.m. before me and was marked peremptory on the appellant. A Notice of Rescheduled Hearing (“NORH”) was issued on April 14, 2022 with the correct date, time and call-in information.

14At the outset of the hearing on September 27, 2022 neither the appellant nor his daughter called into the teleconference. The Tribunal informed me that they had spoken with the appellant that morning and the appellant was expecting his daughter to join him for the hearing. Further attempts by the Tribunal to reach the appellant during the hearing resulted in a busy signal on his telephone line. The Tribunal then reached out to the appellant’s daughter who called into the hearing. The appellant’s daughter informed me that her father was aware of today’s hearing and that she had told him that she would not be assisting him. The appellant’s daughter then left the teleconference.

15Based on the above, I am satisfied that sufficient notice was provided to the appellant and that he knew about the September 27, 2022 hearing at 9:30 a.m.

16Subsection 7(3) of the Statutory Powers Procedure Act (“SPPA”) permits a tribunal to proceed in the absence of a party so long as it has provided notice of the hearing. Furthermore, the appellant’s NORH included the caution that, “If you do not attend the hearing, the Tribunal may make a decision in your absence and you will not be entitled to any further notice in the proceeding” as set out in subsection 6(5)(d) of the SPPA. I have decided to exercise my discretion to proceed with the hearing in the appellant’s absence.

17At 9:50 a.m. I commenced the hearing and heard the Registrar’s evidence. The teleconference line remained open until the end of the hearing. The appellant did not call into the hearing before its conclusion.

E. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from CI?

18I find, on a balance of probabilities, that the appellant suffers from CI.

19On April 22, 2022, the Ministry of Transportation (“the Ministry”) received an unsolicited Medical Condition Report (“MCR”) from the appellant’s physician, Dr. C. On the MCR, Dr. C. indicated that he was of the opinion that the appellant was suffering from CI due to dementia, which may make it dangerous for the appellant to operate a motor vehicle.

20In response to the MCR, and by letter dated April 25, 2022, the Registrar suspended the appellant’s driver’s licence, effective May 5, 2022, with the reported medical condition of CI. The letter indicated that when the appellant’s condition improved, he should have his treating physician, specialist or nurse practitioner complete a Cognitive Disorder (“CD”) form.

21On June 27, 2022, Dr. C. competed a CD form. On the CD form Dr. C. indicated that the appellant:

• had a primary condition of mild CI/mild dementia;

• required a functional driving assessment (“FDA”); and

• declined a repeat cognitive assessment.

22In the appellant’s Notice of Appeal received on June 7, 2022, the appellant’s daughter wrote that the “testing took place in the doctor’s office”, and “we are sure with the hearing aids a repeat test would make a difference”.

23Based on the above, I find on a balance of probabilities, that the “test” or “testing” being referred to by the appellant or his daughter was a cognitive assessment test.

24On August 29, 2022 the appellant had a Functional Driving Assessment (“FDA”) at an approved Functional Assessment Centre (“FAC”). On the FDA report Ms. O., an occupational therapist (“OT”), referred to in-class tests performed, specifically Trails A, Trails B, Snellgrove Maze Test and MVPT-R. As a licenced and duly qualified physician in the Province of Ontario¹, I am aware that these tests are validated cognitive or visual/perceptual tests. Ms. O. indicated that the appellant either “failed” or performed “below expected norms” on all of these tests.

25After 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?

26The 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.

27As per its letter dated June 28, 2022, the Registrar is of the opinion that in order to determine whether the appellant can safely operate a vehicle, it requires a satisfactory FDA from an approved FAC.

28On the FDA report, both the OT and the driving instructor indicated that the appellant had “deficits in functional driving skills – driving not recommended”, lacked awareness of the driving environment (speed, right of way) and was “unable to compensate for cognitive deficits”. In addition, the appellant was not considered a rehabilitation candidate.

29Furthermore, in the “Additional Comments” section of the FDA report, it is written:

“Deficits in cognitive scores in clinic translated to errors on road which included lack of awareness of the posted speed limit and the speed of the vehicle. The client was observed to drive over the speed limit (73 km/hr, 72 km/hr and 67 km/hr in a 50 km/hr zone). The client failed to yield the right of way when entering a roundabout, slowed his speed to 34 km/hr in a 60 km/hr zone when changing lane and pressed the accelerator and brake simultaneously when entering the highway requiring verbal and physical control by the driving instructor. Deficits in driving skills observed. Driving is not recommended.”

30The 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 FDA 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.

31The 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.

32Although 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 FDA by an OT or directly to the licensing authority;

• FDA 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.

33Based 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 FDA report clearly indicated that the appellant’s deficits in cognitive scores noted in the in-class portion of the FDA translated to errors in the on-road portion of the FDA. Deficits in driving skills were observed, driving was not recommended and rehabilitation was not offered.

34I acknowledge the burden that the lack of a driver’s licence is likely having on the appellant. 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.

35Based 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:

36For 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”.