Licence Appeal Tribunal File Number: 15114/MED

In the matter of an 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 licence pursuant to Section 47(1) of the Act.

Between:

Susan Garfin

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATORS: Dr. Isla McPherson, Member Jeffery Campbell, Vice-Chair

APPEARANCES:

For the Appellant: Susan Garfin, Appellant Noel Gerry, Counsel

For the Registrar: Ian Sookram, Agent

Held by teleconference: October 11, 2023

REASONS FOR DECISION AND ORDER

OVERVIEW

1Susan Garfin (the “Appellant”) appeals the decision of the Registrar of Motor Vehicles (the “Registrar”) to suspend her driver’s licence for medical reasons effective August 4, 2023, under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

2Following the receipt of a Medical Condition Report plus a request for additional medical information and specific testing, the Registrar suspended the Appellant’s driver’s licence based on the reported medical condition of Cognitive Impairment.

3The Registrar has the authority under s.47(1)(g) of the Act to suspend or cancel a driver’s licence for any sufficient reason. Section 14(1)(a) of O. Reg. 340/94 under the Act (the “Regulation”) states 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 safely drive a motor vehicle of the applicable class. Under s. 14(2)(b) of the Regulation, the Minister may require a driver to provide satisfactory evidence that he or she is able to drive safely.

4The Appellant appeals the suspension under s. 50(1) of the Act.

5Pursuant to section 50(2) of the Act, after a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar.

ISSUES

6The issue in this appeal is whether the Appellant suffers from a medical condition that is likely to significantly interfere with her ability to drive a motor vehicle safely.

7To resolve that issue, we will address the following questions:

1. Does the Appellant suffer from a medical condition, namely Cognitive Impairment?

2. If the Appellant does suffer from the above condition, is that condition likely to significantly interfere with her ability to drive a motor vehicle safely?

RESULT

8For the reasons set out below, pursuant to subsection 50(2) of the Act, we confirm the Registrar’s decision to suspend the Appellant’s driver’s licence.

ANALYSIS

The Appellant Suffers from Cognitive Impairment

9The evidence presented at the hearing establishes that the Appellant suffers from a medical condition, namely, cognitive impairment.

10In support of its allegation that the Appellant suffers from cognitive impairment, the Registrar relies on the medical condition report (“MCR”) dated February 2, 2023 in which her treating neurologist, Dr. Morris Freedman, advised that the Appellant suffers from “amnestic MCI (mild cognitive impairment)”. This diagnosis was confirmed by the Appellant’s family physician, Dr. Jennifer Wyman, on a Cognitive Disorder form (“Cognitive Form”) dated March 22, 2023.

11We are satisfied that Dr. Freedman and Dr. Wyman are qualified to diagnose the Appellant with cognitive impairment and that they were in the best position to make that determination.

12The Appellant’s son, Stephen Ladowski (“Mr. Ladowski”), testified that “Nobody's arguing my mother has MCI. What is very clear is that my mother has driven perfectly with MCI".

13Based on the evidence, we conclude that the Appellant suffers from cognitive impairment.

The Appellant’s cognitive impairment is likely to interfere with her ability to drive a motor vehicle safely

14We find that Appellant’s condition of cognitive impairment is likely to affect her ability to drive a motor vehicle safely.

15The evidence and testimony provided in the hearing establish that in 2020, the Appellant and her daughter, neuropsychologist, Dr. Ricki Ladowski-Brooks (“Dr. Brooks”) attended at the office of the Appellant’s family physician, Dr. Jennifer Wyman, out of concern for the Appellant’s memory. Dr. Wyman conducted a Montreal Cognitive Assessment (MoCA) test in which the Appellant scored 26 out of 30. Dr. Wyman then referred the Appellant to neurologist, Dr. Morris Freedman (“Dr. Freedman”).

16In July 2020, Dr. Morris Freedman diagnosed the Appellant with mild cognitive impairment.

17On August 8, 2022, the Appellant and Dr. Brooks attended a videoconference appointment with Dr. Freedman. As a result of that appointment, in a letter to Dr. Wyman dated August 8, 2022, Dr. Freedman noted that:

“[the Appellant] is having difficulty with word finding. She is independent in activities of daily living…Her daughter raised the question of having a driving assessment. She raised this question, even though she said there were no concerns. I will send Susan Garfin a list of centres for a driving assessment.”

18Also, following that meeting, Dr. Freedman provided the Appellant and her daughter with a list of driving centres in order for her to attend a Functional Driving Assessment (“FDA”).

19The Appellant's son testified that his sister, Dr. Brooks, made an unsolicited phone call to Dr. Freedman's nurse on February 1, 2023 indicating that her mother had not taken the Functional Driving Assessment and that the appointment had been canceled three times.

20On February 2, 2023, Dr. Freedman submitted a Medical Condition Report ("MCR") to the Ministry of Transportation. In that MCR, Dr. Freedman noted, "[the Appellant] has MCI, & not dementia”.

21As a result of the MCR, the Ministry of Transportation (the “Ministry”) sent a letter to the Appellant, dated February 6, 2023, requiring the Appellant to have a physician, specialist or nurse practitioner complete and submit a Cognitive Form.

22Dr. Wyman subsequently completed and submitted the Cognitive Form on March 22, 2023. On the form, Dr. Wyman indicated that the Appellant’s primary condition is that of Mild Cognitive Impairment/Mild Dementia and that the Appellant requires a functional driving assessment. Dr. Wyman also advised that she did not conduct any tests. However, in her testimony she did state that, in the meeting of March 21, 2023, she advised the Appellant and Mr. Ladowski that she would not contradict Dr. Freedman’s recommendations and advised that they schedule the functional driving assessment.

23Upon receipt of the Cognitive Form, the Ministry advised the Appellant by letter dated March 27, 2023 that they require an FDA to be conducted. They enclosed a list of Approved Functional Assessment Centres in Ontario. On June 8, 2023, the Ministry sent the Appellant a final reminder, by letter, that a satisfactory driving assessment be submitted. After receiving no response, the Ministry then notified, by letter to the Appellant dated July 25, 2023, that her driver’s licence had been suspended due to the medical condition of cognitive impairment.

24In support of their requirements, the Registrar relies upon the Canadian Council of Motor Transport Administrators (“CCMTA”) chapter 6.6.1 in which drivers with cognitive impairment or dementia are eligible for a licence if, where required, a functional driving assessment shows condition does not affect ability to drive.

25Section 14(2)(a) of O. Reg. 340/94 allows the Registrar to consider the 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.

26In support of the Appellant, Ken Davies, her partner of two years testified that the Appellant is an extremely careful driver and that he has no concerns with her driving. He also stated that she is very independent.

27Also in support of the Appellant, her son, Stephen Ladowski testified that he did not have any concerns with his mother’s driving. He advised that his mother passed the mandatory senior’s driving test on February 12, 2023.

28We note that the testimony of the Appellant's son and partner did not include any medical evidence regarding the Appellant's ability to drive. The evidence was anecdotal and does not outweigh the medical evidence put forward by the Registrar or the testimony of Drs. Freedman and Wyman.

29The Appellant did not testify on her own behalf. However, her counsel submits that the suspension of her driver’s licence is unjustified as the requirement to attend an FDA was unwarranted. The Appellant’s counsel submits that both the MCR of Dr. Freedman and the Cognitive Form of Dr. Wyman had no medical basis for their requirement to be completed and submitted. Given the alleged lack of legitimacy of the forms, there is “no viable medical opinion” and “no viable medical evidence” that the FDA is necessary or that the Appellant’s MCI is likely to interfere with her ability to drive a vehicle safely.

30With respect to the MCR, the Appellant’s counsel suggests that Dr. Freedman was mistaken to cite in that form the reference that the Appellant had canceled the FDA three times after their meeting on August 8, 2022. He submits that Dr. Brooks was not referring to an FDA in meeting of August 8th, but rather was referring to a senior’s driving test. The Appellant’s counsel also submits that it was not the Appellant who cancelled the driving tests, but rather, Dr. Brooks.

31We do not accept this argument. Dr. Brooks was not called to present oral evidence in order to corroborate either of these claims. Also, Dr. Brooks could have advised Dr. Freedman’s office during the call of February 1, 2023 that her inquiry of a driver assessment (on August 8, 2022) was for a senior’s test and not an FDA. There is no evidence that she did advise of this.

32The Appellant’s counsel also submits that the Appellant drove safely for two years with MCI with no incidents, and that there were no changes in her diagnosis in those two years that would warrant the requirement of an FDA. However, we find that the Appellant's doctors are best qualified to assess and objectively report on the Appellant's medical condition. These physicians, one of whom is a specialist in the field of neurology and cognitive impairment, have known and followed the Appellant for the 3 years since her diagnosis of MCI. As such, we prefer the evidence of Drs. Freedman and Wyman over that of the Appellant, Mr. Davies and Mr. Ladowski.

33We consider Dr. Freedman’s testimony and medical judgement to be have considerable credibility in this matter. Dr. Freedman is the head of the Division of Neurology at Baycrest Health Sciences Centre, the Medical Director for Cognitive & Behaviour at Baycrest and Medical Director, Pamela & Paul Austin Centre for Neurology and Behavioural Support.

34Dr. Freedman testified that, in his ongoing assessing of his MCI patients, he considers a combination of factors in determining their level of function, including input from family members, in order to establish as to whether to submit an MCR. In this case, due his own observations that the Appellant was declining, and due to the input of Dr. Brooks, it was his decision that an FDA was required. We find that this is a reasonable explanation as to his determination of the requirement for an FDA and, later, the submission and contents of the MCR.

35We note that the Appellant has failed to produce any medical evidence contrary to that of Dr. Freedman and Dr. Wyman. It appears that the Appellant’s position depends upon the unsupported questioning of the judgment of her neurologist and of her family physician, and on the assumption that no FDA should have been required.

CONCLUSION

36Dr. Wyman has been the Appellant’s family physician for close to twenty years and Dr. Freedman has served as her neurologist for over three. We find no cause to reasonably question their judgment with respect to the Appellant’s requirement to undergo an FDA. Their requirement of the FDA is a determination arising from their treatment of the Appellant. It is also congruent with CCMTA Chapter 6.6.1. As such, and, as the Appellant has failed to submit to that requirement, we find that the respondent has met their onus to prove on a balance of probabilities that the Appellant’s medical condition of MCI is likely to interfere with her ability to drive a vehicle safely.

ORDER

37For the reasons set out above, pursuant to subsection 50(2) of the Act, we confirm the Registrar’s decision to suspend the Appellant’s Class G Licence.

LICENCE APPEAL TRIBUNAL

___________________________

Dr. Isla McPherson, Member

Jeffery Campbell, Vice Chair