McCutcheon v. Registrar of Motor Vehicles, 2023 CanLII 110949

Licence Appeal Tribunal File Number: 15170/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:

Karen McCutcheon

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

PANEL:

Peter Savage, M.D., Member Avril A. Farlam, Vice-Chair

APPEARANCES:

For the Appellant:

Karen McCutcheon, Self-represented

For the Respondent:

Stephen Grootenboer, Representative

Heard by Teleconference: October 24, 2023

OVERVIEW

1Karen McCutcheon (the "appellant") appealed the decision of the Registrar dated July 19, 2021 to suspend her Class G licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act") after the Registrar received a report dated July 13, 2021 from Dr. Priscilla Yung, an emergency room physician, that the appellant suffers from cognitive impairment.

2Section 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.

3The Registrar takes the position that the appellant suffers from a medical condition, cognitive impairment which is likely to significantly interfere with the appellant's ability to drive safely.

4The appellant appeals the suspension under s. 50(1) of the Act. She denies that she has a medical condition, namely cognitive impairment, and denies that this interferes with her ability to drive safely.

5Having considered all the evidence, and for the reasons which follow, we confirm the Registrar's decision to suspend the appellant's driver's licence.

ISSUES

6The issue in dispute is whether the appellant suffers from a medical condition namely cognitive impairment, 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:

i. Does the appellant suffer from cognitive impairment?

ii. If so, is this likely to significantly interfere with her ability to drive a motor vehicle safely?

ANALYSIS

The appellant has cognitive impairment

8The evidence presented at the hearing supports the Registrar's allegation that the appellant suffers from a medical condition, namely cognitive impairment.

9The Registrar's position is supported by Dr. Yung's July 13, 2021 report in which Dr. Yung reports the appellant's MoCA score of 15/30. This report was sent to the Ministry of Transportation by Dr. Yung as required under s. 203 of the Act.

10The Registrar's position is also supported by the December 2, 2021 report of Dr. Trevail, the appellant's family physician which diagnoses mild cognitive impairment/mild dementia. Dr. Trevail's report states that the appellant's MoCA score is 25/30 but indicates she has failed the Trails B test twice. In this report Dr. Trevail indicates that the appellant requires a functional driving assessment and has been referred for a road assessment.

11After 2021, Dr. Trevail wrote three reports in which he resiles from his December 2021 diagnosis of mild cognitive impairment/mild dementia as follows:

a. In his August 1, 2022 Dr. Trevail opined that "I do not believe she has a diagnosis of dementia. Her most recent MoCA is 25/30 and she does not have any functional impairment I can identify. The diagnosis was questioned during admission for an acute illness to hospital which resulted in her license being revoked. She has asked I write this letter to clarify her diagnosis and note that she does not have dementia". Dr. Trevail also noted that the appellant has had an on-road test through DriveAble in the interim, which she did not successfully complete.

b. In his June 3, 2023 cognitive disorder report Dr. Trevail confirmed that the appellant has "no impairment" although he acknowledges that the appellant has failed a functional driving assessment ("FDA") in the last six months and lessons were recommended. Dr. Trevail commented in this report that the appellant was "misdiagnosed cognitive impairment/dementia on hospitalization. Report MoCA 25/30 but failed Trails B. On road test attached lessons were recommended initially but not completed. See Section #3 of latest driving assessment."

c. In his July 11, 2023 Dr. Trevail wrote that "Karen does not have a diagnosis of dementia".

12We do not give the post 2021 reports by Trevail as much weight as his December 2, 2021 report and the report of Dr. Yung for the following reasons.

13Firstly, Dr. Trevail does not offer any explanation in these three post 2021 reports as to why he has resiled from his original diagnosis or why, since the original diagnosis made by Dr. Yung and by himself, the appellant has been unable to successfully pass two FDAs, and despite attending a total of six driving lessons at FDA facilities, no improvement has been shown in her functional driving abilities and the lessons had to be ended for safety reasons.

14Secondly, given that an FDA is the test for functional ability to drive safely and Dr. Trevail himself recommended an FDA in his December 2021 report, Dr. Trevail has failed to fully consider the unsuccessful result, and failed to express any opinion on whether the appellant has the ability to drive.

15Thirdly, we note that the appellant's best MoCA score indicated is 25/30 which is in a range that indicates cognitive impairment. According to the medical reports before us, the appellant has never passed a Trails B test which is also tends to indicate some cognitive impairment.

16We prefer the July 2021 report of Dr. Yung and the December 2021 report of Dr. Trevail over Dr. Trevail's post-2021 reports.

17The appellant denies that she has cognitive impairment. In her Notice of Appeal and in her testimony at the hearing the appellant indicated that Dr. Charles Gatfield is responsible for her misdiagnosis of cognitive impairment. This suggestion is not supported by the medical evidence before us. Dr. Gatfield did not author any of the medical reports before us.

18The appellant's sister Jacqueline Steele, an 85 year old who testified that she is not medically trained, does not drive, has not seen the appellant drive for several years and has not seen any of the medical information filed in this appeal, testified that the appellant does not have dementia and is a very good driver. We attribute no weight to the testimony of Ms. Steele given that she was unaware of the medicals filed in this appeal and presented only anecdotal oral testimony.

19We prefer the medical reports of Dr. Yung and Dr. Trevail's December 2021 report over that of the appellant and her sister Ms. Steele. Cognitive impairment is a broad term, encompasses a range from mild to more severe and can result in a person having difficulty in one area and not in others. Based on the MoCA scores in the medical reports, the fact that the appellant failed some Trails B tests, and based on the cognitive assessments of the medically trained assessors who administered the two FDA and the six driving lessons to the appellant, we find that the appellant more likely than not has cognitive impairment.

20The testimony of the appellant and Ms. Steele, and the post 2021 reports of Dr. Trevail, given their lack of explanation and detail, do not persuade us that that Drs. Yung and Trevail in December 2021 were in error in their assessments and diagnosis.

21We find that the Registrar has established on a balance of probabilities that the appellant has cognitive impairment.

The appellant's medical condition is likely to significantly interfere with her ability to drive safely

22We are satisfied that the appellant's medical condition is likely to significantly interfere with her ability to drive safely. There is ample evidence that the appellant does not have the functional abilities necessary to drive a motor vehicle safely based on the two FDA's taken by the appellant and a total of six driving lessons.

23The appellant took her first FDA on March 8, 2022 at Neurotrauma Rehab, part of St. Joseph's Health Care in London ("Rehab"). Hanne Roelen, a registered Ontario occupational therapist ("OT") made a report dated March 10, 2022. This FDA included a review of medical reports, interview with the appellant, an overview of testing provided to the appellant, and in clinic skills testing. The appellant did not successfully complete this first FDA. Ms. Roelen's report indicates that the appellant exhibited deficits in functional driving skills. Ms. Roelen identified the appellant as a rehabilitation candidate and lessons conducted with Rehab were recommended. Ms. Roelen commented in the report that training was recommended to see if Rehab can teach the appellant ways to compensate for her issues.

24The appellant completed two driving lessons in May 2022. The May 18, 2022 progress and termination report from Rehab shows that although it was recommended that the appellant take four or more driving lessons, she took two lessons. Ms. Roelen reported that cognitive issues negatively affected the driving lessons, including issues with memory, attention, slowed processing speed and difficulty with judgment/decision making, decreased insight and awareness and multi-tasking. It was also reported that the appellant did not demonstrate carry over from session to session due to memory and attention impairments. "Despite frequent repetition of instructions and education, she continued to make the same errors on route." During the second lesson the driving instructor had to use her brake on three occasions and take the steering wheel. In the driving evaluation results dated May 18, 2022, Ms. Roelen opined that the functional driving performance is significantly affected by her medical condition and recommended that the appellant's driver's licence remain suspended.

25The appellant took her second FDA on November 30, 2022 at CBI Health Centre in London ("CBI"). Therese Oldfield, an OT, reported that the appellant's MoCA score was 22+1/30 which is below normal, normal being 26 or greater up to 30. The appellant did not successfully complete the FDA. Ms. Oldfield reports deficits in functional driving skills but identified the appellant as a rehabilitation candidate and recommended three to five lessons.

26The April 13, 2023 progress and termination report from CBI shows that although it was recommended that the appellant take five driving lessons, she took four lessons. Ms. Oldfield reported that during the initial assessment, reduced awareness of speed and lane positioning and hesitation at intersections was observed. After four lessons, the appellant continued to require guidance from driving instructor related to errors. Ms. Oldfield also reported that in clinic cognitive testing revealed deficits with executive function, processing speed and attention and that the appellant was not able to compensate for these cognitive deficits on road. The lessons were terminated because both physical and verbal intervention was required by the driving instructor. The instructor had to apply the brake to stop at amber light and verbal intervention was required to remind the appellant to check the speed of the vehicle and adjust speed to the posted speed limit.

27Although the appellant testified that she believes she was not assessed fairly by in the FDA's and that the lessons were not good and she did not learn from them, the evidence regarding the FDA's does not support this. The FDA assessment process involved the input and was reported upon both times by OT's who are trained to assess the functional abilities of potential drivers. Both OT's gave reasons for their recommendations and conclusions and we accept these reports as credible and convincing evidence as to the abilities of the appellant to drive safely. That the appellant did not learn from the lessons is consistent with the findings on both FDA's. Although the appellant was recommended for lessons following both FDA's, the reports from two OT's show that the appellant was unable to learn from the instruction given and, as a result, her functional abilities to drive safely did not significantly improve after lessons.

28The Registrar relies on the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the "CCMTA Standards"), particularly s. 6.6.1 in support of its submission that the licence suspension should be confirmed by the Tribunal. Section 14(2)(a) of the Regulation allows the Registrar to consider the CCMTA Standards when determining whether the requirements of s. 14(1) are met. The Tribunal may take the CCMTA Standards into consideration, although they are not binding on the Tribunal.

29Section 6.6.1 of the CCMTA Standards provides that a driver who has been diagnosed with cognitive impairment may be considered eligible for a driver's licence if, where required, an FDA shows the condition does not affect ability to drive.

30In this particular case, although we are not bound by the CCMTA Standards, we find the requirement for an FDA to be reasonable and consistent with the report of Dr. Trevail in December 2021 when he stated that the appellant requires an FDA. The CCMTA Standards confirm that even mild cognitive impairment can affect ability to drive a motor vehicle safely including the functions necessary for driving including reaction times, judgment and insight, alertness, and motor co-ordination.

31Dr. Trevail, the appellant's family physician has not written that he is supportive of the appellant's ability to drive safely absent an FDA.

32Although the appellant and Ms. Steele both testified that the appellant has the cognitive ability to safely drive a motor vehicle, the failed FDA's indicate otherwise at this time.

33The Registrar's submission is supported by Dr. Trevail's December 2021 report, as well as the CCMTA Standards and the failed FDA's and unsuccessful driving lessons. We agree with the Registrar's submissions.

34We are satisfied that the appellant's medical condition is likely to significantly interfere with her ability to drive safely.

Conclusion(s)

35We find that the appellant suffers from a medical condition, namely cognitive impairment, that is likely to significantly interfere with her ability to drive a motor vehicle safely.

ORDER

36For the reasons set out above, pursuant to subsection 50(2) of the Act, we confirm the Registrar's decision to suspend the appellant's driver's licence.