Date: 2023-02-21

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 license under subsection 47(1) of the Act.

Between:

Loon Wai Wong

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Peter Savage, Member

APPEARANCES

For the Appellant: Loon Wai Wong, Self-represented

Ann Wong, Daughter and Support Person of the Appellant

For the Respondent: Stephen Grootenboer, Agent

Heard by Teleconference: February 7, 2023

REASONS FOR DECISION AND ORDER

A. Overview

1On September 9, 2021, 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.

2The Registrar alleges that the appellant suffers from a cognitive impairment which requires that his licence be suspended. The appellant disagrees with the Registrar’s decision and has appealed that decision to the Licence Appeal Tribunal (The Tribunal).

3Having 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

4The 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.

5To resolve that issue, I will address the following questions:

1. Does the appellant suffer from a medical condition, namely a cognitive impairment?

2. 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

6The Registrar has the authority under s. 47(1)(g) of the HTA to suspend or cancel a driver’s licence on the ground that the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely.

7Section 14(1)(a) of O. Reg. 340/94 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?

12The appellant was diagnosed with a cognitive deficiency by three health care professionals. These were:

a. Sydney Stewart, an occupational therapist, in her Medical Condition Reports (“MCRs”) of September 2, 2021 and May 2, 2022. Ms. Stewart reported that the appellant suffers from cognitive impairment;

b. Dr. Nelli, a neurologist, in their Cognitive Disorder form (“CD form”) of June 14, 2022 Dr. Nelli diagnoses mild cognitive deficit; and,

c. Tamara Stone, an occupational therapist, in her Functional Driving Report (“FDR”). Ms. Stone reported cognitive impairment and diminished insight were observed.

13The appellant disagrees with the diagnosis. In his opinion he feels well and has improved greatly since his bout of encephalitis in 2021.

14The appellant pointed to Dr. Majeed’s letter of January 20, 2023 which does not make a diagnosis but notes the appellant has made functional improvement in his cognition.

15The appellant’s opinion is not supported in the medical reports and I am satisfied that the appellant suffers from cognitive impairment.

b. Is the appellant’s medical condition of cognitive impairment likely to significantly interfere with his ability to drive a vehicle safely?

16The 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.

17The Registrar relies on the CCMTA Standards, chapter 6, which describes cognitive impairment and dementia and the dangers this condition causes in drivers. The Registrar relies on chapter 6.6.1 which recommends functional driving assessments to determine whether the condition affects ability to drive.

18The Registrar submits that, as set out in the CCMTA Standards, chapter 6, even mild-moderate cognitive deficiencies can lead to a catastrophic result in some drivers.

19Based on this, the Registrar required the appellant to undergo a functional driving test as a condition of licence reinstatement. I agree that the Registrar’s request was a reasonable one. The request for the test was backed up by the CCMTA Standards and is consistent with the recommendations of Ms. Stewart and Dr. Nelli.

20The appellant underwent a functional driving assessment with Ms. Stone at the Ottawa Hospital Rehabilitation Centre on September 13, 2022. The Rehabilitation Centre then issued the functional driving report (FDR), which confirmed a diagnosis of cognitive impairment and reported deficits in the appellant’s cognition that made an on-road assessment potentially dangerous. The FDR recommended that the appellant’s licence remained suspended.

21The FDR noted, among other things:

i. reduced insight and awareness of skill deficits;

ii. severe difficulty with divided attention as well as difficulty with focused attention;

iii. insufficient planning skills;

iv. not cognitively fit to drive;

v. poor knowledge of the rules of the road;

vi. poor knowledge of road sign recognition;

vii. impaired executive functions, processing speed, and planning; and

viii. risks too high to proceed to road test;

22All of these observations support the Registrar’s position that the appellant’s cognitive impairment makes the appellant unsafe to drive.

23The appellant disagreed with the findings of the functional driving test. He testified that he has had no accidents and his record shows no infractions. The appellant testified that he is a safe driver and points to his clean driving record introduced by the Registrar. The appellant also pointed out that Dr. Majeed’s letter confirmed his position that his cognitive function was improving although the letter did not dispute the diagnosis of cognitive impairment.

24The appellant testified that it was his opinion that the test was unfair, and that this lack of fairness was borne out by the unfavourable results of the driving assessment. The appellant noted that the functional driving assessment was carried out in English, which is his second language. He testified his daughter was not allowed to accompany him and help him understand the questions. He felt the test was too long and very confusing. While I heard the appellants arguments and I understand his concerns about the test, I am not satisfied that its results are inaccurate.

25I 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 Standards, chapter 6.6.1 is reasonable and relevant to the appellant, and I apply chapter 6.6.1 to this case. The Registrar’s concerns are well supported by the results of the functional driving assessment.

26While I accept that the appellant has made improvement in his cognitive function, the evidence presented at the hearing demonstrates that there is still a cognitive impairment that is likely to significantly interfere with his ability to drive safely. I find that reinstating the appellant’s Class G licence at this time would present a significant risk to the safety of the appellant, his potential passengers, and others using the roadways.

E. Order

27For 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 License.