Tribunals Ontario Licence Appeal Tribunal
Tribunaux décisionnels Ontario Tribunal d'appel en matière de permis
Licence Appeal Tribunal File Number: 14537/MED
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:
Gerhardt Gissing Appellant
and
Registrar of Motor Vehicles Respondent
DECISION AND ORDER
Panel: Dimitri Louvish, M.D., Member Avril A. Farlam, Vice-Chair
Appearances:
For the Appellant: Robert Gissing, Appellant’s son and Gerhardt Gissing Self-represented
For the Respondent: Ian Sookram, Agent
Heard by teleconference: April 14, 2023
DECISION AND ORDER
BACKGROUND
1Gerhardt Gissing (the “appellant”) appeals the suspension of his driver’s licence by the Registrar of Motor Vehicles (the “Registrar”) effective December 18, 2022.
2The appellant’s family physician Dr. Pfelfer reported to the Registrar of Motor Vehicles (the “Registrar”) on December 8, 2022 that the appellant, following testing, had been diagnosed with “mild cognitive impairment/mild dementia” and recommended road testing to assess safety of driving. Pursuant to s. 203(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), physicians are required to report to the Registrar any person 16 years of age or older who has or appears to have a prescribed medical condition, functional impairment or visual impairment that may make it dangerous for the person to drive.
3The Registrar suspended the appellant’s driver’s licence under s. 47(1) of the HTA due to the appellant’s cognitive impairment but allowed a temporary driver’s licence for the purpose of the appellant taking a functional driving assessment on March 31, 2023.
ISSUE
4The issue in this appeal is whether the appellant has a medical condition, specifically cognitive impairment, likely to significantly interfere with his ability to drive a motor vehicle safely. In order to answer that question, we will address the following issues:
(a) Does the appellant have a medical condition, that is, cognitive impairment?
(b) Is the appellant’s medical condition, specifically cognitive impairment, if any, likely to significantly interfere with his ability to drive safely?
RESULT
5For the reasons that follow, we find that the appellant has a medical condition, cognitive impairment, that is likely to interfere with his ability to drive safely. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.
LAW
6The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”
7One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA states:
(1) An applicant for or a holder of a driver’s licence must not,
(a) 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 14(2)(a) of the Regulation allows the Minister of Transportation to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“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.
9Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.
10The Registrar has the burden of establishing the ground for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.
EVIDENCE AND ANALYSIS
(a) Does the appellant have cognitive impairment?
11As set out below, we find that the appellant has cognitive impairment based on the evidence before us.
12The Registrar filed the December 8, 2022 medical condition report of Dr. Pfelfer, the appellant’s family physician, which indicates that the appellant has been tested and diagnosed with “mild cognitive impairment/mild dementia”. Dr. Pfelfer recommended a functional driving assessment to assess safety of driving.
13Although the appellant was present at the hearing, took an oath in which he promised to tell the truth, and was advised that he could give testimony, the appellant did not testify. However, the appellant’s son Robert Gissing submitted that Dr. Pfelfer did not directly diagnose the appellant with cognitive impairment, that the diagnosis made is of “mild” cognitive impairment, and, in any event, that he and the appellant do not accept Dr. Pfelfer’s diagnosis as set out in her medical report.
14The Registrar submitted that the diagnosis of cognitive impairment is clear in Dr. Pfelfer’s report.
15We find, based on the medical report filed by the Registrar from Dr. Pfelfer, that the appellant has cognitive impairment. The appellant submitted no medical evidence to the contrary. The submissions made by the appellant to the contrary are not evidence and are unsupported by any evidence.
(b) Is the appellant’s cognitive impairment likely to significantly interfere with his ability to drive safely?
16Based on the functional driving assessment described below, we find that the appellant does not possess the functional abilities necessary for driving and we find on a balance of probabilities, based on the totality of the evidence, that the appellant’s medical condition, namely cognitive impairment, is likely to significantly interfere with his ability to drive safely.
17The appellant underwent a driving assessment on March 31, 2023, after which the assessors completed a written Functional Driving Assessment – Medical – (the “Assessment”) which was filed in evidence by the Registrar. The Assessment indicated that prior to the road test portion of the assessment, the appellant was interviewed to obtain both medical and driving history, was given an overview of testing and that the in-clinic portion of the evaluation was conducted using screening tools appropriate to the appellant’s medical condition, education and language spoken. The Assessment also indicates that the appellant’s son attended and observed the assessment.
18The recommendation in the Assessment is that due to deficits in the appellant’s functional driving skills “driving not recommended”. The Assessment reports skill deficits not functional for driving including no environmental awareness, poor observation skills, no insight and therefore no attempt for compensatory strategies, and “extreme safety risk”. The Assessment reports that training is not recommended as no insight or awareness.
19The findings in the Assessment clearly establish that the appellant’s cognitive impairment likely significantly interferes with his ability to drive safety. Some of the findings are that the appellant “demonstrated profound cognitive impairment during the evaluation” and “during the on-road portion of the evaluation significant safety concerns were realized”. The Assessment states that the on-road portion of the evaluation was discontinued due to “extreme safety concerns.”
20The appellant brought forward no evidence to support his submission that he is able to drive safety.
21Instead, the appellant made submissions, in writing and orally at the hearing, outlining concerns about the methodology employed in the Assessment. These submissions are unpersuasive and unsupported by any evidence. It appears from the records filed that the appellant was given a list of many driving assessors and chose the one that did the Assessment. Although the appellant submitted that the Assessment is not truly indicative of his driving abilities, there is no evidence that the appellant completed another Assessment and obtained a different result or that there is any medical or other support for his continuing to drive. Although the appellant submitted that he has had no accidents or tickets in his long driving history, the appellant did not support this with evidence, and even if he had done so, the appellant’s driving history is not in issue in this appeal. This appeal involves the recent diagnosis of cognitive impairment and whether this medical condition is likely to significantly interfere with his ability to drive safety. The Assessment clearly establishes that it does.
22There is no evidence before us that Dr. Pfelfer supports the appellant’s submission that he is able to drive safely. To the contrary, Dr. Pfelfer recommended that an assessment of the appellant’s driving skills be made.
23The Registrar relies on the guidelines contained in the CCMTA Standards with respect to cognitive impairment including dementia (chapter 6) and particularly Chapter 6.6.1 which provides individuals with cognitive impairment or dementia are eligible for any class licence if complete medical assessment indicates cognitive functions necessary for driving are not impaired, or where required, functional driving assessment shows condition does not affect ability to drive. We exercise our discretion to take the CCTMA Standards into consideration.
24Although the CCMTA Standards are not binding on the Tribunal, we are persuaded in this case to apply them because the considerations set out in Chapter 6 are important to ensure that drivers do not present a safety risk to themselves or others while driving.
25The appellant would not be eligible for a licence at this time based on this standard. No physician has opined that the appellant’s cognitive functions necessary for driving are not impaired. The appellant failed the functional driving assessment on March 31, 2023. The report from the functional driving assessment recommends that the appellant should not be driving. There was no medical information supporting reinstatement of appellant’s driving licence or tending to contradict the medical evidence filed by the Registrar.
26We appreciate that the loss of a driver’s licence can have significant consequences for the individual affected. While we understand the appellant’s concerns about the practical challenges that result from a licence suspension, we must apply the provisions of the HTA and regulations, keeping in mind the objective of ensuring public road safety.
ORDER:
27For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the appellant’s driver’s licence is confirmed.
Dimitri Louvish, M.D., Member
Avril A. Farlam, Vice-Chair
Released: April 26, 2023