Licence Appeal Tribunal File Number: 14577 MED

In the matter of an appeal from a decision of the Registrar of Motor Vehicles to suspend a licence under Section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8.

Between:

George Schwendemann

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

PANEL:

Dr. Constantine Petrou Rupinder Hans

APPEARANCES:

For the Appellant:

George Schwendemann, Appellant

For the Respondent:

Stephen Grootenboer, Representative

Heard by Teleconference: March 31, 2023

OVERVIEW

1George Schwendemann (the “appellant”) appeals the decision of the Registrar of Motor Vehicles (the “Registrar” or “respondent”) to suspend his Class G driver’s licence for the medical condition of cognitive impairment resulting from a cerebrovascular accident (stroke) under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), and for diplopia (a visual condition) under s. 32(5)(b)(ii) of the Act.

2The appellant appeals the suspension and asks the Tribunal to reinstate his driver’s licence.

3Having considered all the evidence and for the reasons that follow, we confirm the decision of the Registrar.

PRELIMINARY ISSUE

4Both parties agree that the Tribunal has jurisdiction to hear appeals from suspension imposed under s. 47(1) of the Act.

5The respondent raised a preliminary jurisdictional argument. It submitted that while the Tribunal has jurisdiction to consider an appeal of a suspension under s. 47(1) of the Act, it does not have jurisdiction to consider an appeal of a suspension under s. 32(5)(b)(ii) of the Act. The suspension under s. 32(5)(b)(ii) was the result of the appellant failing to meet the mandatory vision standards found in O. Reg. 340/94 (the “Regulation”), subsection 18(2).

6The appellant put forth no argument and submitted that he did not understand the difference between the two suspensions.

7We agree with the respondent that the Tribunal does not have jurisdiction to consider an appeal of action taken under s. 32(5)(b)(ii) of the Act. At the hearing, we communicated our finding on the issue and indicated reasons would follow. These are our reasons.

8Section 50(1) of the Act allows an appeal by a person aggrieved by a decision of the Registrar under s. 47 or a decision made by the Minister under s. 32(5) “for which there is a right of appeal pursuant to a regulation.”

9Section 25.1 of the Regulation does in fact prescribe a right of appeal. However, it prescribes a right of appeal only for decisions made by the Minister under s. 32(5)(b)(i) of the Act. Notably, s. 32(5)(b)(ii) is absent and we conclude that this was a deliberate choice by the Legislature. Being a statutory tribunal whose jurisdiction must come from statute, we find that the Tribunal does not have jurisdiction over a decision made under s. 32(5)(b)(ii) of the Act.

10As noted, we communicated our finding on this issue to the parties at the hearing. The appellant was reassured by the Registrar’s submission that reassessment could occur when and if his vision improves to the Ministry’s standards. The appellant accepted the decision that the Tribunal did not have jurisdiction on the suspension related to his visual deficiency and elected to proceed with the hearing with regards to his suspension related to the cognitive impairment, under s. 47(1) of the Act.

ISSUES

11The 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.

12To resolve that issue, we will address the following questions:

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

ii. If the appellant does suffer from a cognitive impairment is this likely to significantly interfere with his ability to drive a motor vehicle safely?

RESULT

13We find the appellant does suffer from a cognitive impairment and that it is likely to significantly interfere with his ability to drive a motor vehicle safely. As previously noted, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

The Law

14The Registrar has the authority under s.47(1)(g) of the Act to suspend or cancel a driver’s licence. One sufficient reason to suspend a driver’s licence under s.47(1)(g) of the Act is if the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely.

15Section 14(1)(a) of O. Reg. 340/94 enacted under the Act 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.”

16Section 203(1) of the Act 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.

17Section 14(2)(a) of O. Reg. 340/94 allows the Registrar 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. The CCMTA Standards are not binding on the Registrar or on this Tribunal.

18The 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.

19Pursuant 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.

Does the appellant suffer from a cognitive impairment?

20The evidence satisfies us that the appellant suffers from a cognitive impairment resulting from a cerebrovascular accident (stroke). We find that the medical evidence presented at the hearing supports the conclusion that the appellant suffers from a cognitive impairment.

21An unsolicited Medical Condition Report (“MCR”) dated April 20, 2021, completed by Dr. Phillip Smith, the appellant’s treating physician, states that the appellant suffered a cerebrovascular accident (stroke). The appellant acknowledges that he had a cerebrovascular accident (stroke).

22The appellant’s family doctor Dr. Hillary Lawson also completed a Medical Condition Report, dated May 9, 2022, noting that the appellant has or appears to have a disorder resulting in cognitive impairment as a result of a stroke and brain injury. The report states that the cerebrovascular accident resulted in physical impairment and cognitive impairment and she refers to the functional driving assessment, which was conducted in April 2022, and notes that it details several impairments.

23Dr. Lawson further completed a Cerebrovascular Diseases, Traumatic Brain Injury, Tumour or Other Neurological Diseases form, on or about June 6, 2022, noting that the appellant had a cognitive impairment or limitation and had failed a functional driving assessment.

24Finally, the most recent medical evidence provided to the Tribunal was from Dr. Lawson, who in a letter dated June 21, 2022, stated that the appellant continues to have cognitive impairment with no significant improvement and his condition is not expected to change in the future.

25At the hearing, we found the appellant to be well-spoken, articulate and aware of the public safety aspects of the suspension. However, based on the opinions of his own family doctor, the stroke has left the appellant with some cognitive impairments.

26Given the evidence before us, we find on a balance of probabilities that the appellant suffers from a cognitive impairment.

Is the appellant’s cognitive impairment likely to significantly interfere with his ability to drive a vehicle safely?

27The Registrar has the burden of establishing, on a balance of probabilities, that the appellant’s cognitive impairment is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely. We find the Registrar has satisfied this burden.

28The Registrar relies on the CCMTA Standards which provide that drivers suffering from a cognitive impairment may be eligible for a licence if a medical assessment indicates cognitive functions necessary for driving are not impaired, or where required, a functional driving assessment shows the condition does not affect the ability to drive.

29The Tribunal is entitled to take the CCMTA Standards into consideration but is not bound by them.

30While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

31The appellant testified that he has been driving for over 60 years without any incidents. He testified that he is able to safely drive and he has developed his own manner of driving. He does not believe he will get into any accidents and he is an experienced driver. He testified that he cannot walk too far anymore given his age and needs to be able to drive in his local area to complete errands. The bank and grocery store are about 10 kilometres away and are not walkable. He testified that he lives with his daughter who is supportive of him and has been driving him around since his licence was suspended. He testified that Dr. Lawson has been his doctor for about two years. She has been treating him since the time of stroke.

32When considering the evidence, the Tribunal found particularly persuasive the functional driving assessments reports.

33The first Functional Driving Assessment Medical Report, dated April 22, 2022, recommends that the appellant’s driver’s licence remain suspended and that he is not safe to drive. The report notes that the appellant’s cognitive impairments are impacting his ability to drive safely and that he demonstrated poor awareness of driving environment, significant difficulty with attention, was easily distracted, and drifted into another lane multiple times. In addition, he did not identify a turning lane and almost proceeded straight through the intersection in the turning lane necessitating instructor intervention. The instructor further intervened by grabbing the wheel and using the brake to prevent the appellant from making a left hand turn in front of an oncoming vehicle in the intersection. In addition, he scored 25/30 on the Montreal Cognitive Assessment which is considered just below the normal range and he demonstrated difficulty with delayed recall.

34The second Functional Driving Assessment Medical Report, dated May 25, 2022, similarly notes that the appellant’s cognitive impairment was evident. His driving errors included: failure to stop for a red light, stopped a green light, drifting between lanes on a curved road with no awareness of doing so, speed too slow, and inadequate observation. The driving test was terminated for safety reasons.

35Finally, the Tribunal found persuasive the letter from Dr. Lawson, dated June 21, 2022, stating that the appellant continues to have cognitive impairment with no significant improvement. Dr. Lawson states that the appellant remains medically unfit to drive.

36In coming to its conclusion, the Tribunal takes the CCMTA Standards into consideration and notes that the most recent correspondence from the appellant’s family physician states that he has a cognitive impairment that makes him unfit to drive. In addition, both functional driving assessments state that the appellant has a cognitive impairment that significantly affects his ability to drive. The Tribunal notes that the second driving assessment had to be terminated early for safety reasons.

37Based on a careful consideration of all the evidence before us, we are satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely.

ORDER

38For the reasons set out above, pursuant to section 50(2) of the Act, we confirm the Registrar’s decision to suspend the appellant’s Class G licence.

Licence Appeal Tribunal

Dr. Constantine Petrou, Member

Rupinder Hans, Member