Licence Appeal Tribunal File Number: 14672 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:

Peter Paetkau

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

PANEL:

Dr. Isla McPherson Rupinder Hans

APPEARANCES:

For the Appellant:

Peter Paetkau, Appellant

For the Respondent:

Stephen Grootenboer, Representative

HEARD: April 27, 2023

OVERVIEW

1Peter Paetkau (the “appellant”) appeals the decision of the Registrar of Motor Vehicles (the “Registrar”) to suspend his Class G driver’s licence for the medical condition of cognitive impairment under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (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.

ISSUES

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, we will address the following questions:

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

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

RESULT

6We find the appellant does suffer from 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

7The 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.

8Section 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.”

9Section 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.

10Section 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.

11The 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.

12Pursuant 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 cognitive impairment?

13The evidence satisfies us on a balance of probabilities that the appellant suffers from cognitive impairment. This includes the medical evidence presented at the hearing that supports the conclusion that the appellant suffers from cognitive impairment.

14An unsolicited Medical Condition Report (“MCR”) dated November 29, 2022, completed by the appellant’s family doctor, Dr. Thomas O’Brien, states that the appellant has “presumed cognitive impairment not-yet-defined with safety concerns and refusal (to date) to undergo assessment.”

15The appellant testified that Dr. O’Brien has been his family doctor for about 10 to 15 years.

16The appellant testified that his family doctor submitted the MCR after he got into a motor vehicle accident on October 25, 2022. The appellant testified that he visited his family doctor even though he was not injured in the accident. At the time, his family doctor told him that he had to fill out the MCR, and he disagreed with the doctor’s decision.

17The appellant testified that his family doctor told him that he needed some medication to assist him, and appellant told him that he was not sick. He further testified that his family doctor told him that he needed to get additional testing and assessments, but he refused.

18The appellant testified that he does not suffer from cognitive impairment or any other medical condition. He stated that he has been healthy his whole life. He believes that someone told his family doctor that he has a health issue and was framing him. He believes that someone is out to get him but could not identify who was framing him or what was to be gained by framing him.

19When questioned about his refusal to undergo testing and assessment, the appellant stated that he does not feel an assessment is necessary. He reports that he will not follow through with the recommendations of his family doctor for cognitive testing.

20The appellant testified that after he received the letter from the Registrar advising that his driving privileges were suspended, he called his family doctor to ask if he would complete the provided Cognitive Disorder form. His family doctor said he would not complete the cognitive impairment form.

21Other than the MCR, no further medical reports or clinical records were provided to the Tribunal.

22We weighted the testimony of the appellant and the information contained in the MCR completed by his family doctor and found the MCR persuasive. We note that the appellant has been under the medical care of his family doctor for over ten years. Dr. O’Brien states in the MCR that the appellant has a presumed cognitive impairment not-yet-defined. We are persuaded that the appellant’s family doctor would be able to determine the presence of cognitive impairment as set forth in the MCR.

23Given 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?

24The 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.

25The Registrar relies on the CCMTA Standards. The Tribunal is entitled to take the CCMTA Standards into consideration but is not bound by them. While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

26The CCMTA Standards state that cognitive problems often have a direct effect upon fitness to drive and any indications of possible cognitive compromises of fitness to drive must not be neglected by clinicians. Among other things, cognitive impairment can affect a person’s judgment, perception, and reaction, and may have a significant impact on a person’s ability to drive safely.

27The CCMTA Standards provide that drivers suffering from cognitive impairment may be eligible for a driver’s 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.

28The Registrar submits that the appellant’s own family doctor stated in the MCR that there are safety concerns related to his driving. The Registrar relies upon the MCR in meeting its burden. The Registrar’s takes the position that they require the completion of the Cognitive Disorder Form to provide more information about the appellant’s cognitive impairment before considering reinstatement of the appellant’s driving privileges.

29The appellant testified that he is a safe driver who has been driving for about 50 years. He testified that he was in a minor fender bender on a prior occasion in 2017, but nothing else other than the most recent accident on October 25, 2022, when his vehicle hit a bus. He testified that having his licence suspended has been stressful for him. He stated that he drives slowly and carefully and there are no issues with his driving. He has refused to complete the recommended medical assessment or cognitive testing.

30The appellant testified that currently his son drives him to the grocery store and appointments, or he takes a taxi. He resides with his wife in an assisted care facility mainly because his wife has dementia and needs assistance.

31In this case, we are persuaded by the CCMTA Standards and take them into consideration. We note that the only medical evidence provided to the Tribunal is the MCR from the appellant’s family doctor of over 10 years. Knowing the circumstances and having met with the appellant, his family doctor concluded that there were safety concerns with his driving. We note the Registrar’s reliance upon the MCR is not misplaced.

32We note that CCMTA Standard 6.6.1 states that a driver could be eligible to drive if a complete medical assessment indicates cognitive functions necessary for driving are not impaired, or where required, a functional driving assessment shows condition does not affect ability to drive. We find that it is reasonable for a person to undergo medical assessments to ensure they have the cognitive functions necessary for driving a vehicle safely for their own safety and the safety of others on the road. We find the Registrar’s position is reasonable in requiring the completion of the Cognitive Disorder Form to obtain more information about the appellant’s cognitive impairment before considering reinstatement of the appellant’s driving privileges.

33We find that the CCMTA Standards are reasonable and should be followed in the circumstances. Experiencing cognitive impairment while driving can have catastrophic consequences. It is reasonable to require drivers who are cognitively impaired, to refrain from driving until their ability to do so safely can be properly assessed.

34Based 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

35For 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. Isla McPherson, Member

Rupinder Hans, Member