Date: 2023-01-30

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:

Robert Cooke

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATORS: Dr. Dimitri Louvish, Member Jeffery Campbell, Vice-Chair

APPEARANCES:

For the Appellant: Robert Cooke, Appellant

For the Respondent: Stephen Grootenboer, Agent

Held by teleconference: January 30, 2023

REASONS FOR DECISION AND ORDER

A. Overview

1Robert Cooke (the “appellant”) appeals the decision of the Registrar of Motor Vehicles (the “Registrar””) to suspend his driver’s licence effective May 25, 2022, for medical reasons.

2In response to a Medical Condition Report (“MCR”) dated May 18, 2022, completed by family physician, Dr. Emily Wilson (“Dr. Wilson”), by letter dated May 25, 2022, 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 “Act”), for medical reasons.

3In the letter of May 25, 2022, the Registrar enclosed a Musculoskeletal Condition/Motor Function Ability Impairment form (“MSK Form”) as well as a Cognitive Disorder Form (“Cognitive Form”) and requested that the appellant have his treating physician, specialist or nurse practitioner return them completed to the attention of the Driver Medical Review office.

4In a further letter dated June 24, 2022, the Registrar advised the appellant that they require a satisfactory functional driving assessment from an approved Functional Assessment Centre.

5The appellant appeals the suspension and asks the Tribunal to reinstate his licence.

6Having considered all the evidence and for the reasons that follow, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

B. Issue

7The 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.

8To resolve that issue, we will address the following questions:

1. Does the appellant suffer from medical conditions, namely dementia and a motor or sensory impairment, namely spinal stenosis – impaired motor function lower legs?

2. If the appellant does suffer from the above conditions, are these likely to significantly interfere with his ability to drive a motor vehicle safely?

C. The Law

9The Registrar has the authority under s.47(1) of the Act to suspend or cancel a driver’s licence for any grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e), or (f).”

10One sufficient reason to suspend a driver’s licence under s.47(1)(g) of the HTA is if the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely.

11Section 14(1)(a) of O. Reg. 340/94 enacted 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.”

12Section 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.

13Section 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.

14The 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.

15Pursuant 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 dementia and a motor or sensory impairment, namely spinal stenosis – impaired motor function lower legs

Evidence of the respondent

16In support of its allegation that the appellant suffers from dementia and a motor or sensory impairment, namely spinal stenosis – impaired motor function lower legs, the Registrar relies on the MCR from Dr. Wilson. In the MCR form, Dr. Wilson reported the two conditions. The Registrar also relies on the completed MSK Form dated June 17, 2022, from Dr. Wilson and the completed Cognitive Form dated June 17, 2022, also from Dr. Wilson.

Testimony of the Appellant

17The Appellant testified that he has a clear driving record and has driven hundreds of thousands of miles as a salesperson. He also testified that this situation began after receiving a physical examination by his new physician, Dr. Wilson. With respect to his health, he testified that, other than pain in his back area when shoveling snow, his health is good.

Conclusion

18Although we found the appellant’s testimony honest, we give more weight to the medical documentation before us (the MCR form, Cognitive Form and MSK form) which confirms the diagnoses of dementia and a motor or sensory impairment, namely spinal stenosis – impaired motor function lower legs.

19Therefore, given the evidence before us, we find that the Registrar has established on a balance of probabilities that the appellant suffers from the medical conditions of dementia and a motor or sensory impairment, namely spinal stenosis – impaired motor function lower legs

b. Is the appellant’s medical conditions of dementia and a motor or sensory impairment, namely spinal stenosis – impaired motor function lower legs likely to significantly interfere with his ability to drive a vehicle safely?

20The Registrar has the burden of establishing that the appellant’s medical conditions are likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely. We find that the Registrar has satisfied this burden.

Condition of Dementia

23In the Cognitive Form, Dr. Wilson advises that the appellant suffers from mild cognitive impairment/mild dementia, and notes that the appellant requires a functional driving assessment. Dr. Wilson also stated,

“Pt mild cognitive impairment – significant dysfunction in short-term memory. Pt has difficulty with directions – getting lost.”

24The Registrar relies on the CCMTA Standards, chapter 6.6.1 which prescribes the eligibility requirements for those who drive with the medical condition of cognitive impairment and dementia. As per that section, prior to the reinstatement of the appellant’s license, the Registrar requires that the appellant successfully complete a functional driving assessment showing that his condition of dementia does not affect his ability to drive.

Condition of motor or sensory impairment, namely stenosis spinal– impaired motor function lower legs

25In the MSK Form, Dr. Wilson notes that the appellant suffers from diseases of the joints/spine, deformity, fracture/sprain which is permanent and progressive, and which impairs his ability to operate a vehicle. In the MSK Form, Dr. Wilson recommends a Road Test and a Functional Driving Assessment in order to evaluate the appellant’s ability to drive safely. Dr. Wilson also stated,

“Spinal Stenosis – worsening symptoms. Neuropathic pain – sensory loss upper legs. Requires walker ambulate. Concerns with mobility lifting legs to manage pedals.

26With respect to this condition, the Registrar relies on the CCMTA Standards chapter 11.6.2 which prescribes the eligibility requirements for those who drive with the medical condition of chronic musculoskeletal conditions, in this case motor or sensory impairment, namely spinal stenosis – impaired motor function lower legs. The Registrar requires that the appellant successfully complete a functional driving assessment showing that he is able to compensate for any loss of functional ability required for driving.

27The Tribunal is entitled to take the CCMTA Standards into consideration but is not bound by them. The overriding consideration in this appeal is whether the Registrar has proven, on a balance of probabilities, that the appellant’s disorder is likely to significantly interfere with his ability to drive a motor vehicle safely. And while the CCMTA Standards are well-reasoned and helpful, every case must be considered on its own facts.

Testimony of the Appellant

28The appellant testified that he is able to lift his legs and has had no difficulty in driving. The appellant relies on his spotless driving record with respect to his ability to drive safely.

Conclusion

29It is self-evident that an inability to properly operate the lower limbs, either through lack of sensation or strength, impacts directly on the ability to operate a standard vehicle safely. Vehicle speed and braking are controlled by the feet and any limitation on their operation directly impacts safety. In this case, the Reg has requested a functional driving assessment to determine the extent to which the appellant’s abilities are impaired, and in the circumstances we agree that this is the most prudent way forward to guarantee highway safety. Until the functional driving assessment is performed, we conclude that the Registrar has succeeded in establishing under s. 14(1)(a) of O. Reg. 340/94 that Appellant’s dementia and motor or sensory impairment, namely spinal stenosis – impaired motor function lower legs, are likely to interfere with his ability to drive safely.

30We note that the appellant has, as of yet, failed to attend this assessment. This may be the appellant’s choice or it may be a situation where he may require the assistance of family in the scheduling or attending of a functional driving assessment.

E. Order

31For the reasons set out above, pursuant to subsection 50(2) of the HTA, we confirm the Registrar’s decision to suspend the appellant’s Class G Licence.