Licence Appeal Tribunal File Number: 15010/MED
In the matter of an appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), from a decision of the Registrar of Motor Vehicles to suspend a licence pursuant to Section 47(1) of the Act.
Between:
Robin Edwardes
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR: Dr. Erica Weinberg, Member
APPEARANCES:
For the Appellant: Robin Edwardes, Self-Represented
For the Respondent: Ian Sookram, Representative
HEARD: August 2, 2023 and August 29, 2023
OVERVIEW
1Robin Edwardes (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (“Registrar”) to suspend their Class G licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) after the Registrar received a report from a treating health care provider that the appellant suffers from a medical condition that may affect their safety to drive.
2The Registrar has the authority under s. 47(1)(g) of the Act to suspend or cancel a driver’s licence for any sufficient reason. Section 14(1)(a) of O. Reg. 340/94 under the Act (the “Regulation”) states 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 their ability to safely drive a motor vehicle of the applicable class safely. Under s. 14(2)(b) of the Regulation, the Minister of Transportation may require a driver to provide satisfactory evidence that they are able to drive safely.
3The Registrar takes the position that the appellant suffers from a medical condition, namely Cognitive Impairment, that is likely to significantly interfere with their ability to drive safely and that this provides sufficient reason to suspend their licence under s. 47(1)(g) of the Act.
4The appellant appeals the suspension under s. 50(1) of the Act. They deny that they suffer from Cognitive Impairment and deny that they suffer from a medical condition which interferes with their ability to drive safely.
5Pursuant 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.
ISSUES
6The issue in this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive a motor vehicle safely.
7To resolve that issue, I will address the following questions:
i. Does the appellant suffer from Cognitive Impairment?
ii. If so, is this likely to significantly interfere with their ability to drive a motor vehicle safely?
RESULT
8Having considered all the evidence and for the reasons that follow, I find that the Registrar has satisfied its burden to establish, on a balance of probabilities, that the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive a motor vehicle safely and I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.
ANALYSIS
Does the appellant suffer from Cognitive Impairment?
9The evidence presented at the hearing establishes, on a balance of probabilities, the Registrar’s allegation that the appellant suffers from a medical condition, namely Cognitive Impairment.
10The Registrar’s position is supported by an unsolicited Medical Condition Report (“MCR”) and medical documents submitted by the appellant from a Memory Clinic.
11In the Discretionary portion of the MCR (date of examination April 19, 2023), Dr. A. wrote that the appellant “is currently under investigation for cognitive concerns, MoCA [Montreal Cognitive Assessment] 22/30, abnormal Trails and clock. An on-road driving assessment has been ordered to determine fitness to drive. I expect the results of this comprehensive on-road driving assessment to be sent to you once it is completed.” In the limited medical evidence submitted by the appellant from their April 19, 2023 appointment at the Memory Clinic, I note documentation regarding abnormal Trails testing, the appellant’s completed MoCA test inclusive of the “clock”, plus a score of 22/30 on the MoCA test. I also take note of the fact from the completed MoCA test, that a MoCA test score of ≥ 26/30 is considered normal.
12The appellant argues that there are errors or problems or issues with the MCR. They argue that: Dr. A. did not report them in the “Mandatory” portion (Part 3) under Cognitive Impairment; the absence of Cognitive Impairment being checked off/mentioned anywhere in the form is a “denial of having Cognitive Impairment”; the information written in the “Discretionary” portion states “cognitive concerns”, which is not Cognitive Impairment; and that Dr. A. did not indicate what type of health care professional they are.
13Furthermore, the appellant argues that both MoCA tests (2018 and 2023) submitted as evidence had mistakes in their scoring and were scored “incorrectly” and “unfairly”. They provided written, itemized, step-by-step details of their corrections to both MoCA test scores, argued that they actually scored higher in the 2023 MoCA compared to the 2018 MoCA and stated that this was in keeping with their comments at the Memory clinic in April 2023 that their memory had in fact improved since their last visit and doing a repeat MoCA test was a waste of time.
14In addition, the appellant argues that there were many incorrect, misinterpreted or misreported statements written in the medical notes from both 2018 and 2023.
15Moreover, the appellant argues that they: do not suffer from Cognitive Impairment or cognitive concerns; their family has not expressed any cognitive concerns; and that Dr. A. did not set up any follow-up appointment or further "investigations”.
16I agree with the appellant that Dr. A. did not report them to the Ministry of Transportation (the “Ministry”) under s. 203(1) of the HTA (Part 3; Mandatory reporting) where Cognitive Impairment is specifically listed. However, in Part 3 of the MCR, under Cognitive Impairment it states, “A disorder resulting in cognitive impairment that affects attention, judgement and problem solving, planning and sequencing, memory, insight, reaction time or visuospatial perception, and results in substantial limitation of the person’s ability to perform activities of daily living”. In the partial April 2023 Memory Clinic note in evidence, under “Independent ADLS [Activities of Daily Living] and Basic ADLS”, most of the appellant’s ADLS were subjectively reported as “intact”, albeit not their ambulation.
17Based on this information, I find on a balance of probabilities that the appellant does not meet the second part of the definition of Cognitive Impairment according to Part 3 of the MCR (i.e., substantial limitation of the person’s ability to perform ADLS). However, I find that the absence of the appellant being reported to the Ministry under Part 3 of the MCR does not mean that the appellant does not suffer from Cognitive Impairment. Not all persons with Cognitive Impairment have substantial limitation of their ability to perform ADLS. Dr. A. did report the appellant under s. 203(2) of the HTA (Part 4; Discretionary Reporting). Part 4 of the MCR is specifically for the “reporting of patients who have, or appear to have, a medical condition that may make it dangerous for the person to operate a motor vehicle…”. I also acknowledge the appellant’s expressed concerns that in Part 2 of the MCR, Dr. A. did not check off what type of health care professional they are. However, in Part 2 of the MCR only the Practitioner’s name and address are required fields. I find Dr. A. satisfied the required fields in Part 2 of the MCR.
18I prefer the evidence of Dr. A. and their staff (2023) and Dr. D. and their staff (2018) with respect to the scoring of the appellant’s MoCA tests. The named doctors and their staff would all be qualified or trained to administer and/or score cognitive tests, including the MoCA test.
19I assign less weight to the appellant’s oral and detailed written evidence regarding mistakes or errors they perceive in the scoring of their MoCA tests in 2018 and 2023 at the Memory Clinic. The appellant is not qualified or trained to score a MoCA test. It is clear from the 2023 MoCA test in evidence that the appellant had significant issues with the “Delayed Recall” part of the test. It is also clear that the appellant had far fewer issues with the Delayed Recall part of the test in 2018.
20Furthermore, when questioned about other testing done at the Memory Clinic in April 2023, the appellant indicated that they completed two “long Trail tests”, had “problems” and “got lost” in the second Trail test which involved numbers and letters, and emphasized that these Trail tests are not part of the MoCA scoring. As a licenced and duly qualified physician practicing in Ontario, I am aware based on my knowledge that the Trail tests are validated cognitive tools used to assess a person’s cognitive function, specifically assessing working memory, visual processing, visuospatial skills, selective and divided attention, processing seed, and psychomotor coordination. I take notice of these facts pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22. The medical evidence indicates that in 2018 the appellant’s Trail A and Trail B tests were “intact”. In 2023, the medical evidence indicates that the appellant’s Trail A was “impaired” (1 minute, 44 seconds; 1 error) as was their Trail B (3 minutes, 54 seconds; ++ errors).
21I acknowledge that the appellant does not perceive that they have any cognitive impairment or cognitive issues of concern and stated that Dr. A. did not set up a follow-up appointment or further “investigations”. I find that a comprehensive on-road driving assessment (as stated by Dr. A. in the MCR) would be considered a further investigation. Moreover, the medical evidence submitted by the appellant from their April 2023 appointment at the Memory Clinic clearly indicates that three distinct and validated cognitive function tests (MoCA, Trail A and Trail B) were administered and all three cognitive test results placed the appellant’s cognitive abilities in the “impaired” range. Based on my knowledge, I am aware that a MoCA score of 19 to 25 is indicative of mild Cognitive Impairment. I prefer Dr. A.’s objective, medically supported assessment over the appellant’s subjective self-assessment.
22I find that the Registrar has established on a balance of probabilities that the appellant suffers from Cognitive Impairment.
Is the appellant’s medical condition likely to significantly interfere with their ability to drive a motor vehicle safely?
23I find that the Registrar has proven on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with their ability to drive a motor vehicle safely.
24The Registrar’s representative argues that cognitive problems often have a direct effect upon fitness to drive and the Registrar requires confirmation of a satisfactory functional driving assessment at an approved Functional Assessment Centre in order to determine whether the appellant can safely operate a motor vehicle. They also stated that the Registrar’s view is consistent with Dr. A.’s comments in the MCR.
25Section 14(2)(a) of the Regulation allows the Registrar to consider the CCMTA Standards when determining whether the requirements of s. 14(1) are met. The Tribunal may take the CCMTA Standards into consideration, although they are not binding on the Tribunal.
26The Registrar relies on the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”), specifically Chapter 6. Chapter 6.6.1 (Cognitive Impairment or Dementia) of the CCMTA Standards states that drivers with Cognitive Impairment are eligible for any class of 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; and conditions for maintaining a licence are met.
27The appellant argues that they have no medical condition that interferes with their ability to drive safely. They rely on their good driving record plus an excerpt from Chapter 6.3 of the CCMTA Standards, specifically “no in-office test or battery of tests, including global cognitive screens such as MMSE or MoCA have sufficient sensitivity or specificity to be used as the sole determinant of driving fitness in all cases”.
28I take note of the fact that the appellant’s excerpt from the CCMTA Standards does not include the subsequent sentence which states, “However, abnormalities in these tests indicate a requirement for further testing”.
29While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.
30Although I am not bound by the CCMTA Standards, I find them to be reasonable. I accept the safety concerns set out in Chapter 6 of the CCMTA Standards, which include:
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;
no in-office test or battery of tests, including global cognitive screens such a MMSE or MoCA have sufficient sensitivity or specificity to be used as the sole determinant of driving fitness in all cases;
abnormalities in these tests indicate a requirement for further testing and a clinician with doubts about a patient’s cognitive functioning and its effects upon driving should refer the patient for a functional driving assessment by an OT or directly to the licensing authority;
functional driving assessment is usually the most appropriate means of assessing the effects of Cognitive Impairment upon driving unless severe dementia has been demonstrated; and
Cognitive Impairment may result in a persistent impairment in driving and these drivers are not able to compensate for this functional impairment.
31Given the medical evidence, I am persuaded to apply the CCMTA Standards. As previously stated, three validated cognitive screening tests indicate, on a balance of probabilities, that the appellant has the medical condition of Cognitive Impairment.
32I accept the respondent’s and Dr. A.’s submissions that further testing or investigations, in this case a satisfactory functional driving assessment at an approved Functional Driving Centre, should be submitted is reasonable keeping in mind public road safety,
33I am satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with their ability to drive safely.
Conclusion
34I find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely Cognitive Impairment, that is likely to significantly interfere with their ability to drive a motor vehicle safely.
ORDER
35For the reasons set out above, pursuant to subsection 50(2) of the Act, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.
LICENCE APPEAL TRIBUNAL
__________________________
Erica Weinberg
Adjudicator
Released: September 6, 2023