Linda-Marie Perkins v. Registrar of Motor Vehicles, 2023 CanLII 9259

Date: 2023-02-07

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:

Linda-Marie Perkins

Appellant

-and-

Registrar of Motor Vehicles

Respondent

DECISION & ORDER

ADJUDICATORS: Dr. Dimitri Louvish, M.D., Member Bruce Stanton, Member

APPEARANCES:

For the Appellant: Linda-Marie Perkins, Appellant Roxanne Mackenzie, Representative (Sister of the Appellant)

For the Respondent: Steve Grootenboer, Agent

Heard by teleconference: January 26, 2023

REASONS FOR THE DECISION AND ORDER

Overview

1On June 15, 2022, the appellant attended an appointment with her family physician, Dr. Jatinderpreet Singh. After the appointment, Dr. Singh submitted a Discretionary Report of Medical Condition or Impairment to the Driver Medical Review Office of the Ontario Ministry of Transportation (“MTO”).

2After review of Dr. Singh’s report, the Registrar of Motor Vehicles (“respondent”) advised the appellant that her driving privileges were being suspended for medical reasons. The respondent’s letter reported that the basis for the licence suspension was cognitive impairment. The letter explained that to assess the appellant’s abilities to drive safely, she would need to undergo a Cognitive Disorder assessment by a physician, specialist or nurse practitioner, and have the report of that assessment sent to the Ministry of Transportation, Driver Medical Review Office.

3The appellant was assessed by Dr. Singh, on July 27, 2022, and the Cognitive Disorder report form was completed and submitted as requested.

4Following its review of the report, the respondent advised the appellant in a letter dated September 16, 2022 that she would need to undergo a functional driving assessment from an approved Functional Assessment Centre, to determine if she could drive safely.

5On October 12, 2022, the appellant applied to the Licence Appeal Tribunal (the “Tribunal”) to appeal the suspension of her driving privileges.

6The appellant undertook a functional driving assessment on January 12, 2023. Based on the results of that assessment, the respondent notified the appellant, by letter of January 23, 2023, that her driving privileges will remain suspended.

7We must determine whether the respondent was justified in suspending the appellant’s driving privileges. In reaching a conclusion on that question, we will need to decide if the appellant suffers from a medical condition that is likely to significantly interfere with her ability to drive a motor vehicle safely?

Issue

8Does the appellant suffer a medical condition, and if so, is it likely to significantly interfere with her ability to drive a motor vehicle safely?

Result

9For the reasons set out below, we find that the appellant does suffer a medical condition that is likely to significantly interfere with her ability to operate a motor vehicle safely. We, therefore, confirm the respondent’s decision to suspend the appellant’s licence.

Evidence and Analysis

Does the appellant suffer from a medical condition?

10We find that the appellant suffers from mild cognitive impairment.

11A medical condition that could result in having driving privileges suspended is defined in O. Reg. 340/94 (the “Regulation”) under the Highway Traffic Act. Section 14(1)(a) of the Regulation directs that the 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 safely.

12The respondent directs us to a Cognitive Disorder report completed by Dr. Singh, dated July 27, 2022 (Exhibit 3, Tab 3), in which he notes the appellant suffers from mild cognitive impairment. Part of this assessment is a Montreal Cognitive Assessment (“MoCA”) test for dementia, in which the appellant achieved a score of 19/30. A MoCA score of 19 to 25 indicates mild cognitive impairment.

13The appellant refers us to an assessment she attended at a Mint Memory Clinic on September 13, 2022 (Exhibit 4). Although the report provided no summary statement or conclusion regarding the appellant’s cognition, the various measures in the report show the appellant achieving a “normal” score in all but the report on her Global Deterioration Scale (“GDS”), relating to cognitive decline. On this measure the reader is left uncertain of the appellant’s GDS score.

14On the GDS page of the report, a GDS score of “1”, No Cognitive Decline, is circled on the chart at the top of the page. But lower on the page, a GDS score of “3”, Mild Cognitive Decline, is written in the space provided. It is not known which score applies. The appellant did not provide evidence to clarify which was the correct score.

15The Mint Memory Clinic report was completed by a registered occupational therapist. The respondent gave evidence that assessments of cognitive impairments must be conducted by a physician, specialist, or nurse practitioner, as specified in the Notice to Suspend sent to the appellant on June 20, 2022.

16We give more weight to Dr. Singh’s report than the Mint Memory Clinic report. The Mint Memory Clinic report was completed by an occupational therapist who is less qualified to give conclusions relating to cognitive disorders or impairments. The Mint Memory Clinic report was not conclusive as to the appellant’s cognition and no summary statement was provided. For these reasons we conclude the appellant suffers from mild cognitive impairment.

17We must now consider whether the evidence demonstrates the appellant’s impairment is likely to significantly interfere with her ability to operate a motor vehicle safely.

Is the appellant’s medical condition likely to significantly interfere with her ability to drive safely?

18To answer this question, we must first consider what standard is used to determine whether a person’s cognitive impairment reaches a level of interfering with their ability to drive safely. We heard that the standard used is a functional driving assessment.

a. The respondent directs us to the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”) at Section 6.3 (Exhibit 3), in relation to cognitive impairment, that states, “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 occupational therapist ...”

b. Section 14(2)(a) of the Regulation allows the Minister of Transportation (“Minister”) to use the CCMTA Standards to determine whether a person’s medical condition is likely to significantly interfere with their ability to drive safely. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding as every case must be decided on their own merits. In considering the evidence and submissions presented by the parties, we are persuaded to apply the CCMTA Standards to this case.

c. Section 6.6.1 of the CCMTA Standards provides the guidelines for assessment in relation to persons with cognitive impairment or dementia. The guideline indicates that a person is eligible for a driver’s licence if a functional driving assessment shows the cognitive condition does not affect their ability to drive safely. Put another way, a person could have cognitive impairment, but they may be able to drive safely. It is the result of a functional driving assessment that makes that determination. The results of a functional driving assessment can either serve to reinstate driving privileges or confirm the decision to keep the licence suspended.

19The results of the appellant’s functional driving assessment do not support reinstatement of her driving privileges.

a. The appellant attended a functional driving assessment on January 12, 2023. The assessment consists of an In-Clinic interview with an occupational therapist, and an On-Road assessment with the occupational therapist and a driving instructor as passengers/observers.

b. The respondent directed us to the result of the appellant’s functional driving assessment (Exhibit 5) in which the assessor, in Section 4 – Recommendations, checked the box, “Deficits in Functional Driving Skills - Driving Not Recommended”.

c. The respondent remarked that the assessor did not choose the recommendation “Deficits in Functional Driving Skills – Rehabilitation Candidate”. That the appellant is not regarded a candidate for rehabilitation, the respondent submits, indicates her deficits in functional driving would not be addressed through additional driver training.

d. The respondent referred us to Section 6 of the assessment, Additional Comments, that noted the appellant’s difficulties with observing posted speed limits and being attentive to and remembering the assessor’s instructions. She often asked for the repetition of directions, gave up right of way, and confused left and right. The assessor noted her confusion and reduced awareness and concluded that “driving was not recommended.”

e. The appellant directed us to the In-Clinic portion of the functional driving assessment noting that she passed all the clinical testing and achieved a MOCA score of 22/30. The appellant submits that passing the In-Clinic part of the assessment should be considered favourably toward the reinstatement of her licence.

f. The respondent submitted that the functional driving assessment must be considered in its entirety, not just one part or the other. The assessors’ recommendations in Section 4 of the assessment should prevail. We agree.

g. The appellant and her representative presented oral evidence stating that the functional assessment was conducted in an unfamiliar area during poor weather and road conditions, and after a seven-month period without driving (due to her licence suspension). She said that these factors resulted in her unfavourable functional driving assessment.

h. The respondent replied that the rules of the road are the same throughout Ontario and drivers are expected to adjust their driving habits to the prevailing weather and road conditions.

i. We agree with the respondent. To operate a motor vehicle safely, one must be able to demonstrate an ability to follow the rules of the road regardless of the area and adapt to unpredictable weather and road conditions that can occur anywhere in the province.

j. Having considered the evidence and submissions of the parties, we find that the appellant’s cognitive impairment is likely to significantly interfere with her ability to drive safely.

Was there any evidence to contradict the functional driving assessment conclusion?

20Yes, we heard evidence from a witness for the appellant, but we are not persuaded by her evidence as she is not impartial and is not qualified to assess cognitive impairments.

21A witness for the appellant, Rachel Bailie, testified that as a passenger in a motor vehicle with the appellant many times up to April 2022, she had no concerns with the appellant’s driving and no doubt of her driving abilities. She observed none of the driving characteristics described in the functional driving assessment.

22Ms. Bailie gave evidence that she is a friend of the appellant. Their relationship suggests the evidence she provided is less than impartial. As a friend, she surely wishes to help the appellant in her appeal. We assign less weight to her evidence than that of the qualified, impartial assessors of the functional driving assessment.

Conclusion

23We find that the appellant suffers from mild cognitive impairment that is likely to significantly interfere with her ability to operate a motor vehicle safely. Therefore, the respondent’s decision to suspend the appellant’s licence is confirmed.

Order

24For the reasons given above, pursuant to subsection 50(2) of the Highway Traffic Act, the Registrar’s decision to suspend the appellant’s driver’s licence is confirmed.