Licence Appeal Tribunal File Number: 15513/MED

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:

Aileen Dalal

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Dr. Isla McPherson, Member

APPEARANCES:

For the Appellant: Aileen Dalal, Appellant

For the Respondent: Stephen Grootenboer, Agent

Held by teleconference: January 23, 2024

OVERVIEW

1Aileen Dalal (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (“Registrar”) to suspend her 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 an unsolicited police request for a driver’s licence review and further medical information stating that the appellant suffers from a medical condition that may affect her ability to drive a motor vehicle safely.

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 her ability to drive safely and that this provides sufficient reason to suspend her licence under s. 47(1)(g) of the Act.

4The appellant appeals the suspension under s. 50(1) of the Act. She denies that she suffers from cognitive impairment and denies that she suffers from a medical condition which interferes with her 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 her 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 her ability to drive a motor vehicle safely?

8The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”

RESULT

9Having considered all the evidence and submissions and for the reasons that follow, I find that the Registrar has satisfied its burden to establish that the appellant suffers from a medical condition that is likely to significantly interfere with her ability to drive a motor vehicle safely and I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

BACKGROUND

10On February 7, 2023, the appellant was the driver of a vehicle involved in a motor vehicle collision where police were called to the scene of the accident. In response to the collision, Sergeant Holmes submitted a Request for Driver’s Licence Review to the Ministry of Transportation. In this report Sergeant Holmes indicated that the driver may not be able to safely operate a motor vehicle due to “loss of consciousness / blackout”. The submitted report described the vehicle driven by the appellant hitting a parked vehicle and then failing to remain at the scene. Witness reports described the appellant’s vehicle, “swaying back and forth between two lanes of traffic before hitting a parked vehicle at the intersection and then speeding off”. Once the vehicle was located, Sergeant Holmes confronted the appellant, and he reports she did not remember being involved in the collision. The report reads, “has no recollection of hitting a motor vehicle even though she had extensive damage to her vehicle”.

11In response to this police report, the Registrar requested the appellant have her physician or nurse practitioner provide details of the circumstances leading to the collision including an indication if any medical condition(s) contributed to the collision, along with any residual deficits or other disqualifying medical concerns. In addition, the Registrar requested the appellant’s physician or nurse practitioner complete a Medical Report Form.

12In response to the request for further information, the appellant’s family physician Dr. Afrah Raza submitted a narrative letter, the completed Medical Report Form and an unsolicited cognitive screening tool, the Montreal Cognitive Assessment (the “MoCA”). The narrative letter listed medical diagnoses of: Transient Ischemic Attack, Atrial Fibrillation, Epilepsy, Deafness, Osteoporosis and Prediabetes.

13In response to the submitted medical information the Registrar suspended the appellant’s driver’s licence effective March 13, 2023, and requested the appellant’s physician or nurse practitioner complete a Seizure and Loss of Consciousness Form.

14The Seizure and Loss of Consciousness Form was completed by Dr. Raza and dated March 14, 2023. Dr. Raza indicated that the appellant had not had a seizure since 1970 and, “based on her history alone, her recent MVA Feb 7, 2023 is not in line with seizure”.

15The Registrar stated during the hearing that there was no medical reason to suspect a loss of consciousness occurred based on the medical information received. However, the Registrar was concerned about cognitive impairment based on the medical information submitted. Therefore, the Registrar requested the completion of a Cognitive Disorder Form, which was subsequently submitted by Dr. Raza on April 13, 2023, and changed the medical reason for the suspension to Cognitive Impairment.

ANALYSIS

Does the appellant suffer from cognitive impairment?

16The evidence presented at the hearing establishes that the appellant suffers from a medical condition, namely cognitive impairment.

17The Registrar’s position is supported by:

i. a Medical Report Form with a completed MoCA dated, February 28, 2023, from Dr. Raza;

ii. a Cognitive Disorder Form dated April 13, 2023 from Dr. Raza.

18The Medical Report Form submitted by Dr. Raza, dated February 28, 2023, supports the respondent’s position that the appellant suffers from cognitive impairment. Dr. Raza checked a box indicating the appellant suffers from a neurological disease, of which dementia was an inclusionary diagnosis. Under the description for Mental Competence on the requested form, Dr. Raza has written “MoCA 24/30” and attached the unsolicited cognitive screening tool, the MoCA. Pursuant to s. 16(b) of the Statutory Powers Procedure Act, I as a physician duly licenced to practice medicine in Ontario take notice that the MoCA is a validated, in-office cognitive screening tool that measures various cognitive domains including short term memory, visuospatial abilities, executive functions, attention, concentration and working memory, language and orientation to time and place.

19The Cognitive Disorder Form completed by Dr. Raza further supports the respondent’s position that the appellant suffers from cognitive impairment. Dr. Raza has indicated on this Form that the appellant has a diagnosis of Mild Cognitive Impairment and indicated her opinion that the appellant required a functional driving assessment.

20The appellant does not agree that she has cognitive impairment. The appellant reports Dr. Raza has not told her she has a diagnosis of Mild Cognitive Impairment. She acknowledges that she will forget small details such as the location of her keys or where she has parked her car, but she attributes any memory deficits to normal aging and denies any degree of cognitive impairment.

21At the hearing when the appellant was questioned as to whether there was an alternative explanation for the motor vehicle collision, she reported that “I don’t know what happened” and reiterated that she has no memory of the accident. No medical evidence was submitted to support an alternative medical explanation of the collision.

22The appellant testified that there must be a “better way” to test for cognitive impairment and explained that completing the MoCA was “like completing a college test”. The appellant testified under cross-examination that she has not sought out any other medical opinion or testing regarding her cognitive function.

23The appellant testified she was transported from the scene of the motor vehicle collision to The Juravinski Hospital by ambulance with chest pain from hitting the steering wheel during the collision. She reported that she subsequently left the hospital prior to being assessed by a nurse or physician because she did not want to wait. She reported she was still having chest pain when she left the hospital and disclosed that due to the severity of the pain, she had difficulty lying down that night to sleep. I find it concerning that the appellant was not bothered enough about her loss of memory, the motor vehicle collision she caused, and the resultant injury to her chest to remain in the Emergency Room for medical assessment. The appellant’s lack of appreciation of the seriousness of this situation suggests an inability to comprehend the events as well as poor insight into the potential consequences, and therefore supports the Registrar’s position that the appellant has cognitive impairment.

24No further testimony was provided disputing the diagnosis of cognitive impairment and supporting the appellant’s position that she does not have cognitive impairment.

25While the appellant disagrees with a diagnosis of cognitive impairment, she has not provided any medical evidence to dispute the diagnosis.

26The medical evidence before the Tribunal comprises two medical forms completed by the appellant’s family physician and an abnormal score on a validated cognitive screening tool that are all consistent with a diagnosis of cognitive impairment and therefore support the Registrar’s position.

27I find the medical evidence in this case relevant and persuasive. Based on the information available, I 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 her ability to drive a motor vehicle safely?

28I find that the Registrar has proven on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with her ability to drive a motor vehicle safely.

29The Registrar’s position is supported by:

i. A Functional Driving Assessment completed June 6, 2023, and

ii. The Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”).

30In response to the completed Cognitive Disorder Form which included Dr. Raza’s opinion that the appellant required a functional driving assessment, the Registrar requested that the appellant complete a functional driving assessment to determine whether she could safely operate a vehicle.

31The appellant completed a functional driving assessment at a Ministry - approved Functional Assessment Centre on June 6, 2023.

32The result of the functional driving assessment was a recommendation that the appellant cease driving completely as the performance was outside the range for healthy drivers. There was no recommendation that the appellant would benefit from driver rehabilitation. The concerns identified by the Occupational Therapist who conducted the assessment were related to on-road confusion, erratic and unpredictable pedal use, rolling forward during red lights, forcing a rear vehicle to react in response to braking while turning on a green arrow, speeding in a school zone, no attempt being made to stop at stop signs, and unsafe turning along with additional errors.

33The respondent also relies on the CCMTA Standards. Chapter 6 describes cognitive impairment in general and the concerns that result regarding driving safety, noting that cognitive problems often have a direct effect upon fitness to drive.

34Specifically, Standard 6.6.1 states that drivers who are diagnosed with cognitive impairment would be eligible for a licence if:

i. Complete medical assessment indicates cognitive functions necessary for driving are not impaired;

ii. Where required, functional driving assessment shows condition does not affect ability to drive; and

iii. Conditions for maintaining a licence are met.

35Standard 6.6.1 additionally states that the effects of Mild Cognitive Impairment may be subtle and difficult to assess in an office setting. This standard acknowledges that judgement and insight are important for driving, yet the usual battery of tests to assess the extent of cognitive limitations do not evaluate these functions. For these reasons, this standard concludes that a functional driving assessment is usually the most appropriate means of assessing the effects of the cognitive limitations upon driving unless severe dementia has been demonstrated.

36Section 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 but are not bound by them.

37The appellant testified that she is a safe driver and has no limitations on her ability to drive safely. She describes having only one speeding ticket several decades ago in her extensive driving history. She describes the hardships of living in a smaller community without public transit and the inconvenience of taking taxis. The appellant reports living on her own without a close family member or friend to assist her with day-to-day errands. While I have considered the appellant’s testimony, it is not supported by any submitted medical evidence.

38The appellant testified that she did not agree with the Occupational Therapist (OT) who had conducted the functional driving assessment. She testified that the OT “exaggerated the errors”. When questioned under cross - examination as to why the OT would exaggerate errors, the appellant responded that she did not know why. The appellant stated that she felt she had good judgement on the day of the test, and that “my judgement wasn’t impaired that day” but she identified that the cushion on the driver’s seat and the size of the vehicle limited her ability to perform well during the driving assessment.

39The appellant’s submissions included two letters she had written to the Registrar dated July 15, 2023 and August 17, 2023. In these letters she indicated that she had requested Dr. Raza to respond to the Registrar’s letter of July 4, 2023 indicating that they required confirmation that there had been significant improvement in her medical condition to move forward with her case. The appellant reports that on both occasions Dr. Raza would not provide her with any further documentation confirming an improvement in her condition. In cross-examination as to why Dr. Raza would not provide further documentation, the appellant testifies that Dr. Raza would not have known her well enough to note a change or improvement in her cognition. Dr. Raza’s refusal to provide any medical documentation supporting an improvement in the appellant’s cognition supports the Registrar’s position that the appellant’s cognitive impairment persists and is likely to interfere with her ability to drive safely.

40I considered the appellant’s position that the diagnosis of cognitive impairment will not impact her ability to drive safely. However, this is weighed against:

i. the scientific research that cognitive problems often have a direct effect upon fitness to drive as outlined in the CCMTA Standards,

ii. that the appellant has had a serious motor vehicle collision, which appears to be related to her cognitive impairment,

iii. that the appellant’s family doctor recommended a functional driving assessment due to concerns about the safety of driving with cognitive impairment,

iv. that the result of the functional driving assessment was a recommendation that the appellant cease driving,

v. that the appellant’s family doctor would not provide medical information to support an improvement in the appellant’s cognitive functions despite the appellant’s request on two separate occasions,

vi. that the appellant has not provided a medical opinion or any evidence that is inconsistent with the medical evidence which supports the Registrar’s position that her condition is likely to significantly interfere with her ability to drive a motor vehicle safely.

41Although this Tribunal is not bound by the CCMTA Standards, they can be considered when making the decision for the reason that these Standards are the result of a lengthy and intensive process to provide medical standards based on the best evidence available and with a focus on functional ability to drive rather than exclusively on medical diagnoses. My review of the evidence shows that none of the conditions recommended for relicensing outlined in the CCMTA Standards have been met.

42I acknowledge the burden that the lack of a driver’s licence is having on the appellant. However, the medical evidence is significant and compelling.

43As such, for the reasons cited, I am satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with her ability to drive safely.

Conclusion

44I 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, and that condition is likely to significantly interfere with her ability to drive a motor vehicle safely.

ORDER

45For 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.