Barrie Foley v. Registrar of Motor Vehicles, 2024 CanLII 106208

Licence Appeal Tribunal File Number: 16249 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:

Barrie Foley

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATORS: Dr. Kailey Minnings, Member Rupinder Hans, Member

APPEARANCES:

For the Appellant: Barrie Foley, Appellant Chantal Foley, Representative

For the Respondent: Sharon Nelson, Agent

Held by teleconference: October 17, 2024

OVERVIEW

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

2By letter dated June 28, 2024, the Registrar suspended the appellant’s driving privileges for cognitive impairment after receipt of an unsolicited Medical Condition Report dated June 21, 2024. The appellant appeals the suspension and asks the Tribunal to reinstate his licence.

3At the hearing, the appellant’s daughter Chantal Foley represented him and participated in the hearing. His other daughter, Andrea Foley, attended as a support person and did not otherwise participate in the hearing.

4Having considered all the evidence and for the reasons that follow, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ISSUES

5The 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 of the applicable class safely.

6To resolve that issue, we will address the following questions:

a. Does the appellant suffer from cognitive impairment?

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

RESULT

7We find the appellant does suffer from cognitive impairment, and that it is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely. As previously noted, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

The Law

8The Registrar has the authority under s. 47(1)(g) of the Act to suspend or cancel a driver’s licence for any sufficient reason.

9Section 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.” 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.

10Section 203(1) of the Act requires medical professionals to report a person who has or appears to have a prescribed medical condition to the Registrar, while s. 203(2) gives medical professionals the discretion to report persons who have or appear to have a medical condition that they believe may make it dangerous for a person to drive.

11Section 14(2)(a) of O. Reg. 340/94 allows the Minister of Transportation 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 may also be considered but are not binding on this Tribunal.

12The 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.

13Pursuant to s. 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?

14The evidence satisfies us, on a balance of probabilities, that the appellant suffers from cognitive impairment. We found convincing the medical evidence from Dr. Ann Marie McKenna.

15The Registrar alleges the appellant has a cognitive impairment which first came to its attention after receiving an unsolicited Medical Condition Report (“MCR”) dated June 21, 2024, completed by internal medicine physician Dr. Ann Marie McKenna. At the time, Dr. McKenna worked at the Nipissing Specialized Geriatrics Clinic at North Bay Regional Health Centre. The appellant testified that it was his understanding that he was referred to Dr. McKenna for primary care. He testified that he attended appointments with Dr. McKenna on three occasions but is no longer seeing her. He further explained that he currently does not have a family doctor.

16The MCR states that the appellant suffers from a cognitive impairment due to dementia and major neurocognitive disorder concerns. Dr. McKenna states that the appellant “was booked for further testing on June 13/24 but declined to come, now refusing to attend clinic citing concerns re: losing Driver’s license.”

17In the MCR, Dr. McKenna further notes that there were “[m]ultiple encounters in clinic with evident memory impairment, needing reminders and repeat explanations re medical conditions, medications. Wayfinding issues getting to clinic noted by staff.” She further notes that the appellant was administered the MOCAB-Basic and scored “21+2/30.”

18The Registrar’s representative, Ms. Nelson, testified that a score of 26 or below out of 30 in the MOCA-Basic is considered an indicator of cognitive impairment, and the appellant scored a 21+2 out of 30. She testified that this is a standard tool compiled by medical experts across Canada. The Registrar further asserted that the appellant was refusing further testing as indicated in the MCR and did not have the cognitive disorder assessment form completed by a medical professional which would have provided further insight into his medical condition. The appellant testified that he does not believe he received the cognitive disorder assessment form.

19Under s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, this tribunal may, in making its decision, take notice of any generally recognized information within its specialized knowledge. As a physician licensed in Ontario it is within Dr. Minnings’ knowledge that the MOCA refers to the Montreal Cognitive Assessment, which 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. The MOCA-B or MOCA-Basic is an adapted version of the screening tool that is validated to detect mild cognitive impairment in those who are illiterate or who possess a low education level.

20The Tribunal notes that other than the MCR, no further medical reports or clinical records were provided to the Tribunal concerning the appellant’s cognitive impairment.

21The appellant disputes the contents of the MCR and asserts that he does not have a cognitive impairment. The appellant testified that he attended Dr. McKenna’s clinic on three separate occasions. He disagrees with the testing method and results of the cognitive tests that were administered twice by different nurse practitioners. The first time he was unable to identify two animals, namely a hippopotamus and a rhinoceros. He testified that he did not know what the animals were as they are African animals. He testified he was able to remember the four words that he was given to remember.

22The appellant testified that the second time he attended for testing, he was anxious about being late for his appointment and he was scolded by the staff when he arrived late. He testified that he was anxious and was unable to identify a peacock but did remember the four words given to him.

23The appellant testified that he felt that he was set up to fail the testing and lose his driver’s licence, that 60 percent of the testing was faulty, his ADHD may have affected the results, he was undergoing treatment for cancer, he was suffering from anemia, he was anxious, and he was harassed and discriminated against because of his age. He testified that he does not want to attend for further testing.

24We weighed the testimony of the appellant and the medical evidence presented, namely the MCR completed by the appellant’s doctor at the time. We found the MCR to be persuasive. Dr. McKenna clearly notes a cognitive impairment due to dementia and major neurocognitive disorder concerns. She states that the appellant was booked for further testing on June 13, 2024 but that he declined to attend for further testing citing concerns regarding losing his driving privileges. She further notes her clinic’s interactions with the appellant during his multiple visits to her clinic stating that he displayed memory impairment and needed reminders and repeat explanations regarding his medical conditions and his medications. We note that Dr. McKenna completed the MCR based on multiple encounters in her clinic and after cognitive testing was administered twice. This is compelling.

25Although we found the applicant’s testimony forthright, we find that the MCR supports the conclusion, on a balance of probabilities, that the appellant suffers from a cognitive impairment due to dementia and major neurological disorder concerns.

26Given the evidence before us, we find on a balance of probabilities, that the Registrar has established the appellant suffers from cognitive impairment.

Is the appellant’s cognitive impairment likely to significantly interfere with his ability to drive a vehicle safely?

27The Registrar has the burden of establishing that the appellant’s cognitive impairment medical condition is likely to significantly interfere with his ability to drive a motor vehicle. We find that the Registrar has satisfied this burden.

28The Registrar relies on the CCMTA Standards, specifically, chapter 6 dealing with cognitive impairment including dementia. The 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. Further, drivers with cognitive impairment or dementia are not able to compensate for their functional impairment.

29The Registrar relies on chapter 6.6.1 which states eligibility for any class of licence is supported 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; conditions for maintaining licence are met.

30The 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 cognitive impairment is likely to significantly interfere with his ability to drive a motor vehicle safely.

31While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

32The Registrar submits that the appellant’s internal medicine doctor submitted the MCR noting a cognitive impairment and safety concerns related to driving. The Registrar relies upon the MCR in meeting its burden. The Registrar submits that the appellant’s own doctor recommended that he submit to further testing on June 13th, but the appellant refused.

33The appellant testified that he exercises regularly and is in good shape. He is retired and worked for the City of Welland for about 35 years. He testified that he does everything for himself and lives alone. He testified that he needs to be able to drive to complete his essential tasks. He does not believe there are any issues with his ability to drive safely. He has declined to undergo any further testing.

34In this case, we are persuaded to apply the CCMTA Standards and take them into consideration. We note that the only medical evidence provided to the Tribunal with regards to the cognitive impairment is the MCR from the appellant’s physician. Knowing the circumstances and having met and assessed the appellant, Dr. McKenna concluded that there were safety concerns with his driving and submitted the MCR. We find that the Registrar’s reliance on the MCR is not misplaced.

35We 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 that they have the cognitive functions necessary for driving a vehicle safely for their own safety and the safety of others on the road.

36We find that the CCMTA Standards are reasonable and should be followed in the circumstances. Experiencing cognitive impairment while driving a vehicle can have catastrophic consequences. It is reasonable to require drivers who are cognitively impaired, to refrain from driving a vehicle until their ability to do so safely can be properly assessed.

37At present, the appellant falls short of the criteria set out in the CCMTA Standards.

38We find the Registrar has established that the appellant’s cognitive impairment is likely to interfere with his ability to drive safely.

39Based 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

40For the reasons set out above, pursuant to subsection 50(2) of the Act, we confirm the Registrar’s decision to suspend the appellant’s driver licence.

Licence Appeal Tribunal

Dr. Kailey Minnings, Member

Rupinder Hans, Member