Licence Appeal Tribunal File Number: 16312/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:

David Ridley

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Dr. Isla McPherson, Member

APPEARANCES:

For the Appellant: David Ridley, Appellant

For the Appellant: Gayle Ridley, Appellant’s spouse

For the Respondent: Ian Sookram, Agent

Held by teleconference: November 14, 2024

OVERVIEW

1David Ridley (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (“Registrar”) to suspend his 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 medical condition report from the appellant’s geriatrician stating that the appellant suffers from a medical condition that may affect his 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 his ability to drive a vehicle of the applicable class safely and that this provides sufficient reason to suspend his licence under s. 47(1)(g) of the Act.

4The appellant appeals the suspension under s. 50(1) of the Act. He denies that he suffers from cognitive impairment and denies that he suffers from a medical condition which interferes with his ability to drive a vehicle of the applicable class 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 his ability to drive a vehicle of the applicable class 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 his ability to drive a vehicle of the applicable class 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 his ability to drive a vehicle of the applicable class safely and I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from cognitive impairment?

10The evidence presented at the hearing establishes that the appellant suffers from a medical condition, namely cognitive impairment.

11The Registrar’s position is supported by:

i. a Medical Condition Report (MCR) dated March 8, 2022, from Dr. E;

ii. a Medical Condition Report (MCR) dated July 23, 2024, from Dr. K; and

iii. a Cognitive Disorder Form dated September 9, 2024, from Dr. SF.

12On the MCR dated March 8, 2022, submitted by hospitalist Dr. E, the box is checked indicating that the appellant suffers from Dementia or Alzheimer’s. Dr. E additionally checked the box indicating the appellant suffers from Alcohol Dependence. Dr. E indicated on the form that she had known the appellant for several weeks at the time the form was submitted.

13The appellant’s driver’s licence was subsequently suspended due to Cognitive Impairment and Alcohol Use Disorder for 1 year. The appellant’s license was reinstated following the receipt of a Cognitive Disorder Form and a Substance Use Assessment Form, completed by family physician Dr. SF on February 9, 2023, checking the boxes that the appellant did not suffer from cognitive impairment and had only a mild substance use disorder.

14The following year on July 23, 2024, geriatrician Dr. K submitted a MCR which supports the respondent’s position that the appellant suffers from cognitive impairment. Dr. K’s opinion is that the appellant suffers from cognitive impairment, due to dementia, that affects attention, judgement and problem solving, planning and sequencing, memory, insight, reaction time or visuospatial perception, and results in substantial limitation of the appellant’s ability to perform activities of daily living. Dr. K additionally checked the box on the MCR indicated that the appellant suffered from a substance use disorder due to alcohol.

15Family physician Dr. SF completed the Registrar’s requested Substance Use Assessment Form on September 9, 2024, checking the box the appellant had mild substance use disorder and this medical condition was no longer relied upon for the medical suspension. Dr. SF also completed the Cognitive Disorder Form dated September 9, 2024. The Cognitive Disorder Form asks for the physician’s opinion on the degree of cognitive impairment on a scale from no impairment to severe impairment. When this Form was completed in 2023 Dr. SF had checked the box for “no impairment”. This time Dr. SF has left this section of the Form blank and written a narrative comment that the appellant has completed a Practical In-Car Driving Evaluation and the recommendation was not clear.

16The appellant testified regarding the event that led him to be in hospital under the care of Dr. K. He describes going outside for a cigarette and falling into the snow where he was unable to extricate himself and lay for several hours. Upon being found, he was transferred to the hospital where he was admitted for approximately two months from March – May 2024. During that two-month admission, he spent approximately two weeks in acute care and was then transferred to a rehabilitation hospital for the remaining six to seven weeks. During his time in the rehabilitation hospital geriatrician Dr. K was his attending physician.

17The appellant testified that after four to five weeks in the rehabilitation hospital, a physiotherapist attempted to ask him some questions that he could not answer because he was heavily medicated. The appellant testified that after the second attempt by the physiotherapist to ask questions he was annoyed and did not want to answer the questions. The appellant testified that the physiotherapist stated that if he would not attempt to answer the questions then he would then have to complete a Practical In-Car Driving Evaluation due to concerns regarding cognitive impairment.

18The appellant completed the Practical In-Car Driving Assessment on June 18, 2024, three months following his discharge from hospital. Following the release of this report, the appellant was notified by Dr. K that she would be “pulling his license”.

19The appellant takes the position that he does not have cognitive impairment and that his “mind is not dysfunctional”. He testified that he never saw Dr. K when he was in hospital and was unable to answer the questions of the physiotherapist because he was heavily medicated at the time. The appellant reported that the Practical In-Car Driving Evaluation was unfairly challenging because he had to complete the test in a vehicle where he struggled with working the windshield wipers. He admitted the driving instructor was able to operate the windshield wipers. The appellant testified that he asked the driving instructor at the end of the session if there were concerns with his driving and was answered, “I see no reason why you should be taken off the road”.

20Under cross-examination the appellant testified that the physiotherapist told him he had cognitive impairment, but that no physician has ever told him he has cognitive impairment, including Dr. K. The appellant was asked if he had spoken to his family doctor regarding the suspension, and he confirmed that he had, however no letter of support was offered or received.

21The medical evidence for the appellant’s current suspension before the Tribunal includes a MCR completed by Dr. K documenting that the appellant has cognitive impairment. Dr. K has indicated she is a geriatrician, making cognitive impairment due to dementia within her specialized area of expertise. Dr. K’s assessment of the appellant’s cognitive status is following a six to seven week admission to hospital, which is an extended period of time to have someone under observation. I considered the appellant’s position that he did not see Dr. K, which I find most unusual and indeed unlikely that a physician would not see a patient during an admission to hospital of several weeks duration. However, even if this were the case, as a licensed physician in Ontario, and as authorized by s.16 of the Statutory Powers Procedure Act, R.S.O. 1990, c.S. 22, I still believe that Dr. K’s evaluation can be based on an assessment from an allied health profession.

22The appellant does not agree that he has cognitive impairment, although testified he was informed of this diagnosis during his hospital stay. The appellant requested the Tribunal consider the Forms completed by Dr. SF over Dr. K. I have taken the Cognitive Disorder Form by Dr. SF into consideration, and while Dr. SF has not checked the box indicating a degree of cognitive impairment, this does not at all suggest to me that cognitive impairment is not present. Dr. SF specifically did not check the box for “no impairment” either, and this is a notable change from when Dr. SF has checked the box for “no impairment” on the same form in 2022, suggesting that Dr. SF’s most recent assessment is that there is cognitive impairment present, but the degree of impairment unclear.

23I find the medical evidence in this case relevant and persuasive. Dr. K would have more than sufficient time with the appellant to arrive at this diagnosis, and is highly qualified to make a diagnosis of cognitive impairment. There is a lack of medical information suggesting that there is no cognitive impairment, although the appellant had the opportunity to gather further medical documentation through his ongoing relationship with Dr SF. Furthermore, I take note that the appellant had a second physician who treated him in hospital for several weeks in 2022, Dr. E, who also arrived a diagnosis of cognitive impairment due to dementia. I find that two different physicians arriving at the same diagnosis of cognitive impairment two years apart after observing the patient for several weeks in hospital to be persuasive evidence. 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 his ability to drive a motor vehicle of the applicable class safely?

24I find that the Registrar has proven on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.

25The Registrar’s position is that the appellant is required to satisfactorily complete a Functional Driving Assessment at one of their approved sites before reinstatement of the driver’s licence would be considered. The Registrar confirmed that the Practical In-Car Driver Evaluation completed June 18, 2024, was not at one of the Registrar’s approved sites, and that the testing at their approved sites is more comprehensive. The Registrar reported that there is an approved testing centre in the city where the appellant resides.

26The Registrar’s position is supported by the results of a Practical In-Car Driver Evaluation. Concerning actions identified in this evaluation include that the appellant had difficulty with judgement regarding space and angle when he rolled over a curb, parked with the front end of the vehicle sticking out from the parking spot, and did not slow down when crossing an aisle in the parking lot. The evaluator further noted the appellant refused to make an effort to check blind spots, did not use his indicator when pulling away from the curb, turned into the incorrect lane and did not take a “wait position” at the light. The conclusion of the evaluation was that the appellant demonstrated “Moderate Risk”.

27The respondent also relies on the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”). Chapter 6 describes cognitive impairment including dementia in general and the concerns with driving safely. In these standards, it states that research clearly indicates that those with dementia are at higher risk for adverse driving outcomes.

28Specifically Standard 6.6.1 states that drivers who are diagnosed with cognitive impairment or dementia 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.

29Section 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 is not bound by them.

30The appellant testified that he is a safe driver and has no limitations on his ability to drive safely. He describes driving extensively during his adult life and never being involved in a car accident. He described the frustration of his driver’s licence being suspended and that while his wife is able to drive, he is a much better driver than her and they both feel more comfortable when he drives. While I have considered the appellant’s testimony, it is not supported by any submitted medical evidence or the evidence of his driving evaluation.

31While the appellant testified twice that has never been in a car accident in his life, he also described that one month after being discharged from hospital he was in a car accident. The car accident resulted in damage to the appellant’s vehicle significant enough that it was no longer functional, requiring him to purchase another vehicle. The appellant testified he was not at fault and was hit by another vehicle traveling too fast.

32Under cross-examination the Registrar asked the appellant why he thinks Dr. SF left the first question on the Cognitive Disorders Form blank which asks for the degree of cognitive impairment present. The appellant responded that his doctor had written on this Form that there is no reason why he should be taken off the road. As this is not documented on the Cognitive Disorder Form, the Registrar asked if this statement was documented elsewhere, and contrary to the evidence, the appellant responded that this was documented on that Form.

33Under cross-examination, the appellant was asked if he planned to complete the Functional Driving Assessment at one of the Registrar’s approved sites. The appellant indicated that while there is a cost, it is not an issue for him, but he will not be taking the test because he does not need to as his “mind is in perfect condition”.

34I considered the appellant’s position that the diagnosis of cognitive impairment will not impact his ability to drive safely. However, this is weighed against:

i. the scientific research that indicates those with dementia are at higher risk of adverse driving outcomes as outlined in the CCMTA Standards;

ii. that the appellant’s treating healthcare provider had enough concern about his driving to recommend he complete a Practical In-Car Driver Evaluation;

iii. the results of the Practical In-Car Evaluation demonstrate his driving ability being at moderate risk; and

iv. that the appellant has not provided a medical opinion or any evidence that suggests or confirms that his condition will not interfere with his ability to drive a motor vehicle of the applicable class safely.

35Although 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.

36I acknowledge the burden that the lack of a driver’s licence is having on the appellant. However, the results of the Practical In-Car Driver Evaluation are concerning as is the appellant’s testimony that he was in a significant car accident just prior to his completion of this evaluation. The medical submissions and oral testimony from the appellant clearly demonstrate that there is concern about how the appellant’s cognitive impairment will affect his ability to drive safely.

37As 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 his ability to drive safely.

Conclusion

38I 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 his ability to drive a motor vehicle of the applicable class safely.

ORDER

39For 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.