Licence Appeal Tribunal File Number: 15370/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:

Robert Day

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Dr. Isla McPherson, Member

APPEARANCES:

For the Appellant: Robert Day, Appellant

For the Respondent: Stephen Grootenboer, Agent

Held by teleconference: December 12, 2023

OVERVIEW

1Robert Day (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 family physician 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 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 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.

PRELIMINARY ISSUES

6The Registrar had requested the submission of a two-page Cognitive Disorder form in their letter dated July 14, 2022.

7The appellant had submitted the first page only, unsigned and undated.

8At the Case Conference on November 28, 2023 the appellant indicated he would submit the second page of the Cognitive Disorder Form.

9The respondent reached out to the appellant via email December 8, 2023, four days prior to the hearing, as a reminder that the second page of the Cognitive Disorder Form had not yet been submitted.

10During the hearing, the respondent raised the question as to whether the appellant had submitted this second page of the Cognitive Disorder Form as a preliminary matter.

11The appellant indicated he had submitted both pages of the Cognitive Disorder Form. However, the appellant could provide no confirmation of when, how or to whom it was submitted. The appellant was given an opportunity to look for the completed form during the hearing, but he was unable to locate the form.

12The Tribunal confirmed that the second page of the Cognitive Disorder Form had not been received.

ISSUES

13The 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 safely.

14To 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 motor vehicle safely?

15The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”

RESULT

16Having 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 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?

17The evidence presented at the hearing establishes that the appellant suffers from a medical condition, namely cognitive impairment.

18The Registrar’s position is supported by:

i. a Medical Condition Report dated July 8, 2022 from Dr. Kreuzer;

ii. a Consultation Note dated June 8, 2022 from Dr. Brymer; and

iii. a Consultation Note dated October 20, 2022 also from Dr. Brymer.

19The Medical Condition Report submitted by the appellant’s family physician, Dr. Kreuzer, dated July 8, 2022, supports the respondent’s position that the appellant suffers from cognitive impairment. Dr. Kreuzer’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.

20Following the submission of the Medical Condition Report, the Registrar suspended the appellant’s driver’s licence in a letter dated July 14, 2022, and requested the completion of a Cognitive Disorder Form.

21The Consultation Notes by Dr. Brymer submitted by the appellant further support the respondent’s position that the appellant suffers from cognitive impairment. The respondent notes that Dr. Brymer has documented on June 8, 2022: “more irritable, worse memory / function” and “recheck in October…no driving until then”. The October 20, 2022, document from Dr. Brymer states: “mild memory problems still there”, and then records the appellant is booked for an appointment in February for further memory testing.

22The respondent acknowledges that the most up to date medical submission was dated over a year ago. It is acknowledged that the medical information establishes a baseline at the time that it was recorded. Under s. 16(b) of the Statutory Powers Procedure Act, as a duly licenced physician, I understand that the progressive deterioration in cognitive functioning that is typical of dementia means it is unlikely for an affected driver to improve their cognitive abilities to the point that they are no longer living with cognitive impairment. It was open to the appellant to have provided evidence his course of dementia defied this typical medical trend.

23As stated in the preliminary issues, the first page of the requested two-page Cognitive Disorder Form was submitted. The respondent drew attention to the fact that the Form was unsigned, undated and provided contradictory medical information. Specifically, a box was checked on the Form indicating that there was no cognitive impairment and the patient had not completed a functional driving assessment within the last 6 months. However, another box was checked on the Form indicating that the results of the functional driving assessment demonstrated that driving lessons were recommended for the appellant.

24Given the conflicting information submitted on the Cognitive Disorder Form, the respondent suggested the Form was not completed by a physician and questioned the appellant as to whether he had completed the Form himself. The appellant denied completing the Form and testified his family physician had completed the Form. As the Form is unsigned, undated and contains contradictory information about a functional driving assessment, it does not appear to be a reliable piece of evidence.

25The appellant does not agree that he has cognitive impairment but acknowledges that he has been given this diagnosis by his physicians, Dr. Kreuzer and Dr. Brymer. The appellant’s response to whether he believes he has cognitive impairment is: “he [Dr. Kreuzer] says I did” and “they say it is there, not a big dementia, but it is there”. The appellant’s testimony that his physicians have diagnosed him with dementia supports the respondent’s position that he suffers from cognitive impairment.

26The appellant testified that he is “proud to have my wits about me”. No further testimony or medical evidence was provided disputing the diagnosis of cognitive impairment and supporting the appellant’s position that he does not have cognitive impairment.

27The medical evidence before the Tribunal in the form of three medical submissions completed by the appellant’s family physician and geriatrician over the course 4 months clearly document a diagnosis of cognitive impairment or its primary signs and symptoms, supporting the Registrar’s position.

28While the appellant admits that his treating physicians have informed him that he has cognitive impairment, he does not agree with the diagnosis, but has not provided any medical evidence to dispute the diagnosis. The single page Cognitive Disorder Form is not given weight as it provides conflicting information, is unsigned and undated. Furthermore, the appellant was given ample time to submit the second page of the Form following the Case Conference, was reminded to submit the Form four days prior to the hearing and cannot account for why the Form was not submitted other than to testify that it was submitted, although not received by the respondent nor the Tribunal.

29I find the medical evidence in this case relevant and persuasive. I acknowledge that the physicians who submitted this medical information are well known to the appellant and highly qualified to make a diagnosis of cognitive impairment. 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 safely?

30I 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 safely.

31The two consultation notes from geriatrician Dr. Brymer support the respondent’s position that the appellant suffers from cognitive impairment to the extent that it will interfere with his ability to drive safely. Consultation Note dated June 8, 2022, from Dr. Brymer references that the appellant should return to his clinic in October 2022 for a re-check and clearly states: “No driving until then”. The second Consultation Note from the same Dr. Brymer dated October 20, 2022 states: “I think you should do driveable ($600) at Parkwood”. The appellant acknowledged that Parkwood is a site where functional driving assessments are completed.

32The 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.

33Specifically 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.

34Section 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.

35The 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 describes the frustration and hardships he has been coping with in light of his driver’s licence being suspended. While I have considered the appellant’s testimony, it is not supported by any submitted medical evidence.

36The appellant testified that Dr. Brymer had told him that his driver’s licence should never have been suspended. It is not clear from the appellant’s testimony when Dr. Brymer would have shared this information. This testimony is not supported by the medical submissions that the appellant has provided from Dr. Brymer.

37The appellant also testified that he was told by Dr. Brymer he could complete a functional driving assessment through DriveABLE at Parkwood, but at the cost of $600, he had no interest in completing the functional driving assessment.

38The appellant testified that Dr. Brymer has now retired, and the appellant described having a follow up appointment at the same Specialized Geriatric Services clinic with a female healthcare practitioner named Corina McCormack on May 15, 2023. The appellant testified that this healthcare practitioner advised him that he had mild cognitive impairment, and he should be assessed for hearing aids, reach out to the Alzheimer’s Society for resources and support, and she would refer him for an on-road driving assessment. The appellant’s testimony that another healthcare provider has recommended him for a driving assessment supports the respondent’s position that his cognitive impairment is likely to significantly affect his ability to drive safely.

39I 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 providers have recommended he complete a functional driving assessment on more than one occasion; and

iii. 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 safely.

40Although 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.

41I acknowledge the burden that the lack of a driver’s licence is having on the appellant. However, the recommendations of more than one healthcare provider to obtain a functional driving assessment clearly demonstrates that there is concern about how the appellant’s cognitive impairment will affect his ability to drive safely.

42As 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

43I 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 safely.

ORDER

44For 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.