Licence Appeal Tribunal File Number: 15584/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:
Jan Wawrzkiewicz
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR: Dr. Erica Weinberg
APPEARANCES:
For the Appellant: Jami Sanftleben, Representative Jan Wawrzkiewicz, Did Not Appear
For the Respondent: Ian Sookram, Representative
HEARD by teleconference: April 9, 2024
OVERVIEW
1Jan Wawrzkiewicz (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (the “Registrar” or the “respondent”) to suspend their Class GM licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) after the Registrar received a report from a treating health care provider that the appellant suffers from a medical condition that may affect their ability to drive 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 a vehicle of the applicable class safely.
3The Registrar takes the position that the appellant suffers from three medical conditions, namely cognitive impairment, peripheral neuropathy and diabetes, that are likely to significantly interfere with their ability to drive a vehicle of the appropriate class safely and that this provides sufficient reason to suspend their licence under s. 47(1)(g) of the Act.
4The appellant appeals the suspension under s. 50(1) of the Act. They deny they suffer from cognitive impairment and deny they suffer from a medical condition which interferes with their 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 ISSUE
6At the commencement of the hearing the appellant’s representative and the respondent appeared but the appellant did not appear. The parties confirmed that the appellant was copied on the April 4, 2024 hearing reminder email sent by the Tribunal.
7The appellant’s representative stated that they: ‘fell out of touch’ with the appellant over the last few weeks; still were the appellant’s representative; and did not know whether or not the appellant wished to continue with the appeal.
8The hearing was paused to allow the appellant’s representative time to reach the appellant and obtain instructions from them.
9Following the resumption of the hearing, the appellant’s representative stated that they were unable to reach the appellant and that they had no instructions from the appellant to withdraw the appellant’s appeal before the Tribunal.
10For the following reasons, I decided to proceed with the hearing in absence of the appellant:
i. the appellant’s representative was present;
ii. the appellant had been copied on the hearing reminder email sent by the Tribunal;
iii. the application is currently 76 days old and has had two previous adjournments. The first adjournment occurred at the case conference and the reason stated for the adjournment in the case conference report and order was to allow the appellant additional time to obtain and submit relevant medical documentation. At the commencement of the hearing on March 7, 2024, the appellant’s representative requested another adjournment of the hearing. I was the adjudicator at the hearing and, as is stated in the Adjournment Order, I granted the adjournment request on the basis that the reason for the second request was neither foreseeable nor avoidable. Specifically, on February 27, 2024 the respondent issued a letter to the appellant citing two additional conditions for which the appellant’s driver’s licence was suspended and requested the completion of two additional Ministry of Transportation forms. The new hearing date was marked peremptory on the appellant to proceed;
iv. no new medical information was submitted by the appellant in the 33 days since the second adjournment; and
v. the appellant’s representative did not request another adjournment of the hearing.
ISSUES
11The issue in this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.
12To resolve that issue, I will address the following questions:
i. Does the appellant suffer from a medical condition, namely cognitive impairment and/or peripheral neuropathy and/or diabetes?
ii. If so, are any likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely?
13The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”
RESULT
14Having 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 their ability to drive a motor 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 a medical condition?
(a) Does the appellant suffer from cognitive impairment?
15The evidence presented at the hearing establishes, on a balance of probabilities, that the appellant suffers from cognitive impairment.
16According to a Police report, on July 19, 2023, the appellant was driving eastbound towards southern Ontario after returning from Alberta, where they pulled onto the shoulder, got their vehicle stuck and was noticed by a passerby who notified the police. The police officer who attended the scene, concerned that the appellant was suffering from a medical condition, escorted the appellant to the closest hospital.
17The Registrar’s position is supported by medical reports authored by Drs. Thacker, Stait-Gardner and Baechler.
18In the medical condition report (“MCR”) dated July 19, 2023, emergency room physician, Dr. Thacker, reported that the appellant suffers from cognitive impairment due to dementia.
19In a September 6, 2023 completed Cognitive Assessment form, Dr. Stait-Gardner, a physician working at Dr. Baechler’s medical office, checked off that the appellant’s primary condition is mild cognitive impairment.
20In a February 11, 2024 MCR, the appellant’s family/treating physician, Dr. Baechler, checked off that the appellant has cognitive impairment due to dementia.
21In the appellant’s Notice of Appeal, they wrote that: they do not have cognitive impairment; they have no problem processing perceptions and information in real time; their regular doctor administered a test; they scored 24 out of 30 on the test; they were told that they failed; and they failed the test due to communication barriers with their doctor rather than any cognitive impairment.
22I prefer the medical information from the healthcare professionals mentioned above over the appellant’s written statement and find, on a balance of probabilities, that the appellant suffers from cognitive impairment. The named doctors are all qualified to make such a diagnosis and determine whether the appellant suffers from that condition. As a licenced and duly qualified physician in the province of Ontario, I know that there are two main in-office tests for cognitive screening, those being the Mini Mental Status Exam (“MMSE”) and the Montreal Cognitive Assessment (“MoCA”). I know that both of these tests have a maximum score of 30 and that a score of 24 on either test is considered to be a sign or indicator of mild cognitive impairment. I take notice of these facts pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”).
23I assign less weight to the appellant’s written evidence that they do not have cognitive impairment and that there was a communication barrier with their doctor when they administered the cognitive screening test. I prefer the healthcare professionals’ objective, medically supported assessments over the appellant’s subjective self-assessment.
24I find that the Registrar has established on a balance of probabilities that the appellant suffers from cognitive impairment. Accordingly, the Registrar has established that the appellant suffers from one of the three medical conditions alleged.
(b) Does the appellant suffer from peripheral neuropathy?
25The evidence presented at the hearing establishes, on a balance of probabilities, that the appellant suffers from a medical condition, namely peripheral neuropathy.
26The Registrar’s position is supported by the medical report completed by Dr. Baechler.
27In the MCR submitted following the case conference, Dr. Baechler also reported under ‘Motor or Sensory Impairment’ that the appellant suffers from motor or sensory impairment due to peripheral neuropathy.
28The appellant was not present at the hearing to provide any evidence regarding peripheral neuropathy.
29I accept Dr. Baechler’s medical opinion as fact, as Dr. Baechler submitted the MCR in compliance with s. 203(1) of the Act.
30I find that the Registrar has established on a balance of probabilities that the appellant suffers from peripheral neuropathy. Accordingly, the Registrar has established that the appellant suffers from two of the three medical conditions alleged.
(c) Does the appellant suffer from diabetes?
31The evidence presented at the hearing establishes, on a balance of probabilities, that the appellant suffers from a medical condition, namely diabetes.
32In the MCR, Dr. Baecher also reported that the appellant’s peripheral neuropathy was due to diabetes. Furthermore, in another section of the MCR Dr. Baecher wrote, “[two] 2 episodes of unconsciousness while driving due to hyperglycemia”.
33As a licenced and duly qualified physician in the province of Ontario, I know that diabetes is a chronic and progressive disease characterized by hyperglycemia or high blood sugar. I take notice of these facts pursuant to s. 16(b) of the SPPA.
34The appellant was not present at the hearing to provide any evidence regarding diabetes.
35I accept Dr. Baechler’s medical opinion as fact, as Dr. Baechler submitted the MCR in compliance with s. 203(1) of the Act.
36I find that the Registrar has established on a balance of probabilities that the appellant suffers from diabetes. Accordingly, the Registrar has established that the appellant suffers from all the three medical conditions alleged.
Is or are the appellant’s medical condition(s) likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely?
37I find that the Registrar has proven on a balance of probabilities that the appellant’s medical conditions individually or combined are likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.
Is the appellant’s medical condition of cognitive impairment likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely?
38I find that the Registrar has proven on a balance of probabilities that the appellant’s condition of cognitive impairment is likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.
39The Registrar’s representative argues that cognitive problems can have a direct effect upon fitness to drive and the Registrar requires confirmation of a satisfactory functional driving assessment at an approved functional assessment centre in order to determine whether the appellant can safely operate a motor vehicle. In the completed cognitive disorder form, Dr. Stait-Gardner checked off that, in their opinion, the appellant required a functional driving assessment. Furthermore, the Registrar’s representative read the addendum in Dr. Thacker’s admission note which reads, “I spoke with Jan’s caregiver…He has been missing for 3 days, previous history of the same 1 year ago. He has a history of dementia and had a MVC [motor vehicle collision] 24 hours ago in Alberta, now in … emergency department via police escort. His licence will be suspended due to cognitive impairment.” I acknowledge that this is hearsay evidence and recognize that despite having the discretion to admit hearsay evidence, tribunals must be cautious in doing so given that hearsay evidence can be inherently unreliable. However, in this case I accept the hearsay evidence of Dr. Thacker. Dr. Thacker was acting under their duty as an emergency room physician and would have taken contemporaneous notes of their interactions with the appellant, police and any person they spoke to who knew the appellant well.
40Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”), when determining whether the requirements of s. 14(1) are met. The Tribunal may take the CCMTA Standards into consideration, although they are not binding on the Tribunal.
41The Registrar relies on the CCMTA Standards, in particular Chapter 6.6.1 (Cognitive Impairment or Dementia) which states that drivers with cognitive impairment are eligible for any class of licence 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; and conditions for maintaining a licence are met.
42In their Notice of Appeal, the appellant argued that they neither have cognitive impairment nor problems processing perceptions or information in real time.
43While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.
44Although I am not bound by the CCMTA Standards, I find them reasonable.
45Given the evidence and submissions, I am persuaded to apply the CCMTA Standards in the circumstances of this case.
46I accept the safety concerns set out in Chapter 6 of the CCMTA Standards, which include:
i. 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;
ii. no in-office test or battery of tests, including global cognitive screens such as a MMSE or MoCA have sufficient sensitivity or specificity to be used as the sole determinant of driving fitness in all cases;
iii. abnormalities in these tests indicate a requirement for further testing and 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 or directly to the licensing authority;
iv. functional driving assessment is usually the most appropriate means of assessing the effects of cognitive impairment upon driving unless severe dementia has been demonstrated; and
v. cognitive impairment may result in a persistent impairment in driving and these drivers are not able to compensate for this functional impairment.
47I assign limited weight to the appellant’s written statement that they do not have problems processing perceptions nor information in real time. As previously stated, the appellant’s caregiver informed Dr. Thacker that the appellant had been missing for three days and had a motor vehicle collision in Alberta during this time period. Furthermore, based on the evidence and submissions, I find on a balance of probabilities, that the appellant lacks insight into their condition of cognitive impairment. Insight means that a driver: is aware of their medical condition; understands how the condition may impair their functional ability to drive; and has the judgment and willingness to comply with their treatment regime and any conditions of licensing. Insight is an important consideration when determining fitness to drive.
48I accept the respondent’s and Dr. Stait-Gardner’s position that further testing or investigations, in this case a satisfactory functional driving assessment at an approved functional driving centre, should be submitted is reasonable keeping in mind public road safety.
49I am satisfied on a balance of probabilities that the appellant’s medical condition, namely cognitive impairment, is likely to significantly interfere with their ability to drive a vehicle of the appropriate class safely.
Is the appellant’s medical condition of peripheral neuropathy likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely?
50I find that the Registrar has proven on a balance of probabilities that the appellant’s condition of peripheral neuropathy is likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.
51The respondent’s representative argued that the Act requires that certain healthcare professionals, such as physicians, report to the Ministry of Transportation patients age 16 or over who have certain medical or visual conditions that may make it dangerous to drive and that Dr. Baechler submitted the MCR in compliance with s. 203(1) of the Act. They further argued that, according to the MCR and the Act, Dr. Baechler was of the opinion that the appellant’s ‘motor or sensory impairment’, a ‘condition or disorder resulting in severe motor impairment that effects: coordination, muscle strength and control, flexibility, motor planning, touch or positional sense’ due to ‘peripheral neuropathy secondary to diabetes’ may make it dangerous to drive.
52As a licenced and duly qualified physician in the province of Ontario, I know that diabetic peripheral neuropathy is a chronic complication of diabetes. I take notice of this fact pursuant to s. 16(b) of the SPPA.
53Chapter 7.4 (Effect on functional ability to drive) states that for individuals with diabetes, both acute and chronic complications of the disease may affect fitness to drive.
54Furthermore, I know that diabetic peripheral neuropathy can cause both sensory and/or motor symptoms (e.g., burning, tingling, pins and needles, numbness, etc.) and typically occurs in a ‘stocking and glove’ pattern (i.e., lower parts of both feet/legs and hands). Furthermore, I know that this neurological condition can affect a driver’s ability to feel or find the gas or brake pedal, can affect a driver’s ability to maintain proper grip on a steering wheel, can cause a driver to brake more suddenly or accelerate more rapidly than normal, in addition to potentially altering a driver’s speed of movement, range of motion, strength and coordination of the affected limbs. As a licenced and duly qualified physician in the province of Ontario, I take notice of this information pursuant to s. 16(b) of the SPPA.
55Moreover, I take note that Chapter 12.6.1 (Neurological disorder) of the CCMTA Standards states that all drivers are eligible for a licence if: range of motion, strength and coordination are sufficient to perform the functions necessary for driving; cognitive functions necessary for driving are not impaired; any pain associated with the condition, and any drugs used to treat the condition, do not impair the functional abilities necessary for driving; where required, a road test or other functional assessment indicates that the driver is able to compensate for any loss of functional ability necessary for driving; and the conditions for maintaining a licence are met.
56Based on the above, I am satisfied on a balance of probabilities that the appellant’s medical condition, namely peripheral neuropathy, is likely to significantly interfere with their ability to drive a vehicle of the appropriate class safely.
Is the appellant’s medical condition of diabetes likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely?
57I find that the Registrar has proven on a balance of probabilities that the appellant’s condition of diabetes is likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.
58The respondent’s representative argued that in the MCR Dr. Baechler wrote, “[two] 2 episodes of unconsciousness while driving due to hyperglycemia”. They also stated that Dr. Baechler wrote this information in the MCR under ‘Sudden Incapacitation’, which according to the MCR is “a disorder that has a moderate or high risk of sudden incapacitation, or that has resulted in sudden incapacitation and that has a moderate or high risk of recurrence”. Furthermore, the respondent’s representative stated that in the Discretionary Section of the MCR, Dr. Baechler wrote, “cognitive impairment limits patient’s ability to adequately manage his diabetes”.
59In addition, the respondent’s representative referred to Chapter 7.3 (Diabetes and adverse driving outcomes) of the CCMTA Standards which states, “there is clear evidence to show that both non-commercial and commercial drivers with diabetes are at an increased risk of motor vehicle crashes”.
60I note that Chapter 7.4 (Effect on functional ability to drive) of the CCMTA Standards states that hyperglycemia may cause blurred vision, confusion and eventually diabetic coma, and that these are considered transient impairments.
61As a licenced and duly qualified physician in the province of Ontario, I know that a hyperosmolar hyperglycemic state (“HHS”) is a serious and potentially life-threatening complication of diabetes, particularly Type 2 diabetes. HHS happens when blood sugar levels are very high for a long period of time, leading to severe dehydration and confusion. I take notice of this information pursuant to s. 16(b) of the SPPA.
62Based on the above, I am satisfied on a balance of probabilities that the appellant’s medical condition, namely diabetes, is likely to significantly interfere with their ability to drive a vehicle of the appropriate class safely.
Conclusion
63I find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant suffers from cognitive impairment and peripheral neuropathy and diabetes, which individually or combined are likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.
ORDER
64For 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.
Released: April 19, 2024
__________________________
Erica Weinberg
Adjudicator