Licence Appeal Tribunal File Number: 15657/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:

Samir Qubti

Appellant

And

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Dr. Peter Savage, Member

Dr. Kailey Minnings, Member

APPEARANCES:

For the Appellant:

Samir Qubti, Self-Represented Christine Linsley, Daughter-in-law and Support Person of the Appellant

For the Respondent:

Sharon Nelson, Representative

Heard by Teleconference:

April 18, 2024

OVERVIEW

1Samir Qubti (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 a report from a treating health care provider that the appellant suffers from a medical condition that may affect their 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 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 a cognitive impairment, that is likely to significantly interfere with their ability to drive 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 to the Licence Appeal Tribunal (the “Tribunal”). They deny that they suffer from a cognitive impairment.

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

6Christine Linsley was introduced as the daughter-in-law of the appellant and her role as a support person, not a witness, was clarified. The Registrar accepted this.

ISSUES

7The 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 safely.

8To resolve that issue, we will address the following questions:

i. Does the appellant suffer from a cognitive impairment?

ii. If so, is this likely to significantly interfere with their ability to drive a motor vehicle safely?

9The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”

RESULT

10Having considered all the evidence and submissions and for the reasons that follow, we 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 safely and we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from a cognitive impairment?

11The evidence presented at the hearing establishes that the appellant suffers from a medical condition, namely a cognitive impairment.

12The Registrar’s position that the appellant suffers from a cognitive impairment is supported by medical reports completed by 3 healthcare professionals. These were:

i. Dr. Derek Pereira, a hospitalist physician, in their unsolicited Medical Conditions Report (“MCR”) dated July 12, 2022. Dr. Pereira checked off “Cognitive Impairment, Unknown” and goes on to write “Scored 19/30 on MOCA [Montreal Cognitive Assessment]. Further testing recommended. Pt [patient] elected to leave hospital AMA [against medical advice]. OT [occupational therapist] had concerns re: suitability to drive.”

ii. Dr. C. Devaraj, a geriatrician, in their Cognitive Disorder form dated November 3, 2022. Dr. Devaraj checked off “Mild Cognitive Impairment/ Mild Dementia”

iii. Janice Yeung, an occupational therapist, in a Functional Driving Assessment form (FDA) dated April 6, 2023. Ms. Yeung states that the appellant scored below normal limits on most cognitive/perceptual tests, including MOCA, and makes note of cognitive deficits and decreased insight contributing to the appellant’s presentation as a collision risk during the road test portion of the functional driving assessment.

13The appellant’s position is that he was never diagnosed with dementia and that no cognitive testing was done during his July 2022 hospitalization.

14The appellant points to the following medical reports to support his position:

i. A consultation note and MCR from Dr. Vesna Page, geriatrician, dated July 27, 2023. In her consultation note, Dr. Page writes, “No evidence of dementia. Cognitive findings related to hearing, have advised hearing aids. If passes road test, I would feel comfortable with him driving. His risk factors are all managed except hearing...” and refers to an attached MOCA with a score of 27/30. On an attached MCR form, Dr. Page states there are no cognition issues and gives an opinion that delirium in the past and decreased hearing may have contributed to the findings. Dr. Page goes on to recommend another functional driving assessment.

ii. Dr. Hashim Al Sodani, family physician, in their letter dated Oct 25, 2023. Dr. Al Sodani writes, “Patient is currently fully conscious physically and mentally. Functions normal.” The letter refers to Dr. Page’s assessment and states: “mental tests done shows no evidence of dementia.”

15We note that while Dr. Page did not find evidence of dementia or cognition issues on the day of her assessment, she does refer to “cognitive findings related to hearing”. While we acknowledge that there was improvement in his MOCA scores since his hospitalization in July 2022, we prefer the collective evidence from Dr. Pereira, Dr. Devaraj, Ms. Yeung and the FDA as it represents several different assessments spanning many months, compared to the one-time assessment by Dr. Page. We find, on a balance of probabilities, that the appellant does have a cognitive impairment.

16The appellant denies that he suffers from dementia. We find, however, that the appellant does not demonstrate understanding of the distinction between dementia and cognitive impairment. We take notice that cognitive impairment is an intermediate state between normal cognition and dementia, in which there are objective cognitive impairments without decline in overall level of function. We take notice of this generally recognized information within our specialized knowledge as licensed physicians, as permitted by s. 16 of the Statutory Powers Procedure Act.

17We find that the Registrar has established on a balance of probabilities that the appellant suffers from a cognitive impairment.

Is the appellant’s medical condition likely to significantly interfere with their ability to drive a motor vehicle safely?

18We 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.

19The Registrar relies on the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”), Chapter 6 in their argument that the cognitive impairment interferes with the appellant’s ability to drive safely.

20Section 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.

21The Registrar submits that, as per the CCMTA Chapter 6:

i. Cognitive problems often have a direct effect on fitness to drive;

ii. drivers with cognitive impairment are not able to compensate for their functional impairment;

iii. the effects of mild cognitive impairment may be subtle and difficult to assess in an office setting;

iv. judgement and insight are important for driving, yet the usual battery of tests used to assess the extent of cognitive limitations do not evaluate these functions; and

v. a functional driving assessment is usually the most appropriate means to assessing the effects of cognitive impairment upon driving unless severe dementia has been demonstrated.

22The CCMTA Standards recommend that a driver who has been diagnosed with cognitive impairment be considered eligible for a licence if a complete medical assessment indicates cognitive functions necessary for driving are not impaired, or functional driving assessment shows condition does not affect ability to drive.

23The appellant argues that the alleged cognitive impairment does not impact his ability to drive safely. He testified that he believes himself to be a safe and competent driver and does not understand why the Registrar has not reinstated his licence.

24The appellant testified that he attempted and failed a functional driving assessment on two occasions, in December 2022 and in April 2023. The FDA form is not available from the December 2022 test. He minimizes and/or does not recall the events that are documented on the April 6, 2023 FDA, including: failure to observe signs and speedbumps requiring brake intervention to slow down; difficulty determining right of way; unaware when straddling/severe drifting in lane; gas/brake confusion; unreliable acceleration vs stopping that interfered with other road users and received one honk. The appellant testified that, aside from not noticing the speedbumps, he thought he did well on the test and was surprised when he did not pass. The appellant further testified that he is unwilling to undergo another functional driving assessment.

25We take note that no doctor has certified the appellant as safe to drive in any of their reports. Contrarily, Drs. Devaraj and Page, geriatricians, both indicate that the appellant requires a functional driving assessment.

26Furthermore, we note that Dr. Page’s July 27, 2023 assessment states “cognitive issues related to hearing, have advised hearing aids”. The appellant testified that he has not yet obtained any hearing aids. He further testified that he does not drive at night due to concerns around his vision.

27For the above reasons, we find the appellant demonstrates little to no insight into the condition of cognitive impairment and how it might affect his ability to drive safely.

28We are satisfied on a balance of probabilities that the appellant’s medical condition of cognitive impairment is likely to significantly interfere with his ability to drive safely. We find the CCMTA Standard, chapter 6.6.1 is reasonable and relevant to the appellant, and we apply it here. Although the medical evidence suggests some improvement in his condition (as demonstrated by improved MOCA score), we are in agreement with the Registrar, the CCMTA standard 6.6.1, and his two geriatrician specialists, that a functional road test supervised by a qualified Occupational Therapist is the best way to assess his ability to drive safely. As he has not passed a functional road test, we find that reinstating the appellant’s Class G licence would present a significant risk to the safety of the appellant, his potential passengers, and others using the roadways.

Conclusion

29We find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely a cognitive impairment, that is likely to significantly interfere with his ability to drive a motor vehicle safely.

ORDER

30For 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’s licence.