Barbara Robillard v. Registrar of Motor Vehicles, 2024 CanLII 81204

Licence Appeal Tribunal

Date: 2024-08-14

Appeal under section 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 driver’s licence under subsection 47(1) of the Act.

Between:

Barbara Robillard

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Adjudicator: Dr. Peter Savage, Member

Appearances:

For the Appellant: Barbara Robillard, Self-Represented

For the Respondent: Sharon Nelson, Agent for the Registrar

Heard by Teleconference: August 14, 2024

REASONS FOR DECISION AND ORDER

A. OVERVIEW:

1On January 27, 2024, the Registrar of Motor Vehicles (the “Registrar”) suspended the appellant’s Class G licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), after receiving a report from a nurse practitioner that the appellant suffers from a cognitive impairment condition likely to significantly interfere with her ability to drive safely. The appellant appeals the suspension and asks the Tribunal to reinstate her licence.

2Having considered all the evidence and for the reasons that follow, the Tribunal affirms the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.

B. ISSUES:

3The issue in this appeal is whether the appellant suffers from a medical condition, specifically cognitive impairment, which is likely to significantly interfere with her ability to drive a vehicle safely.

4To answer that issue, I will address the following questions:

a. Does the appellant suffer from a medical condition?

b. If the appellant suffers from a medical condition, is it likely to significantly interfere with his ability to drive a vehicle safely?

C. LAW:

5Under the HTA the Registrar is responsible for ensuring that drivers are medically fit to drive vehicles on the highway. In this case, the Registrar acted pursuant to s. 47(1) of the HTA and s. 14(1)(a) of O. Reg. 340/94 under the HTA (the “Regulation”).

6Under s.14(2)(b) of the Regulation, the Registrar may require a driver to provide satisfactory evidence that he or she is able to drive safely.

7A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.

8On appeal, the Registrar has the burden of establishing, on a balance of probabilities, that the appellant’s ability to drive safely is likely to be significantly affected by a medical condition.

9Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

D. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from a medical condition?

10The Registrar alleges that the appellant suffers from a mental health condition based on the unsolicited medical condition report of nurse practitioner Megan Maloney and the cognitive function questionnaire also completed by Ms. Maloney. The Registrar confirms the condition was brought to the Ministry’s attention through an unsolicited medical report submitted January 11, 2024, by Ms. Maloney, the appellant’s nurse practitioner.

11The unsolicited medical report submitted January 11, 2024, states the appellant is suffering from dementia diagnosed by MoCA and trails testing (clinical tests to assess cognition).

12Ms. Maloney refined her diagnosis in the cognitive function questionnaire and noted the appellant suffered from mild to moderate cognitive impairment and noted her MoCA test score had improved from 18/30 to 24/30 (a score of 18-24 is accepted to be in the mild to moderate cognitive impairment range). Ms. Maloney recommended the appellant undergo further testing and recommended a functional driving assessment to assess the appellant’s driving ability and safety to drive.

13The appellant testified she did not feel she was cognitively impaired. She noted her MoCA score had improved since initial testing in January 2024.

14The appellant argued she was preforming the activities of daily living well and looked after others in the community. The appellant testified anyone who knew her would know she was not cognitively impaired in any way.

15The appellant presented no medical evidence.

16The only medical evidence presented supports the conclusion that the appellant suffers from a mild to moderate cognitive impairment.

17On a balance of probabilities, I find the Registrar has established the appellant has a medical condition namely mild-moderate cognitive impairment.

b. If the appellant suffers from a medical condition, is it likely to significantly interfere with his ability to drive a vehicle safely?

18The Registrar has the burden of establishing that the appellant’s medical condition is likely to significantly interfere with her ability to drive a motor vehicle safely. I find that the Registrar has met that burden.

19The Registrar drew my attention to the Canadian Council of Motor Transport Administrators (CCMTA) Medical Standards for Drivers (CCMTA Standards). The CCMTA standards were developed by North American road safety experts and may be considered by both the Registrar and the Tribunal, though they are not binding.

20The Registrar pointed out the dangers that cognitive impairment could cause while driving. The Registrar outlined the CCMTA Standards’ requirements for licence reinstatement of a person with mild-moderate cognitive impairment. The CCMTA pointed out that clinical testing alone was insufficient to assess ability to drive when mild-moderate cognitive impairment is in issue. The CCMTA suggested a functional driving test is needed to assess the effect the cognitive impairment has on the individual’s driving ability.

21The Registrar made the following submissions with respect to how the appellant’s condition affects her ability to drive safely:

1. The appellant’s condition is confirmed by a treating nurse practitioner.
2. The appellant has failed to provide medical evidence disputing the diagnosis of cognitive impairment.
3. The Registrar submits that the appellant has a limited understanding of her condition and the possible risks associated with cognitive impairment.
4. The attending physician has not recommended a return to driving and has recommended a functional driving assessment.
5. The appellant does not meet the requirements for re-licencing under the CCMTA Standards in that she has not undergone a functional driving assessment as recommended by her nurse practitioner.

22The appellant maintains she is a safe driver, has a safe driving record and argues that there is no reason for her licence suspension.

23The appellant testified she had been driving for many years and had no history of accidents and pointed to her driving record from the Ministry of Transportation.

24The appellant argued that she was under a lot of stress at the time of her initial MoCA test. She had been subjected to verbal and physical abuse at the hands of her partner. Her daughter took her to the nurse practitioner and told the nurse practitioner that her mother had dementia. The appellant argued that the nurse practitioner took her daughter’s side and unfairly diagnosed dementia.

25The appellant testified the nurse practitioner was aware the appellant wanted to regain her driver’s licence and later repeated the MoCA test and her score had improved. The nurse practitioner recommended a functional driving test, but the appellant felt this was not needed.

26The appellant testifies she felt she was the victim of elder abuse at the hands of the nurse practitioner.

27The appellant testified that, while she is sure she would easily pass a functional driving assessment, it would be emotionally distressing and a large financial burden. She argued the functional driving test was not necessary.

28The appellant testified she knew when things were not right, and she had refrained from driving when she felt unwell.

29The appellant testified she was looking after day-to-day affairs and on her own had sold her residence in Florida and cancelled heat, hydro, and credit cards related to that residence and her former partner. She argued these actions proved she did not have dementia or Alzheimer’s disease.

30I find the appellant testifies in an open and clear manner and I find no evidence the appellant suffers from dementia or Alzheimer’s disease. However, I find the evidence supports the Registrar’s submissions that the appellant has a mild-moderate cognitive impairment. The appellant’s nurse practitioner recommends a functional driving assessment and the CCMTA Standards makes the same recommendation when a cognitive impairment is in issue. The appellant has not agreed to have this assessment done, although she testifies that she believes she would pass the functional driving assessment easily. The appellant’s nurse practitioner does not support a return to driving without such an assessment. I agree with application of the CCMTA Standards in this case. The risks to driving with mild-moderate cognitive impairment are significant and I agree this appellant needs to undergo a functional driving assessment before consideration of relicensing is considered.

31I find, on a balance of probabilities, that the appellant’s medical condition is likely to significantly interfere with her ability to drive a vehicle safely.

E. ORDER:

32For the reasons set out above, pursuant to subsection 50(2) of the HTA, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.