Licence Appeal Tribunal File Number: 16125/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:
Margaret Cooney
Appellant
and
Registrar of Motor Vehicles
Respondent
DECISION
ADJUDICATOR: Dr. Erica Weinberg
APPEARANCES:
For the Appellant: Margaret Cooney, Appellant Diane Bihuniak, Daughter and Representative
For the Respondent: Sharon Nelson, Representative
HEARD by teleconference: August 27, 2024
OVERVIEW
1Margaret Cooney (the "appellant") appeals from the decision of the Registrar of Motor Vehicles (the "Registrar" or the "respondent") to suspend their 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 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 a condition, namely cognitive impairment, that is 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. The appellant's witness, Barbara Smith, who is also the appellant's daughter, acknowledges that the appellant suffers from cognitive impairment but denies that the appellant suffers from a medical condition which interferes with the appellant's 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.
ISSUES
6The 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.
7To resolve that issue, I will address the following questions:
i. Does the appellant suffer from a medical condition, namely cognitive impairment?
ii. If so, is this likely to significantly interfere with their ability to drive a motor 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 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 cognitive impairment?
10The evidence presented at the hearing establishes, on a balance of probabilities, that the appellant suffers from cognitive impairment.
11According to a Police report, on May 4, 2024, the appellant was involved in an incident/collision. Police officer Lazar wrote, "driver got out of her vehicle to get her purse from the trunk after she had put the vehicle in reverse. She was dragged [a] short distance before her vehicle struck a wall of a building. She was found by police laying on the ground and her right leg pinned between the driver's door and the frame of the vehicle".
12By letter dated May 6, 2024, the Ministry of Transportation ("Ministry") required that the appellant's treating physician provide the details of the circumstances leading to the reported incident/collision, details of residual deficits and the completion of three Ministry forms.
13The Registrar's position is supported by the Ministry forms completed on May 16, 2024 by the appellant's family physician, Dr. Barwell.
14In the Musculoskeletal Condition form, Dr. Barwell wrote that the appellant suffered skin abrasions due to the accident and has no sprain or any significant musculoskeletal injury that affects driving.
15In the Cognitive Disorder form, Dr. Barwell checked off that the appellant has mild cognitive impairment and requires a functional driving assessment. In the 'Comments' section Dr. Barwell wrote, "patient has been diagnosed with mild cognitive decline in November 2023; MoCA [Montreal Cognitive Assessment] 24/30 at that time".
16In a Medical Report form, Dr. Barwell wrote that the appellant "has mild dementia, MoCA 24/30; requires driving assessment to determine competency to drive".
17As a licenced and duly qualified physician in the province of Ontario, I know that the MoCA is a validated, in-office cognitive screening tool that measures various cognitive domains including short term memory, visuospatial abilities, executive functions, attention, concentration and working memory, language and orientation to time and place. In addition, I know that a MoCA score of 26 and above is considered normal. I take notice of these facts pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.
18The appellant's witness testified that the appellant has mild cognitive impairment.
19I 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 their ability to drive a motor vehicle of the applicable class safely?
20I find that the Registrar has proven on a balance of probabilities that the appellant's medical condition is likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.
21By letter dated May 22, 2024, the Registrar wrote that in order to determine whether the appellant can operate a vehicle safely, they required a satisfactory functional driving assessment from an approved Functional Assessment Centre.
22The appellant completed a functional driving assessment on June 24, 2024.
23On July 2, 2024, Dr. Barwell completed a Medical Condition Report. In this report, Dr. Barwell checked off that the appellant had cognitive impairment due to dementia.
24By letter dated July 8, 2024 the Registrar suspended the appellant's driver's licence, effective July 18, 2024.
25The Registrar's representative argues that cognitive problems can have a direct effect upon fitness to drive.
26Section 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.
27The 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.
28The Registrar's representative referred to the written report from the appellant's functional driving assessment on June 24, 2024, and highlighted:
From the 'pre-driving clinical findings':
i. the appellant lacked insight into the reason for referral;
ii. the appellant scored below normal limits in all cognitive/perceptual in-clinic skills tests;
iii. MoCA 16+/30 with errors in visuospatial/executive, naming, attention, language, abstraction and delayed recall; and
iv. difficulty with following and/or processing instructions; repetition often required.
From the 'on-road assessment':
i. skill deficit/not functional for driving for awareness of driving environment (i.e., insufficient awareness, observation errors and lack insight deficits);
ii. skill deficit/not functional for driving based on the Occupational Therapist's on-road score (i.e., critical/safety errors in driving consistent with cognitive deficit);
iii. skill deficit/not functional for driving based on the driving instructor's on-road score (i.e., demonstrated critical/safety errors; presents as high collision risk); and
iv. driving not recommended/deficits in functional driving skills.
From the 'Additional Comments' section:
i. demonstrated errors included: failed to observe sign and slow for speed bump x2 (twice); failed to observe other vehicle's right of way requiring driving instructor brake intervention to prevent collision; unaware when made left turn to wrong side of traffic island into oncoming traffic requiring driving instructor steer intervention to prevent potential collision with oncoming car; and highway portion aborted for safety reasons;
ii. due to cognitive deficits and lack of insight into errors, not a driver rehabilitation candidate;
iii. advised not to drive as today's performance places her at high risk of collision; and
iv. client and daughter did not agree with validity of findings or magnitude of errors requiring driving instructor steer/brake intervention (blamed novel roadways and cited clean driving record).
29The appellant's witness stated that the appellant does not suffer from a medical condition that affects their ability to drive safely.
30The appellant, in their Notice of Appeal, wrote about concerns they have regarding the functional driving assessment. These included, but are not limited to:
i. "Right from the get-go, I felt that I was being set up for failure...like I was just another senior that she [the occupational therapist] wanted taken off the road. I felt that her assessment was not accurate or fair to me"; and
ii. there were a few errors in the driving assessment, including:
a) I am 87 years old; not 86;
b) Under Report Review – I did not bring any medical reports;
c) Under Assessment Findings – denied major injuries; and
d) 'Denied Hx [history] collision/tickets past 10 years' – I have not been in an accident or received any tickets so I was not 'denying' the fact.
31The appellant also wrote, "On July 8, 2024, I was sent a letter [from the Registrar] that my licence was suspended and that it would be reinstated once a satisfactory medical report is filed. I feel that this was already completed by my family physician, and question why I would have to do this again".
32The appellant's witness testified that they, plus their sisters, feel that the appellant is 'more than capable' to drive safely and they all feel comfortable and safe being a passenger with the appellant driving. They stated that the appellant only drives where and when the appellant feels confident and the appellant no longer drives at night or on the highway. In addition, they stated that the appellant has held a driver's licence for decades and has only had two speeding tickets. I take note that the appellant's Extended Driver Search for Criminal Code Convictions, shows only the appellant's current suspension for medical reasons and two speeding infractions in 2006, more than 10 years ago.
33Furthermore, the appellant's witness stated that there is misinformation in the functional driving assessment report and they do not trust everything in the report. In addition to the perceived misinformation stated above in the appellant's Notice of Appeal, the appellant's witness stated:
i. they disagree with the comment that the highway portion of the on-road testing was aborted for safety reasons. They stated that the appellant was told by the Occupational Therapist that they had a choice regarding driving on the highway for the on-road test, and that the appellant declined, in advance, not to drive on the highway; and
ii. they disagree or would like to see 'dash cam video' that the appellant 'failed to observe sign and slow for speed bump', stating that the appellant navigates speed bumps in their townhouse complex without issue.
34I agree with the appellant and their witness, that the appellant's age is listed incorrectly in the functional driving assessment results. However, I do not find that this error invalidates the report.
35I acknowledge that the appellant and their witness perceive inaccuracies or inconsistencies or misinformation in the functional driving assessment results.
36However, the appellant's witness testified that they were not present for either the in-class or on-road portions of the functional driving assessment. The appellant's witness accompanied the appellant to their functional driving assessment, was present for the Occupational Therapist's 'overview' prior to the in-class assessment and was present for the final evaluation results following the appellant's on-road assessment.
37I find, on a balance of probabilities, that some of the appellant's and/or the appellant's witness' perceived inaccuracies/inconsistencies/misinformation in the functional diving assessment report can be explained by a misunderstanding on the appellant's and/or their witness' part regarding the way the information is written or presented.
For example:
i. I agree with the appellant that on July 8, 2024, the Registrar did send them a letter. However, this letter stated, "take this letter to your treating physician...when your condition improves and have the following information sent to the Driver Medical Review Office". The enclosed form, to be completed in full, with all questions answered, was another Cognitive Disorder form;
ii. Question 1 in Section 3 (Assessment Findings) in the functional driving assessment report is: "Report Review – Have all medical reports provided by the patient been reviewed" and the answer checked off is 'Yes'. Both the appellant in their Notice of Appeal and their witness stated that the appellant did not bring (provide) any medical reports with them to the assessment. Based on this information, I find, on a balance of probabilities, that the appropriate answer to Question 1 was checked off; and
iii. I know that when a health care professional is taking a medical history, that the way 'deny or denied' is used usually means, that the healthcare professional asked a specific question (e.g., major injuries from the incident on May 4, 2024 or motor vehicle tickets in the past 10 years) to a person/client and that the person/client answered 'no' or negatively to the question. 'Deny or denied' in this case do not mean that the person/client was denying the fact.
38While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.
39Although I am not bound by the CCMTA Standards, I find them reasonable.
40Given the evidence and submissions, I am persuaded to apply the CCMTA Standards in the circumstances of this case.
41I 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 MoCA has 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.
42I acknowledge that the appellant may have felt nervous and/or uncomfortable during the functional driving assessment. I also acknowledge that the appellant's family perceive that the Ministry is using the 'one minor mistake' the appellant made on May 4, 2024 against them.
43However, I find on a balance of probabilities, that Dr. Barwell, having read the results of the appellant's functional driving assessment, sent to the Registrar under s. 203 of the Act, a Medical Condition Report, with a cited medical condition of cognitive impairment. Section 203 of the Act states that every prescribed person shall report to the Registrar every person who is at least 16 years old who, in the opinion of the prescribed person, has or appears to have a prescribed medical condition, functional impairment or visual impairment. Dr. Barwell is such a prescribed person under s. 14.1(1) of Reg. 340/94 (Drivers' Licences) made pursuant to the Act.
44Furthermore, as previously stated, during the on-road driving assessment, the appellant demonstrated critical/safety errors and the driving instructor was required to make both a brake intervention and steering intervention to prevent potential collisions. The result of the functional driving assessment was that the appellant cease driving completely as the appellant's performance during the on-road driving assessment puts them at high risk of collision. The appellant was deemed not to be a rehabilitation candidate due to cognitive deficits and lack of insight into their errors. The overall recommendation was "deficits in functional driving skills – driving not recommended".
45In addition, as was stated by the Registrar's representative, the Registrar cannot impose restrictions (e.g., driving at specific times of the day, specific roadways or locations) on a Class G driver's licence.
46Based on the totality of the evidence and submissions available to me, I accept the respondent's position that a satisfactory functional driving assessment at an approved Functional Driving Centre, should be submitted is reasonable keep in mind public and road safety.
47I acknowledge the burden that the lack of the driver's licence is having on the appellant and their family, however driving is a privilege, not a right.
48I am satisfied on a balance of probabilities that the appellant's medical condition is likely to significantly interfere with their ability to drive a vehicle of the appropriate class safely.
Conclusion
49I find that the Registrar has discharged the onus of establishing, on a balance of probabilities, that the appellant suffers from cognitive impairment that is likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.
ORDER
50For 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: September 09, 2024
_____________________
Erica Weinberg
Adjudicator