Virginia Pettigrew v. Registrar of Motor Vehicles, 2025 CanLII 13544

Licence Appeal Tribunal File Number: 16646/MED

Appeal under section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), from a decision of the Registrar of Motor Vehicles to suspend a driver’s licence under subsection 47(1) of the HTA.

Between:

Virginia Pettigrew

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Peter Savage, Member

APPEARANCES:

For the Appellant: Virginia Pettigrew, Appellant Donna Pettigrew, Representative for Appellant

For the Respondent: Melissa Litrenta, Representative for the Respondent

Heard by Teleconference: February 13, 2025

REASONS FOR DECISION AND ORDER

A. OVERVIEW:

1On March 14, 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 physician that the appellant suffers from substance use and cognitive impairment conditions likely to significantly interfere with her ability to drive a motor vehicle of the applicable class safely. The appellant appeals the suspension and asks the Tribunal to reinstate her licence.

2At the hearing, the Registrar clarified the reason for the suspension. Medical examination had ruled out a substance use condition and focused only on a cognitive impairment condition. The Registrar advised that the suspension is based on a cognitive impairment condition and substance use is not an issue in this hearing.

3Having considered all the evidence and for the reasons that follow, the Tribunal confirms the Registrar’s decision to suspend the appellant’s driver’s licence for medical reasons.

B. ISSUES

4The issue in this appeal is whether the appellant suffers from a cognitive deficit condition that is likely to significantly interfere with her ability to drive a vehicle of the applicable class safely.

5To answer that issue, I will address the following questions:

a. Does the appellant suffer from a cognitive impairment condition?

b. If the appellant suffers from a cognitive impairment condition, is it likely to significantly interfere with her ability to drive a vehicle of the applicable class safely?

C. LAW:

6Under 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”). Under s. 14(1)(a) of the Regulation, 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. Subsection 47(1) of the HTA permits the Registrar to suspend a driver’s licence for any sufficient reason.

7Under 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.

8A person whose licence is suspended under these provisions may appeal the suspension to the Tribunal under s. 50(1) of the HTA.

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 cognitive impairment condition?

10The Registrar alleges that the appellant suffers from a medical condition namely a cognitive impairment. The Registrar’s position is based on medical reports and a functional driving assessment and follow up.

11The unsolicited medical condition report submitted by Dr. Maria Gibbons (the appellant’s family doctor) on or about February 29, 2024, suggested the appellant may have suffered from substance abuse disorder as well as a cognitive deficit.

12Further reports from Dr. Gibbons clarified the appellant did not suffer from a substance use condition. The Registrar testified that substance use was no longer an issue preventing relicensing.

13Dr. Gibbons unsolicited medical report of February 29, 2024, reported the appellant suffered from cognitive impairment and the cause was unknown.

14Dr. Gibbons submitted a cognitive disorder questionnaire on March 27, 2024. In this report, she confirmed the appellant suffered from mild cognitive impairment and recommended a functional driving assessment.

15The occupational therapist (name not legible) at the Driver Assessment and Rehabilitation Program in London, Ontario reported the appellant’s cognitive impairment in her reports of September 26, 2024, and November 29, 2024.

16The appellant testified her memory and processing was not as good as it was a few years ago but she maintained she did not have dementia.

17The appellant’s representative drew my attention to letters from business associates and businesses that had knowledge of the appellant. These letters expressed the writer’s opinions that the appellant was an active woman, interacted in the community and looked after her own affairs and had in their opinion shown no sign of dementia.

18There was no medical evidence presented disputing the diagnosis of cognitive deficit.

19While I agree with the appellant that there is no evidence of dementia, I take note of the Registrar’s position that the appellant’s condition is a cognitive deficit and not dementia(as a qualified medical practitioner in the province of Ontario I understand the difference between cognitive deficit and dementia and I made every effort to explain the difference to the appellant and her representative) On a balance of probabilities, based on the evidence presented, I find the Registrar has established the appellant has a cognitive deficit condition.

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

20The 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.

21The Registrar refers to the CCMTA (Canadian Council of Motor Transport Administers) discussion and recommendations. In chapter 6, there is a description of the effects of cognitive decline on the ability to drive safely and the increase of risk to road safety with cognitive decline. While I note the CCMTA states that even severe dementia is not an absolute contraindication to driving, it further states that any suspicion of cognitive impairment or dementia should direct the clinician to do more testing.

22The CCMTA states that no office-based test or battery of tests including MMSE (mini-mental state examination) or MoCA (Montreal Cognitive Assessment) can have sufficient sensitivity or specificity to be used as the sole determinant of driving fitness. However, abnormalities in these tests indicate a requirement for further testing.

23The CCMTA states that a clinician who has doubts about a patient’s cognitive functioning and its effects on driving should refer the patient to an occupational therapist for a functional driving assessment.

24The Registrar argues that the clinician’s concern about the appellant’s cognitive deficit led to the appellant having a functional driving assessment.

25The functional driving assessment carried out September 26, 2024, at the Driver Assessment and Rehabilitation Program in London, Ontario resulted in a failure to reinstate the appellant’s licence. Several driving errors were noted, including:

• Stopping on a green light.
• Failure to yield at a merge (resulting in driving instructor intervention)
• Crossing lanes on a double lane left turn with other vehicles in the other lane.
• Making a left turn while oncoming traffic was approaching.
• Making a left turn while the light was still red.
• The occupational therapist stated the appellant demonstrates issues with sustained and divided attention, judgement, multi tasking, and has slow processing speed, poor memory, and confusion.

26The Registrar pointed out the finding of the functional driving test was that the driving privilege should remain suspended and a series of driving lessons be undertaken.

27The driving lessons were carried out at the Driver Assessment and Rehabilitation Program in London, Ontario. In a letter to the MTO on November 29, 2024, the occupational therapist reported that deficits in driving skills had remained unchanged in spite of lessons and recommended the appellant’s licence remain suspended.

28The Registrar’s position is that the licence should remain suspended until the appellant’s condition has improved, and she has completed a functional driving assessment successfully.

29The appellant maintains she is a safe driver, has a safe driving record and argues that she is fit to drive.

30The appellant’s representative draws attention to the letter from the Blue Water driving academy which states the appellant’s driving skills are above average for her age and she has the ability to improve her driving skills and recommends she be given a temporary licence for more training with a qualified driving instructor and be allowed another functional driving assessment.

31The appellant testified that:

1. She has driven for years all over North America including New York City, Chicago, and Los Angeles
2. While she knows she did not do well on the driving test she feels the test was not fair

• She has chronic illness causing pain while seated for long periods of time. (Arthritis, sciatica, scoliosis and nerve damage)
• The trip to London was too long and she was tired and didn’t have time to rest up prior to the test.
• She was not expecting a test of cognition and had not prepared for it
• The occupational therapist talked too quickly and not loudly enough. The appellant is hard of hearing and depends on hearing aids.
• London is a big city and the appellant has only been driving in the small town of Owen Sound in the last two years
• The appellant’s representative pointed out other 80-year-olds are not subjected to as intense testing when they go for their routine licence renewal at age 80.

3. She knows she will have to do the functional driving test and cognitive tests again and has been practising for them and has an appointment for another functional driving test in April of this year.
4. She has her medications sorted out and has the support of her family doctor and her daughter.
5. The stress she was under at the time of her suspension was a result of a financial situation with her son. This situation has settled down and steps have been taken to avoid similar situations in the future.

32I find the appellant feels strongly that she is safe to drive and indeed has taken steps in the last few years to limit her driving to her small community. She has settled a lot of the stressful issues in her life. The appellant’s scores on the MoCA and Trails A and B are only a little below the expected normal scores, however, I can understand and agree with the family doctor’s plan to further investigate with a functional driving test. The results of the functional driving test were not satisfactory and even with follow up lessons resulted in a recommendation that the licence remain under suspension.

33The Registrar argues there is no medical evidence to support the appellant’s contention that she does not have a cognitive impairment and there has been no medical evidence given that she is safe to drive. Indeed, the Registrar argues the opposite is true, the function driving assessment says she is not safe to drive. I can understand the appellant’s belief that she is a safe driver with years of experience, but I am compelled by the Registrar’s argument that both the family doctor and the occupational therapist confirm the diagnosis of cognitive impairment and neither recommend removal of the driving suspension. I also note the letter of support from the Blue Water driving school recommended further lessons, and a further driving assessment, and did not recommend a return of the appellant’s driving privileges.

34I believe that every case must be judged on its own merits and, in this case based on the evidence presented, I agree with the Registrar and find, on a balance of probabilities, that the appellant’s cognitive deficit condition is likely to significantly interfere with her ability to drive a vehicle safely. I recommend the licence remain under suspension until the condition is corrected and the appellant completes a functional driving assessment successfully.

E. ORDER:

35For 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.