Licence Appeal Tribunal File Number: 16393/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:

Mozammel Khan

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATORS:

Dr. Erica Weinberg, Chair of the Panel

Robert Maich, Co-Panelist

APPEARANCES:

For the Appellant:

Mozammel Khan, Self-Represented

For the Respondent:

Sharon Nelson, Representative

HEARD: December 3, 2024

OVERVIEW

1Mozammel Khan (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (“Registrar”) 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 healthcare 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 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 safely.

3The Registrar takes the position that the appellant suffers from a medical condition, namely 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. They deny that they suffer from cognitive impairment and deny that 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.

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, we will address the following questions:

i. Does the appellant suffer from 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, 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 of the applicable class safely, and we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

PROCEDURAL ISSUES

10Both the appellant and the respondent brought motions for late filing of evidence.

11The appellant brought a motion for late filing of Exhibit 3, Exhibit 6 and Exhibit 7; the motion was granted on consent.

12The respondent brought a motion for late filing of Exhibit 9 and Exhibit 10; the motion was granted on consent.

13The Tribunal must grant permission for the late filed documents to be considered as evidence pursuant to Rule 9.3 Licence Appeal Tribunal Rules, 2023 (“Rule”). When determining whether to admit late filed documents into evidence, the Tribunal may consider any relevant factor including, the reasons for the non-compliance, whether a party is prejudiced by the exclusion or inclusion of evidence and the extent to how any prejudice may be mitigated, whether the information was within the knowledge of the other party, whether late filing is on consent and the relevance of the documents.

14The appellant sought to file into evidence a functional driving assessment, a physician’s note as to the condition of the appellant, and a letter of support from a friend. These documents were not available until just prior to this proceeding. Although the documents were not within the respondent’s knowledge until recently, upon review of the documents the respondent consented to its admission into evidence, as it deemed its probative value to exceed any prejudice it may have suffered. We agree as the documents are clearly relevant to this proceeding.

15The respondent sought to file into evidence two ministry notices that were sent to the appellant previously and were within the appellant’s knowledge. We find no prejudice to either party in the late filing of these documents and the documents are clearly relevant to this proceeding; it is also noted the late filing was on consent.

ANALYSIS

Does the appellant suffer from Cognitive Impairment?

16The evidence presented at the hearing establishes, on a balance of probabilities, that the appellant suffers from a medical condition, namely cognitive impairment.

17The Registrar’s position is supported by medical reports completed by Dr. Alessandra Palombo, the appellant’s treating physician at Memory & Aging Canada, specifically:

i. Medical Condition Report dated May 15, 2024, pages 11 and 12 of the respondent’s material and submissions (“RMS”) identifying that the appellant has cognitive impairment due to dementia with the following notation in the section to describe the medical condition or impairment:

“Subjective symptoms of STM [short term memory], praxis [organizing, planning and performing actions to reach a goal]), some visuospatial (got lost once on the road). MoCA [Montreal Cognitive Assessment] score 17/30 with impairments in visuospatial and executive tasks. Difficulty with performing 1-2 IADLs [instrumental activities of daily living]. Some concerns re: language barrier affecting accuracy of MoCA score. ? for on-road testing or other assessment.”

ii. Cognitive Disorder form dated August 23, 2024, pages 26 to 30 of the RMS, indicating Mild Cognitive Impairment/Mild Dementia and requirement of a functional driving assessment, with the following notation:

“Likely vascular dementia. Recent MoCA 17/30 with impaired trails, copy (May 6, 2024). Patient had very little insight and does not believe he has dementia/cognitive concerns.”

18As a licenced and duly qualified physician in the province of Ontario, Dr. Weinberg knows 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, Dr. Weinberg knows that a MoCA score of 26 and above is considered normal. Dr. Weinberg takes notice of these facts pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

19The respondent’s position is further supported by occupational therapist, Janice Young, who administered the appellant’s ‘in-clinic skill testing’ for their functional driving assessment at CBI Health (Exhibit 3) on October 23, 2024, and who wrote:

i. “…attended with medically suspended licence due to finding of low cognitive scores May/June 2024. Lack of insight into deficits and disagrees with findings”; and

ii. “Cognitive/Perceptual – ALL scores below normal limits”, including: MoCA = 22/30 (errors in visuospatial/executive, naming, attention and delayed recall); Trails A; Trails B; Motor-free Visual Perception Test-R; Maze test (unaware incomplete); and difficulty following/processing instructions and repetition required).

20The appellant denies that they suffer from cognitive impairment.

21The appellant testified that, prior to May 2024, that their wife and daughter expressed concerns regarding their cognitive state and this is why a MoCA (score 17/30) was performed at the office of their family physician, Dr. Nivin Azer. However, the appellant testified that, at that time, they were suffering from depression from the loss of their closest childhood friend, and were being treated with antidepressant medication which has now been discontinued, and they no longer have any cognitive impairment.

22The appellant submits they are in “good condition” and relies upon a MoCA test dated August 29, 2024, indicating a score of 28/30; and the correspondence of Dr. Azer, dated November 29, 2024 (Exhibit 7) which states:

“…Mozammel Khan was seen in my office on 20-Nov-2024. Mozammel[‘s] symptoms are stable…”

23The appellant submitted two letters of support, one from their spouse, Tsarina Khan (Exhibit 5), and the other from a family friend, Monir Hossain (Exhibit 6). Both letters state that the appellant had been suffering from depression, that the depression led to his cognitive deficiency/affected his cognitive power and that the appellant has now improved dramatically/regained their cognitive power.

24When questioned, the appellant testified that: their daughter is a friend of Dr. Palombo; their daughter arranged their appointment with Dr. Palombo; they chose to have the appointment over the phone; their daughter was also on the phone during their appointment; and they disagree with many of the medical findings/statements made by Dr. Palombo in the medical condition report and Cognitive Disorder form.

25Furthermore, in their Notice of Appeal and during the hearing, the appellant stated that: Ms. Young was not friendly during the test, citing that this was related to a joke they told Ms. Young at the onset of the in-class testing; they do not believe and reject the findings of the functional driving assessment as it was a biased assessment; they performed well on all the cognitive tests; and they were unable to view the ‘transcripts’/Ms. Young refused to show them their performance on the cognitive tests.

26We prefer the evidence and submissions of the Registrar over those of the appellant, and find on a balance of probabilities, that the appellant has cognitive impairment.

27We find the evidence and submissions of the Registrar to be persuasive. The Registrar has submitted credible medical evidence with specific cognitive impairment findings from two qualified healthcare practitioners. The cognitive assessment performed by Ms. Young is the appellant’s most recent cognitive assessment in evidence and was administered approximately six weeks prior to the hearing; is the most exhaustive and detailed cognitive assessment in evidence; the appellant scored below normal limits in all the cognitive testing done, including a new MoCA (22/30); and this assessment was performed after the appellant’s pharmacological treatment for depression was completed. In respect to the appellant’s allegation of bias on the part of Ms. Young, we find there is no evidence of bias and conclude the appellant’s allegation was solely based on disagreement with the assessment results; we find Ms. Young’s evidence to be credible, free of bias and assign it significant weight. In addition, both healthcare practitioners stated that the appellant has no insight into their cognitive deficits.

28When weighing the evidence, we did not find as persuasive the evidence of the appellant. Dr. Azer, in their letter, does not specify which of the appellant’s symptoms they are referring to nor which of the appellant’s known medical conditions (i.e., diabetes, hypertension, high cholesterol, depression, cognitive impairment…) they are referring to. Although we find the appellant’s letter from their spouse and from their friend to be supportive, neither letter contains any medical evidence that the Tribunal can rely upon. There is no evidence from a treating physician which states that the appellant’s cognitive decline/impairment was solely due to or due to depression.

29In addition, with respect to the appellant’s MoCA test score of 28/30 from August 29, 2024, Dr. Weinberg finds, on a balance of probabilities that the scoring appears to be inaccurate. The maximum score that should have been awarded on August 29, 2024 MoCA is 25/30; based on top left = 0/1 + middle top = 1/1 + top right =1/3; the total top row of MoCA was scored 5/5; we find that total top row should have been 2/5; hence 28/30 becomes 25/30. In other words, we find on a balance of probabilities, that the appellant’s score on the August 29, 2024 MoCA appears to be lower than reported. We did not find the August 29, 2024 test results to be convincing when weighted against the Registrar’s evidence.

30We 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?

31We 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.

32The Registrar’s representative argues that cognitive impairment can have a direct effect upon fitness to drive.

33Section 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.

34The Registrar’s representative referred to safety concerns set out in Chapter 6 of the CCMTA Standards, which include, but are not limited to:

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.

35The 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.

36The Registrar’s representative referred to the written report from the appellant’s functional driving assessment at an approved Functional Assessment Centre on October 23, 2024, and highlighted:

From the ‘on-road assessment’:

i. skill deficit/not functional for driving for awareness of driving environment (i.e., slowed processing/decreased awareness and lack insight errors);

ii. skill deficit/not functional for driving based on occupational therapist’s (Ms. Young’s) on-road score (evidence of impairment in driving; unaware ran stop sign);

iii. skill deficit/not functional for driving based on the driving instructor’s (Tim Danter’s) on-road score (i.e., errors in driving; does not meet licensing standards, high collision risk); and

iv. deficits in functional driving skills - driving not recommended.

From the ‘Additional Comments’ section:

Jerky pedal pulsing reportedly pre-existing style of driving, however, demonstrated deficits in driving including but not limited to only:

i. unaware when put car in reverse and moved about five feet before noticing need to brake;

ii. excessively slow to find and move into left lane;

iii. difficulty finding upcoming entrances for turns;

iv. difficulty following directions;

v. critical error when ran stop sign (unaware);

vi. remainder of route and highway aborted for safety reasons;

vii. due to lack of insight [of/into] errors, cognitive deficit and potentially progressive condition, not a driver rehabilitation candidate; and

viii. advised not to drive as today’s performance places them at high risk of collision.

37The appellant submits that they do not have a medical condition that significantly interferes with their ability to drive a motor vehicle of the applicable class safely. The appellant cites their good driving record, testified that they are a very careful driver and stated they are 110% capable to drive.

38When questioned about the comments/errors noted in the on-road portion of the functional driving assessment, the appellant testified that: the results are ‘totally wrong’; they ‘did everything correct’ during the driving test; they ‘made no errors’; they did not disregard a stop sign; they did not put the car into reverse; Ms. Young had a ‘mind to fail [them]’; and the decision made regarding their functional driving assessment was ‘whimsical’.

39In addition, when questioned, the appellant testified that they told Dr. Azer that they failed the functional driving assessment but Dr. Azer did not receive nor did the appellant give Dr. Azer a copy of the functional driving assessment results.

40While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts. Although we are not bound by the CCMTA Standards, we find them reasonable.

41Given the evidence and submissions, we are persuaded to apply the CCMTA Standards in the circumstances of this case.

42We accept the safety concerns set out in Chapter 6 of the CCMTA Standards, which the respondent’s representative presented.

43We acknowledge that the appellant’s ‘Extended Driver Record Search for Criminal Code Convictions’ show no significant infractions.

44We also acknowledge that the appellant asserts that they made no errors during their on-road functional driving assessment. However, we note that both Dr. Palombo and Ms. Young have written that the appellant has no insight into their condition of cognitive impairment, and Ms. Young also wrote that the appellant has no insight into their errors (made during the on-road assessment).

45We find, on a balance of probabilities, the assessors’ comments in the functional driving assessment of October 23, 2024 to be credible and persuasive, specifically, but not limited to: errors/impairment in driving; does not meet licensing standards; critical error when ran a stop sign and was unaware; high collision risk; remainder of route and highway aborted for safety reasons; lack of insight into errors; and appellant is not a rehabilitation candidate.

46In addition, as was stated by the Registrar’s representative, we accept that the Registrar cannot impose restrictions on the appellant’s driver’s licence, e.g., requiring the appellant to be accompanied by another person or the imposition of geographical or any other restrictions such as a conditional licence.

47Based on the totality of the evidence and submissions, we accept the Registrar’s position that a satisfactory functional driving assessment at an approved Functional Driving Centre, should be submitted is reasonable keeping in mind public and road safety.

48We acknowledge the burden that the lack of the driver’s licence is having on the appellant as well as the concerns expressed by the appellant, their spouse and their friend regarding a potential relapse of the appellant’s depression should the appellant not regain their driver’s licence. However, driving is a privilege, not a right.

49We are 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 applicable class safely.

Conclusion

50We 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 their ability to drive a motor vehicle of the applicable class safely.

ORDER

51For 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.