Tribunal d'appel en Tribunal matière de permis
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 PURSUANT TO SECTION 47(1) OF THAT ACT
CARMICHAEL, Agent representing the Applicant
KYLE BIEL, Agent representing the Registrar of Motor Vehicles
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal by the Applicant respecting a decision of the Registrar of Motor Vehicles (the “Registrar”) pursuant to section 47(1) of the Highway Traffic Act (Ontario) (the "Act"). PRELIMINARY MATTERS
Because of traffic problems the Applicant arrived a few minutes late and we had already begun the hearing and took a few minutes to inform the Applicant of how the presentation had proceeded. FACTS
The Applicant is 74 years old, living in retirement in a remote area. Two years ago his wife unfortunately died leading to some reactive depression for which his family doctor prescribed two psychotropic drugs – Zyprexa and Prozac.
The Applicant began to realize that he was not feeling mentally as alert as he used to be and went to see a geriatrician, Dr H.D. to try to determine the cause. This consultant questioned the need for the above mentioned drugs which were discontinued. His initial Medical Condition Report dated February 24, 2009, mentioned dementia or Alzheimer’s disease in the tick off column. On March 11, 2009, the Ministry of Transportation (“MTO” or the “Ministry”) wrote to the Applicant indicating their receipt of the report stating that he suffered from a medical condition which could impair his ability to safely operate a motor vehicle. The Ministry asked that the Applicant arrange to send an up-to-date detailed assessment from a physician familiar with his medical history, a neurologist, or a physician specializing in geriatric medicine. They said this report would evaluate his cognitive functions and confirm that there are no other disqualifying medical concerns. Once this report had been reviewed and approved by the Ministry, the Applicant might be required also to undergo a driving evaluation at a rehabilitation centre. In August of 2009, Dr. H.D. wrote to the MTO stating that he initially suspected the presence of early Alzheimer’s disease and felt that a driving test was warranted to sort out the problem. The Applicant was described as 70 years of age and a retired boxer. There had been a previous myocardial infarction and also depression. His current medications include: Lipitor, Aspirin, Eltroxin, Altace, Proscar, Prevacid, Metoprolol and Aricept He mentioned the previous use of Zyprexa and Prozac and felt that they were negatively influencing his cognition. It caused increased sedation and drowsiness. The doctor stated that since February these two drugs had been stopped and the Applicant was doing “exceedingly well”. At the same time he was continued on Aricept, which is a cognitive enhancer, taking 10mg a day. The Applicant’s initial mini-mental status examination showed a score of 24/30 in February. This doctor reassessed him three more times and his most recent mini-mental status score was 27/30. He did have difficulty with the date, the day of the week and on delayed recall, he could remember two or three words. While stating that he was pleased with his patient’s progress he felt that the best way to determine his fitness to drive a motor vehicle would be a driving evaluation. The prices for various driving rehab services were provided to him. He found that the Applicant would rather avoid the $600.00 charge and preferred to be examined by the Ministry. This doctor stated that he would leave this decision up to the Ministry. On September 9, 2009, the MTO corresponded with the Applicant once again stating that they would require a satisfactory driving evaluation from a rehabilitation centre. On November 4, 2009, the Applicant replied to the Ministry refusing a driving evaluation test. Herein he described his management by his geriatrician and pointed out that after
eliminating the unnecessary medications (Zyprexa and Prozac) and with the dramatic improvement in his cognitive ability, that the geriatrician felt he should have his driver’s licence returned. The Applicant went on to describe his vigorous fitness program with daily 3 mile runs and bicycling. He also stressed the excellence of his driving record. On March 1, 2010, the MTO again wrote to the Applicant stating that they required a satisfactory driving evaluation from a rehabilitation centre. Mr. Biel drew attention to Dr. H.D’s report (geriatrician) dated August 6, 2009, stating that the best way to determine the Applicant’s fitness to drive would be a driving evaluation. On March 22, 2010, the Ministry again wrote to the Applicant stating that to determine whether he can safely operate a motor vehicle he must have a satisfactory driving evaluation from a rehabilitation centre. Mr. Biel completed the Ministry’s presentation drawing attention to pertinent sections of the Highway Traffic Act and the deliberations of the CCMTA. He pointed out that these standards allow licensing where memory impairment or mild dementia is present if the driver’s evaluation test is satisfactory. The Applicant’s Case (Presented by his Agent – Mr. Carmichael) The Applicant indicated that he had no questions and stated that he understood the position of the MTO. He then presented documents pertaining to his problems, listed as Exhibit #3. The initial page of these documents explained the reason for the Applicant’s appeal. His licence suspension was dated March 11, 2009. He stated that he felt unfairly penalized and his problems began when he was prescribed two psychotropic drugs for his reactive depression by his family doctor. The Applicant stated that he had voluntarily gone to a geriatric specialist, Dr. H.D., and with the elimination of these two drugs (Zyprexa and Prozac) there was a dramatic improvement in his cognitive ability. This was documented in a letter by Dr. H.D. The Applicant then sought help from a consulting neurologist Dr. D.K. This specialist concurred with the geriatrician’s findings of the dramatic improvement in cognitive function when the above mentioned two drugs were discontinued. He found that there was no dementia but a mild case of cognitive impairment was considered possible. The Applicant went on to explain that on his very limited pension income he could not afford the fee for a Driver’s Evaluation Test. At this point questions by the Tribunal disclosed that the Applicant had suffered some
degree of depression with the unfortunate loss of his wife two years previously. He described how the drugs made him “stupid”, sleepy, and that he could not think well and he noticed his diminished mental capacity. He said that his family doctor had sent him to the geriatrician and that his depression has now pretty well subsided and his mental capacity has increased markedly since discontinuing the two drugs. The Applicant described his driving record since the age of 16 including multiple tickets for minor speeding offences but none in his later years. He says that he has no demerit points on his licence. Mr. Biel for the Ministry in Cross-Examination On questioning he reviewed the fact that the Applicant’s family doctor had sent him to the geriatrician and that his family doctor is still looking after him. The Applicant said he is seeing his family doctor once a year, but could not clearly explain how his renewal of prescriptions was handled. He did comment that Mr. Carmichael was able to look after this problem for him. Further questioning by Mr. Biel disclosed that the Applicant had become somewhat at odds with his geriatrician, and that he lost patience with him. The doctor said things about the Applicant that he did not consider to be accurate. He indicated that the geriatrician had recommended pills that made him confused and he thought these two suspect drugs were only discontinued on the second visit. There appears to be confusion in his testimony here. On further questioning by the Agent the Applicant stated that during his August visit with the geriatrician he did not recommend a driving test. It was pointed out by Mr. Biel that he had given the Applicant a list of centers where he could obtain the driving test and there was a discussion about cost. Questioning of the Applicant disclosed that he was not at all in favour of a driving evaluation test as requested by the geriatrician. He knew with certainty that he is safe to drive. Mr. Biel then pointed out that the geriatrician very clearly wanted the Applicant to have a driver evaluation test. The reason for this could not be explained by the Applicant. When asked directly why the Applicant was refusing to comply with this request for a driving evaluation he simply stated that it was because of the high cost. He was then given the hypothetical situation wherein the test could be done with no charge and the Applicant said no because of the time delay. He did concede that if he could have the driving test with no charge today or tomorrow he would agree to that. The Applicant was then questioned about his boxing career with the possibility that there might have been brain injuries. While conceding that he did have blows to the head the Applicant said that had never been knocked down. The Applicant stated that his geriatrician did not incriminate his boxing career as a possible initiating factor in his cognitive difficulties.
Mr. Biel in Summary He quoted from the Highway Traffic Act the criteria for suspension under the section 47(1) G, items 1 and 1a. He underlined the fact that the geriatrician had felt he should report this matter to the MTO. He quoted regulation 340/94 of the Highway Traffic Act in particular section 14(a) which states that to hold a licence the driver must not suffer from any mental, emotional or physical condition impairing his driving ability, and any report indicative of such problems mandates suspension. Mr. Biel described the first Medical Condition Report ticked positive for dementia/Alzheimer’s disease. Attention was drawn to the geriatrician’s report of August 2009, indicating improvement but that he still felt a driving evaluation was required. Mr. Biel pointed out that it is now one year since the doctor’s last report and no driving evaluation has been done. He referred to Dr. K’s report which gives very sparse information and no opinion regarding the need for a driving evaluation test. Mr. Biel did indicate that mild cognitive impairment was not incompatible with the driving privilege. He observed that the geriatrician Dr. H.D. still states that an evaluation test would be very helpful. He also underlined that with mild cognitive impairment or mild dementia a Driver’s Evaluation Test is required by the Ministry. Mr. Biel informed the Tribunal that the stumbling block in any re-licencing of the Applicant is simply his reluctance to undergo a driving evaluation test said to be due to the high cost. With this comment he indicated the Applicant is not proactive in trying to find a suitable place to have this driving evaluation at possibly a lesser cost. He closed his summary by pointing out that Dr. K. mentioned the possibility of mild dementia, difficulty with memory, but also that there had been cognitive improvement. A Driver’s Evaluation Test would be extremely valuable in helping to solve these difficulties. ISSUES
Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside? LAW
Regulation 340/94, Section 14 states:
An applicant for or a holder of a driver’s licence must not,
suffer from any mental, emotional, nervous or physical disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely; and
be addicted to the use of alcohol or a drug to an extent likely to significantly
interfere with his or her ability to drive a motor vehicle safely.
Subject to section 47.1, the Registrar may suspend or cancel,
the plate portion of a permit as defined in Part II;
misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a motor vehicle;
conviction of the holder for an offence referred to in subsection 210(1) or (2);
the Registrar having reason to believe, having regard to the safety record of the holder or of a person related to the holder, and any other information that the Registrar considers relevant, that the holder will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety; or
any other sufficient reason not referred to in clause (d), (e) or (f).
50 (1) Every person aggrieved by a decision of the Minister made under subsection
32(5) for which there is a right of appeal pursuant to a regulation made under clause 32 (14) (n) or a decision of the Registrar under section 17 or 47 may appeal the decision to the Tribunal.
(2) The Tribunal may confirm, modify or set aside the decision of the Minister or the
APPLICATION OF THE LAW TO FACTS The decision of the MTO to suspend the Applicant’s licence is based on section 47(1) of the Highway Traffic Act. It is clear today that the Applicant suffered a reactive depression with the unfortunate loss of his wife and also it seems likely that his family doctor’s prescription of two psychotropic drugs (Zyprexa and Prozac) led to drowsiness and reduction of cognitive function. His improvement with the cessation of these two drugs has been extremely satisfactory as noted by his geriatrician and also by a neurologist. The doctors, however, have not clearly stated in writing that the Applicant should automatically have his driving privilege restored. They have avoided such comment by indicating that a Driver’s Evaluation Test
would resolve any lingering questions. The Applicant’s presentation today as a witness was quite satisfactory. He is alert, pleasant and co-operative and shows a clear understanding of the issues involved. He appeared a little confused at times on cross- examination by Mr. Biel, but not in any critical way. The Applicant’s resistance to the repeated request by the Ministry for a Driver’s Evaluation Test raises concern for this Tribunal. He simply states that he cannot afford the cost but was cautious of detailed questioning by Mr. Biel with little enthusiasm for taking the test if it were free. The Applicant’s persistent reluctance to make any effort to comply with this request raises concerns. It may be that he suspects that he may not do very well. It is noteworthy that both of the medical consultants have not stated categorically that the Applicant is fit to drive safely at the present time. They indicated that a Driver’s Evaluation Test could help to clarify situation. These facts cause concern to this Tribunal which concurs that a Driver’s Evaluation Test is necessary in order to eliminate any lingering doubts about the restoration of the Applicant’s driving privilege. The Tribunal notes that the MTO has dropped its request for up-to-dated medical reports. Its insistence on a driver evaluation test is reasonable. DECISION Upon the application by the Applicant to appeal the decision effective March 21, 2009 of the Registrar of Motor’s Vehicles (the “Respondent”) to suspend the driver’s licence pursuant to section 47(1) of the Highway Traffic Act (the “HTA”), and having considered the evidence filed with the Tribunal, and the submissions of the Respondent and of the Applicant; It is the decision of the Tribunal pursuant to the authority vested in it under section 50(2) of the Act that the decision of the Registrar be confirmed.
Dr. David W. Hurst, Presiding Member RELEASED: August 11, 2010
This decision may also be available on Quicklaw at a later date.
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