LICENCE APPEAL TRIBUNAL
Safety, Licensing Appeals and Standards Tribunals Ontario
Appeal under section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a Decision of the Minister of Transportation pursuant to section 32(5)(b)(i) - to Change the Class or Classes of Motor Vehicles in respect of which the Licence was issued
Between:
Appellant
Appellant
and
Minister of Transportation
Respondent
RECONSIDERATION DECISION
Before: Linda P. Lamoureux, Executive Chair
Written Submissions By:
For the Appellant: Self-represented
For the Respondent: Kyle Biel, Agent
OVERVIEW
On July 27, 2016, the Licence Appeal Tribunal (the “Tribunal”) issued its decision in 10292 v. Minister of Transportation. The Appellant requests a reconsideration of the Tribunal’s decision.
For the reasons that follow, I find that the Tribunal made a significant error of fact, such that the Tribunal would likely have reached a different conclusion. Accordingly, I grant the request for reconsideration and order a rehearing on part of the matter.
BACKGROUND
This matter concerns an appeal to the Tribunal by the Appellant of a decision of the Minister of Transportation (the “Respondent”) to downgrade the Appellant’s licence from Class B to Class G.
The Respondent’s decision was made following a report from the Appellant’s family physician dated January 11, 2016, regarding the Appellant’s heart condition, as well as a completed Commercial Cardiovascular Assessment form, which stated that the Appellant had received “inotropic support in hospital”. The Respondent was concerned about the Appellant’s use of the prescribed inotropic drugs.
The Respondent made its decision to downgrade the Appellant’s licence pursuant to s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8, which allows the Minister to change a class of driver’s licence in accordance with prescribed requirements. One of those prescribed requirements is section 14 of O. Reg. 340/94, which 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 his or her ability to drive a motor vehicle of the applicable class safely.
At the hearing, which took place by teleconference on July 18, 2016, the Respondent relied on the Canadian Council of Motor Transport Administrators (CCMTA) Medical Standards for Drivers, section 3.6.42, which states:
Commercial drivers eligible for a licence if
they are assessed as NYHA Class I or II
they have an LVEF of > 35%
they are not receiving intermittent inotropes.
The Respondent also referred to the Canadian Medical Association’s (CMA) Driver’s Guide – Determining Medical Fitness to Operate Motor Vehicles, which states that patients receiving intermittent outpatient or home inotropes should be disqualified from licensure.
Although the Respondent chose not to read out the various surgical, medical and procedural notes at the hearing, both parties agreed that the Tribunal would consider all submitted reports in rendering a decision.
The Tribunal reviewed a list of the Appellant’s medications documented on November 3, 2015, which included Amiodarone, an inotropic drug. The Tribunal noted that the Appellant confirmed this list at the hearing. The Tribunal’s reasons do not specify whether the Appellant confirmed this list as accurate as of November 3, 2015 or as of some other time.
The Tribunal heard evidence from the Appellant that he only received inotropic drugs at the hospital during a bridge of time from symptom onset until surgery, and is since stable. The Appellant stated that he felt it was unfair that the use of inotropic drugs in the hospital forever precludes him from having a commercial licence in the future.
The Respondent submitted that it was very much concerned about the use of inotropic drugs as reported in the cardiovascular report. The Respondent submitted that it must adhere to the standards supported by the CCMTA and the CMA. The Tribunal noted that the Respondent appeared to be under the impression that the Appellant only took inotropic drugs in hospital.
The Tribunal found the Appellant was taking an inotropic drug on a daily basis. The Tribunal stated, “all documentation supports” that finding. The Tribunal noted that although the Appellant “used a different name for this drug when reading his medication list to the Tribunal ... upon reviewing the trade name of all his medications, it is apparent he is taking this inotropic drug on a daily basis for heart rhythm control”.
Based on this finding, the Tribunal found that the Appellant did not meet the safety standards set out by the CCMTA and the CMA. The Tribunal concluded that the Appellant suffered from a physical condition likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely, and confirmed the decision of the Respondent.
The Appellant’s request for reconsideration is based on his submission that he ceased taking inotropic drugs in April 2016, and that a medical report dated June 2, 2016, shows that he was not taking inotropic drugs at that time.
LAW
Rule 18 of the Licence Appeal Tribunal Rules of Practice and Procedure governs requests for reconsideration of Tribunal decisions. Reconsiderations may be initiated either by a party or by the Executive Chair of the Safety, Licensing Appeals and Standards Tribunals Ontario.
The criteria for reconsideration are set out in Rule 18.2, which states that the Executive Chair will not grant a request for reconsideration unless one or more of the following criteria are met:
a. The Tribunal acted outside its jurisdiction or violated the rules of natural justice or procedural fairness;
b. The Tribunal made a significant error of law or fact such that the Tribunal would likely have reached a different decision;
c. The Tribunal heard false or misleading evidence from a party or witness, which was discovered only after the hearing and would have affected the result; or
d. There is new evidence that could not have reasonably been obtained earlier and would have affected the result.
- Pursuant to Rule 18.4, upon consideration of a request for reconsideration, the Executive Chair may:
a. Dismiss the request; or
b. After providing all parties an opportunity to make submissions,
i. Confirm, vary, or cancel the decision or order; or
ii. Order a rehearing on all or part of the matter.
- Rule 18.1 states that a request for reconsideration is to be made within 21 days of the date of the decision. Rule 3.1 states that the Rules will be liberally interpreted and applied, and they may be varied or applied on the Tribunal’s own initiative, or at the request of a party, to:
a. Facilitate a fair, open and accessible process and to allow effective participation by all parties, whether they are self-represented or have a representative; and
b. Ensure efficient, proportional, and timely resolution of the merits of the proceedings before the Tribunal.
- In this case, the Appellant’s request for reconsideration was filed on August 30, 2016, which is more than 21 days after the date of the Tribunal’s decision on July 27, 2016. The Respondent did not raise any objections on the basis that the request for reconsideration was filed late. In order to facilitate an open and accessible process and a fair and timely resolution on the merits, I have decided to extend the 21-day time limit in this case.
SUBMISSIONS
Both parties provided submissions on the Appellant’s request for reconsideration.
The Appellant states in his reconsideration request that Amiodarone was discontinued in mid-April 2016. He refers to a medical report dated June 2, 2016, which lists his current medications, which do not include Amiodarone.
The Respondent submits that the June 2016 medical report is new evidence that should not affect the decision of the Tribunal. The Respondent submits that the Tribunal found that the Appellant was taking daily Amiodarone not only based on the documents, but also the testimony of the Appellant. The Respondent’s further position is that regardless of the Appellant’s current medications, once inotropes have been administered at any point, the commercial disqualification is triggered.
ANALYSIS AND REASONS
Having considered the submissions of both parties, I find that the Tribunal erred in finding that the Appellant was taking daily Amiodarone, which is a significant error of fact, such that the Tribunal would likely have reached a different decision.
A medical report completed by Dr. H. on June 2, 2016 (“June 2016 Report”) lists the Appellant’s medications as of that date. Amiodarone is not included on the list. The Respondent has not suggested in its submissions that any of the medications listed in the June 2016 Report are inotropes.
The June 2016 Report is not new evidence. The Tribunal received it prior to the hearing. However, it appears that the Tribunal may not have considered the June 2016 Report. The Tribunal’s reasons do not refer to it. Although the Tribunal is not required to list each piece of evidence that it considers, the June 2016 Report directly contradicts the Tribunal’s finding that the Appellant was taking Amiodarone on a daily basis, and therefore, the Tribunal’s reasons ought to have reconciled its finding with the June 2016 Report.
The Tribunal’s reasons state, “all documentation supports that the Appellant is taking daily Amiodarone for his atrial fibrillation”. The June 2016 Report does not support the finding that the Appellant was taking Amiodarone at the time. Because the Tribunal found that “all documentation” supported that finding, it is likely that it missed the June 2016 Report.
Although it does not appear that the June 2016 Report was discussed at the oral hearing, the parties agreed that the Tribunal would consider all submitted reports in rendering a decision, even those not read through at the hearing.
With respect to the Respondent’s submission that the Tribunal reached its conclusion not only based on the documentation, but also based on the Appellant’s testimony, I find that the Tribunal’s reference to the Appellant’s testimony is insufficient to contradict the clear evidence in the June 2016 Report that the Appellant was not taking Amiodarone at the time.
In this regard, the Tribunal stated:
He used a different name for this drug when reading his medication list to the Tribunal, but upon reviewing the trade name of all his medications, it is apparent he is taking this inotropic drug on a daily basis for heart rhythm control…
It is not clear from this passage which drug name the Appellant used, which medical list he was reading from, or to which time period the list applied. Further, the Tribunal also referred to the Appellant’s testimony that he only took Amiodarone while in the hospital.
For these reasons, I find that the Tribunal made a significant error of fact by finding that the Appellant was taking Amiodarone on a daily basis.
I am also satisfied that the Tribunal’s factual error was such that the Tribunal would likely have reached a different conclusion. The Respondent downgraded the Appellant’s licence due to his use of inotropic drugs. If the Appellant was not using inotropic drugs, it is likely that the Tribunal would have found that the Appellant met the standards set by the CCMTA and the CMA. This is clear from the following passage of the Tribunal’s reasons:
[I]t is apparent he is taking this inotropic drug on a daily basis for heart rhythm control, thus the Appellant does not meet the safety standards for a commercial licence as set out by the two leading guidelines in this province. [Emphasis added.]
- Although I have found that the Tribunal made a significant error of fact such that the Tribunal would likely have reached a different conclusion, I am unable to reach a conclusion on the Respondent’s submission that “once inotropes have been administered at any point, this triggers the commercial disqualification”, without the benefit of further submissions on that point. Accordingly, after considering the submission of both parties on the reconsideration, I have decided to order a rehearing on that issue.
ORDER
- For all of these reasons, upon consideration of the submissions of the Appellant and the Respondent, I grant the Appellant’s request for reconsideration and order a rehearing on the issue of whether the Appellant’s prior use of inotropes is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.
Date of Issue: October 27, 2016
Linda P. Lamoureux, Executive Chair