Licence Tribunal
Appeal d'appel en Tribunal matière de permis
FILE: 10430/MED
CASE NAME: 10430 v. Registrar of Motor Vehicles
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 - to Suspend a Licence
10430 Appellant
-and-
Registrar of Motor Vehicles Respondent
REASONS FOR DECISION AND ORDER
ADJUDICATOR: Katherine Whitehead, M.D., Member
APPEARANCES:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: September 29, 2016
DECISION AND REASONS
This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Appellant respecting a decision of the Registrar of Motor Vehicles (the “Registrar”) pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).
FACTS
The Appellant is appealing the suspension of his Class A license. His Class A and Class GM licences were suspended on June 12, 2016. His Class GM license was re-instated on August 31, 2016. His Class A licence remains under suspension.
On June 2, 2016, Dr. A. filed a Medical Condition Report with the condition noted as "brief memory loss, recurrent”. Nothing further was noted in the “comment’ section on this report
On June 2, 2016, The Registrar sent the Appellant a letter, advising him that his driving privilege was suspended due to “cognitive impairment” and requesting that his health care provider complete the Cognitive Assessment form.
On June 9, 2016, Dr. K. (the Appellant’s family physician) completed the form. It contained the following information:
- There was no cognitive impairment
- “is perfect now – feel issue with vehicle – not driver”
- A functional assessment was not required
- “Had episodes of decreased level of consciousness while driving a specific truck. It is currently being looked at. I don’t have any concerns with him driving a different vehicle.”
On June 13, 2016, the Registrar wrote to the Appellant asking for -“Details of reported loss of consciousness with an explanation of Dr. K’s reference to “while driving a specific truck”’, a completed Syncope/Loss of Consciousness form and confirmation that there are no other disqualifying medical concerns and that all functional abilities necessary for safe driving are not impaired.
On June 20, 2016, Dr. K completed the Syncope/Loss of Consciousness form and the following was reported:
- “decreased loss of consciousness unexplained – only occurred in transport (same one)” (there was a second part to the comment which was illegible)
- The most recent episode was 1 week to under three months ago.
- There had been 2 or more episodes in the past 12 months.
- “no problem if not driving specific transport” (the rest of the comment is illegible).
By letter dated July 18th, the Registrar advised the Appellant that the requirement for reinstatement of his licences was confirmation that he was free of syncopal episodes for 3 months (for his Class GM) and 12 months (for his Class A).
On August 8th, Dr. K wrote a letter which said:
“[The Appellant] had a few episodes of transient decrease of consciousness over this past year with the last one being on May 28, 2016. All these episodes occurred while he was driving his transport truck. All these events happened while he was driving the same vehicle. He reports one time before he felt like he was floating with changes in vision, sweaty and dizzy, other times he reports that he “blacked out”. When he comes back to, he reports some blurriness initially but then vision returns normally. These symptoms did not happen when he drives cars, only when driving his specific truck. He had no problems with memory before or after these episodes occurred. All his investigations have been normal as well.
Since the end of May, [The Appellant] has not driven at all. He has had no problems at all in regards to decreasing consciousness or even feeling fatigued.
I am fully in support of his driver’s licence being reinstated.”
On August 28th, Dr. K wrote a letter to say that the Appellant had been free of syncopal episodes since May 28, 2016.
The Appellant submitted copies of blood work, ECG, carotid Doppler ultrasound, CT head scan, and Holter monitor which were done to investigate the cause of his episodes of decreased consciousness. All were normal.
On August 31st, the Registrar sent a letter saying that the Class GM licence would be reinstated, but his Class A would remain suspended. It asked for a period of 12 months free from further episodes to be considered for reinstatement of the Class A license.
On September 19th, Dr. K wrote:
“[The Appellant] was reassessed today. He is now driving his own car and a motorcycle. He has had no recurrence of his symptoms of decreased level of consciousness. He is exercising well with no problems at all. We are still awaiting his sleep study results. I have no concerns with him having his driver’s license reinstated.”
On July 30th, the Appellant had a sleep study which showed mild sleep apnea. At the time of the hearing, the Appellant had not been able to follow up the results of the sleep study with the sleep medicine physician.
There was a discussion as to which driver’s licence (the Class GM or A) Dr. K meant when he said he had no concerns with re-instatement. The Registrar suggested that Dr. K had meant the GM license since he did not mention specifically the A licence. The Appellant took the position that Dr. K had meant the Class A licence since the G licence was already reinstated at the time of the letter and the Appellant thought that Dr. K knew that fact.
On September 29th, the Registrar sent the Appellant a letter identifying his condition as “Sleep Disorder” and requested further information about the condition and advising him that his licence will be suspended November 28, 2016 if the information is not received. However, the Registrar’s Agent confirmed that the sleep disorder is not the reason for the current appeal but rather the syncopal episodes.
In his Notice of Appeal, the Appellant wrote “It is Dr. K opinion all symptoms consistent with exhaust leak in to transport. No other signs or symptoms since May 27, 2016”
The Appellant is a long haul truck driver. He stated that he drives a maximum of 9 hours a day and takes breaks approximately every 3 hours.
The Appellant told the Tribunal that the episodes he had experienced occurred only while driving his truck. He never had any episodes while driving his car or his motorcycle. He described his episodes as 10-15 seconds of “loss of sight” and said that he had never experienced a “blackout”. He said that this occurred, a total of three times on three separate days.
The Appellant’s opinion is that the episodes in his truck were due to exhaust leak into the cab. He told the Tribunal that Dr. K agrees with this assessment.
The Appellant testified that there is another person driving his truck now and he has had no problems. He said that no repairs have been done to the truck since he (the Appellant) was driving it. The Appellant submitted the results of a CO2 test that had been performed on his truck. The test did not show any signs of carbon dioxide in the cab (the test was normal).
Submissions
The Registrar’s position was that, although the Appellant thinks that his condition is caused by a specific problem with the truck, there was no evidence to support that theory. There is, however, evidence of multiple episodes of loss of consciousness with no known cause and thus there was no reason to deviate from the CCMTA guidelines which recommend a 12-month symptom-free period before reinstatement of the Class A licence.
The Appellant’s position was that he has had no symptoms outside of when he has been driving his truck, and all of his test results have been normal. His opinion is that the problem lies not with him, but with his truck and thus he is asking that his licence be reinstated.
ISSUES
Should the decision of the Registrar to suspend the Appellant’s licence be confirmed, modified or set aside?
In particular:
Does the Appellant suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his ability to drive a motor vehicle of Class A safely?
LAW
Section 47(1)(g) of the Act permits the Registrar to suspend a driver’s licence for any “sufficient reason” not referred to elsewhere in s. 47(1). The Tribunal finds that this permits the Registrar to suspend a driver’s licence if the driver fails to meet the requirements in O. Reg. 340/94, section 14(1), which states:
(1) An applicant for or a holder of a driver’s licence must not,
(a) 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; or
(b) 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.
Section 14(2) of the Regulation permits the Minister to take into consideration the CCMTA Medical Standards for Drivers in determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal has taken the CCMTA Medical Standards for Drivers into consideration.
Section 50 of the Act permits the driver to appeal the Registrar’s decision under s. 47, to the Tribunal, and the Tribunal “may confirm, modify or set aside the decision of the Minister or the Registrar.”
APPLICATION OF THE LAW TO FACTS
The Registrar has the burden of proof to show that the Appellant has a physical condition likely to significantly interfere with his ability to drive a vehicle of the applicable class safely. The Tribunal finds that there is persuasive evidence that the Appellant has a medical condition that interferes with his ability to drive.
The Appellant has described a loss of vision lasting 10-15 seconds while driving on three separate occasions. Three unexplained episodes of loss of consciousness present a significant risk in the context of driving a commercial vehicle, especially given the evidence from the Appellant about the duration of time that he is on the road.
The Appellant has offered a possible non-medical reason for his episodes. The Appellant’s opinion is that there is a problem with the truck he is driving (specifically an exhaust leak) and that is the explanation for his symptoms. The Tribunal has not been persuaded by this argument given that the results of the CO2 test were normal and no other fault with the truck was reported. Furthermore, another person is now driving the truck with no similar episodes.
Based on the evidence before it, the Tribunal finds that it is more likely than not that the episodes are caused by a medical condition, even though there is no clear diagnosis yet as to what this may be, which will likely significantly interfere with the Appellant’s ability to drive the vehicle safely.
DECISION
Upon the appeal of the decision effective August 21, 2016 of the Registrar to suspend the Appellant’s driver’s licence (Class A) pursuant to section 47(1) of the Act, and having considered the evidence filed with the Tribunal, and the submissions of the Registrar and of the Appellant;
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.
LICENCE APPEAL TRIBUNAL
Katherine Whitehead, M.D., Member
Released: October 13, 2016