LICENCE APPEAL TRIBUNAL

Safety, Licensing Appeals and Standards Tribunals Ontario

Date: 2017-05-09

Appeal under subsection 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) of the Act to change the Class or Classes of a Driver’s Licence

Between:

Appellant

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

Panel: Kevin Flynn, M.D., Member

Appearances:

For the Appellant: Self-represented
For the Respondent: Kyle Biel, Agent

Place and date of hearing:

By teleconference
April 21, 2017

REASONS FOR DECISION AND ORDER:

A. Overview:

1The Appellant appeals from the decision of the Minister of Transportation (the “Minister”) to change the class of his driver’s licence from a commercial licence to a Class G licence pursuant to s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H. 8 (the “HTA”).

2The Appellant is a 60-year-old truck driver who lost consciousness while driving his truck on the morning of November 30, 2016, causing his truck to veer off the road and strike a lamp post and a parked car. He was taken to hospital in an ambulance. An emergency room physician submitted a Medical Condition Report to the Registrar of Motor Vehicles (the “Registrar”) in compliance with s. 203 of the HTA, which requires all medical practitioners to report any person older than sixteen who is suffering from a condition which may make it dangerous for the person to drive. The reported condition was “Blackout or Loss of consciousness or Awareness”. As a result, the Registrar suspended the Appellant’s licence. On February 7, 2017, the Appellant’s Class G licence was reinstated based on medical reports provided by the Appellant.

3In this appeal, the Appellant requests that his Class A licence be reinstated, as his fainting episode was caused by poor diet, dehydration and lack of exercise, all of which have now improved. The Respondent submits that the Appellant’s Class A licence should not be reinstated until 12 months has passed since the last episode of loss of consciousness.

4For the reasons that follow, I confirm the Minister’s decision to change the class of the Appellant’s licence from A to G.

B. ISSUES:

5The issue in this appeal is whether the Appellant’s episode of loss of consciousness on November 30, 2016 is a medical condition that is likely to significantly interfere with his ability to drive a Class A vehicle safely.

C. facts and EVIDENCE:

Respondent’s Evidence

6The Ministry of Transportation (the “Ministry”) received a Motor Vehicle Collision Report dated November 30, 2016 from a police officer who investigated the collision. The report stated that the Appellant “passed out” and “awoke in the front yard of the collision address after striking a light post and parked vehicle.” The report also stated, “Driver taken by EMS, determined medical issue to blame.”

7The Ministry also received a Medical Condition Report dated November 30, 2016 completed by Dr. P., an emergency room physician. The report indicates the Appellant’s condition as “Blackout or Loss of consciousness or Awareness.” Dr. P. noted on the report, “Syncopal episode while driving with only seconds of warning. Unable to avoid collision.”

8By letter dated December 9, 2016, the Registrar advised the Appellant that the Registrar had decided to suspend his driver’s licence due to the reported condition of “Syncope/Loss of Consciousness”. A Syncope/Loss of Consciousness Form was enclosed.

9On January 27, 2017, the Appellant sent to the Ministry the Syncope/Loss of Consciousness Form completed by a cardiologist, Dr. T., along with a report from a Cardiology Clinic Consult with Dr. T. dated January 26, 2017 (“Consult Report”).

10Dr. T. indicated on the Syncope/Loss of Consciousness Form that the Appellant had an episode of atypical vasovagal syncope, which occurs in the sitting position or is not preceded by warning signs. Dr. T. also indicated that the Appellant had not been prescribed any medication and was adherent to the recommended treatment plan. Dr. T. stated that the Appellant is “clear to reapply for driving licence.”

11The Consult Report included the following information:

[The Appellant] was admitted to [hospital] in November 2016. At that time, the patient was noted to have an episode of syncope. He was noted to have shortening of the RR interval prior to a prolonged palsy resulting syncope. At that time, he was delivering goods as part of his job as a driver. He did notice the symptoms of feeling hot, diaphoretic and lightheaded and lost consciousness prior to him pulling over. He however denies any sinus symptoms since then. He has been compliant with diet modification. He reported that he has been drinking water on significant basis….

12The Consult Report also indicated that: his heartbeat, blood pressure and breathing appeared normal, a cardiovascular examination revealed no concern, an EKG revealed normal sinus rhythm, a Holter monitor test showed no rhythm disturbance, an echocardiogram showed normal Ejection Fraction, and laboratory tests showed normal blood count and normal electrolytes.

13Dr. T. wrote the following under the heading “impression and plan” in the Consult Report:

1. [The Appellant] has no more episode of syncope or near syncope since he [made] his lifestyle modification. As reported in my initial consultation, his clinical symptoms are compatible with vasovagal syncope.

2. At the current juncture, there is no contraindication for the patient to reapply for his driving licence. He has been strongly advised to avoid skipping meals, to drink at least 4-6 glasses of water a day.

3. He has been advised to avoid prolonged standing. If he does become dizzy he has been advised to lie down immediately.

4. I would like to follow up with him in 9 months’ time. I have filled out the paperwork for clearance to reapply for driving licence as per MTO.

14By letter dated February 7, 2017, the Ministry advised the Appellant that his medical report had been approved. However, the Ministry advised him that his commercial licence would be changed to a Class G licence, as he no longer meets the National Medical Standards for a commercial licence due to his syncopal episode. He was advised that, in order to regain his commercial licence, he would require a further report from a physician or specialist confirming that he has remained free from further episodes for 12 months.

15The Appellant sent a letter to the Ministry dated February 26, 2017 requesting the return of his commercial licence. The letter stated that Dr. T. had said that the episode was caused by dehydration and poor diet and that he does not smoke, does not do drugs and has had a clean record for 25 years. The Appellant also indicated that he cares for his two aging parents at home and that, since the incident, he has had trouble meeting his financial commitments.

16Dr. T. wrote a further letter to the Ministry dated March 7, 2017, which stated:

[The Appellant] was seen in my office on 26/01/2017 for evaluation of his history of syncope. He has had no more episodes of syncope or near syncope since he has modified his lifestyle. His clinical symptoms is compatible with vasovagal syncope. At the current juncture there is no contradiction for the patient to reapply for his commercial licence. The risks of syncope is minimal if he follows previous prescribed instructions.

17The Appellant also submitted to the Ministry the results of a CT Scan, laboratory results, and an electrocardiogram, all of which were normal.

18By letter dated March 23, 2017, the Ministry advised the Appellant that the medical files submitted had been reviewed, and that he does not meet the National Medical standards for a commercial licence.

Appellant’s Evidence

19The Appellant is a truck driver who has worked for the same company since January 2004. Prior to the incident on November 30, 2016, he had a routine of waking up at 2:30 a.m. and leaving for work at 3:30 a.m. without breakfast other than a cup of coffee and an occasional stop for coffee during the morning. He would drive for five hours without a meal with maybe an apple and water. He would go to sleep each night between 7:00 and 7:30 p.m. He stated that his working day is about twelve hours of driving.

20On November 30, 2016, he started work at approximately 3:30 a.m. He had one stop for coffee but did not have solid food that morning except possibly a muffin. While he was driving through an urban area at approximately 8 a.m., he felt intense heat coming up from his stomach and lungs. He tried to pull over but could not do so in time before losing consciousness. His truck climbed a curb and struck a pole and a parked car. He gained consciousness shortly after the collision. He then got out of his truck to check if anybody was injured. He was then taken to the hospital in an ambulance.

21The Appellant testified that he subsequently discussed his lifestyle with Dr. T., his cardiologist, who advised him that his syncopal attack was connected to his poor nutrition, dehydration, poor conditioning with not enough time for breaks when driving and long hours.

22The Appellant testified that he has changed his dietary and exercise habits as a result of the advice by Dr. T. He states that he is in great condition. Now he eats every three hours and walks 30 minutes every day. He states that he does not smoke and drinks socially. He does not drink coffee anymore and, instead, drinks 2 litres of water per day. He has radically changed his diet and eats more vegetables. He states that he is now exercising.

23The Appellant states that nothing like this has ever happened to him before. He has never stayed in a hospital before and had no previous health issues.

D. LAW:

24The Minister of Transportation (the “Minister”) has the authority to change the class of a driver’s licence under s. 32(5)(b)(i) of the HTA. That section states:

The Minister may require an applicant for a driver’s licence or an endorsement or a person who holds a driver’s licence to submit to the examinations that are authorized by the regulations at the times and places required by the Minister and to meet other prescribed requirements, and the Minister may,

(b) in the case of a person who holds a driver’s licence,

(i) impose the conditions authorized by the regulations, remove any conditions or endorsements or change the class or classes of driver’s licence held by the person, in accordance with the results of the examinations and other prescribed requirements…

25The Minister’s decision under s. 32(5)(b)(i) is to be made in accordance with the examinations that the Minister may require and other prescribed requirements.

26One of the prescribed requirements is set out in s. 14(1)(a) of O. Reg. 340/94 (the “Regulation”), 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.”

27In determining whether a person meets that requirement, the Minister may, under s. 14(2)(b) of the Regulation, require him or her to provide satisfactory evidence that he or she is able to drive a motor vehicle of the applicable class safely. That evidence may include any reports of examinations that the Minister has required the person to submit to pursuant to s. 15 of the Regulation.

28Section 14(2)(a) of the Regulation allows the Minister to consider the Canadian Council of Motor Transport Administrators (“CCMTA”) Medical Standards for Drivers when determining whether the requirements of 14(1) are met. Similarly, the Tribunal may take the CCMTA Medical Standards for Drivers into consideration, although they are not binding requirements.

29Section 50(1) of the HTA and section 25.1 of the Regulation provide a right to appeal a decision made by the Minister under s. 32(5)(b)(i) to the Tribunal. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Minister.

E. SUBMISSIONS:

Respondent’s Submissions

30The Respondent submits that a 12-month period of stability is necessary before it is safe for the Appellant to drive a commercial vehicle.

31The Respondent submits that the Appellant’s loss of consciousness is unexplained. Dr. T. clearly indicated on the Syncope/Loss of Consciousness Form that the applicable condition is atypical vasovagal syncope. If Dr. T. were of the opinion that the loss of consciousness was caused by dehydration, he would have checked the box for “syncope with reversible cause (e.g. hemorrhage, dehydration)” which was the next box below.

32The Respondent submits that the applicable standard in the CCMTA Medical Standards for Drivers is section 19.6.10 – Single or recurrent unexplained, single or recurrent atypical vasovagal, or recurrent typical vasovagal syncope – Commercial drivers. This standard provides that commercial drivers are eligible for a licence if it has been at least 12 months since the last episode of syncope and the conditions for maintaining a licence are met.

33Although a 12-month waiting period may appear harsh, the Respondent submits that this is reasonable given that there were no warning signs of the loss of consciousness, as demonstrated by the fact that a collision occurred.

34The Respondent submits that the medical evidence and the collision report demonstrate that the Appellant’s condition will affect safe driving. The Respondent submits that fortunately no one was injured in the collision and the Respondent is trying to manage the risk of this happening again. The Respondent commends the Appellant for his lifestyle, but submits that a longer period of stability is needed.

Appellant’s Submissions

35The Appellant submits that he has made the necessary lifestyle changes, as recommended by Dr. T., in order to avoid loss of consciousness in the future. Dr. T. indicated the changes in lifestyle that were necessary, and the Appellant has made those changes. Dr. T. has indicated that he is clear to regain his commercial licence.

36The Appellant submits that his loss of consciousness was caused by dehydration and that perhaps Dr. T. checked the wrong box when he indicated on the Syncope/Loss of Consciousness Form that his condition was atypical vasovagal syncope, rather than syncope with a reversible cause. The Appellant submits that Dr. T. did write dehydration on one of the other forms.

37The Appellant also submits that, contrary to the Registrar’s submission, he did experience warning signs, as what he felt before he lost consciousness was a warning sign, but that he did not know what it was at the time.

F. Analysis:

Did the Appellant have an episode of atypical vasovagal syncope?

38I am satisfied based on all of the evidence that the Appellant had an episode of atypical vasovagal syncope, rather than an episode of syncope with a reversible cause, such as dehydration. Dr. T. indicated on the Syncope Loss of Consciousness Form that the Appellant’s condition was “atypical vasovagal syncope”. I do not accept the Appellant’s suggestion that Dr. T. checked the wrong box, as Dr. T. additionally indicated on the Consult Report that the Appellant’s symptoms are “compatible with vasovagal syncope” and Dr. T. further confirmed his diagnosis of vasovagal syncope in his letter dated March 7, 2017.

39Although Dr. T. advised the Appellant to drink more water and eat more regularly, he did not diagnose the Appellant of having had an episode of syncope with reversible cause.

Is the Appellant’s condition likely to significantly interfere with his ability to drive safely?

40I am also satisfied that the Appellant’s condition is likely to significantly interfere with his ability to drive a commercial vehicle safely.

41The Appellant’s loss of consciousness occurred with no warning or with insufficient warning for the Appellant to pull over safely to the side of the road. Dr. P. wrote in the Medical Condition Report that the episode of syncope occurred with “only seconds of warning” and that the Appellant was “unable to avoid collision.”

42In my opinion, section 19.6.10 of the CCMTA Medical Standards for Drivers provides useful guidance with respect to this case. This standard states that drivers who have had an unexplained or atypical vasovagal syncope are eligible for a commercial licence if it has been 12 months since the last syncopal episode.

43Section 19 of the CCMTA Standards states that the waiting periods relating to syncope may be modified “based on individual factors such as length of any reliable warning symptoms (prodrome), reversible or avoidable precipitating factors, and position from which the individual experiences syncope.” However, the Appellant’s syncope occurred with only seconds of warning. There are no known reversible or avoidable precipitating factors. The Appellant experienced syncope from a sitting position while driving. In the circumstances, I do not find it advisable to modify the 12-month period of stability set out in the CCMTA Medical Standards for Drivers.

44It may be that the Appellant’s change in diet and exercise habits will assist him to avoid future episodes of syncope. However, it has only been five months since the last episode. There has been insufficient passage of time to mitigate the risk that the Appellant will have another episode of syncope while driving a commercial vehicle.

45The Appellant’s Class G licence has been reinstated, as the Ministry has determined that this does not present an unacceptable level of risk. However, there is significantly a greater risk if the Appellant’s Class A licence is reinstated. The potential severity of harm to other road users is greater if the Appellant loses control of a Class A vehicle. Additionally, the Appellant will spend many more hours on the road if he returns to truck driving, increasing the risk that any syncopal episode will occur while driving.

46I understand that Dr. T. feels that the Appellant is safe to drive a commercial vehicle and is unlikely to have another syncopal episode if he follows the recommended instructions. However, I find that there remains a significant risk to road safety if the Appellant returns to truck driving. I base this finding on the passage of only five months since the last episode, the fact that the cause of the syncope was not identified, and the fact that the Appellant did not have sufficient warning of his last syncopal episode to avoid a collision. Accordingly, I am satisfied that the Appellant suffers from a medical condition likely to significantly interfere with his ability to drive a Class A vehicle safely.

G. ORDER:

47For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Minister’s decision to change the class of the Appellant’s driver’s licence pursuant to s. 32(5)(b)(i) of the HTA is confirmed.