Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2017-10-19

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:

C.J.P. Appellant

and

Minister of Transportation Respondent

DECISION AND ORDER

Panel: Kevin Flynn, M.D., Member Katherine Livingstone, Member

Appearances: For the Appellant: Self-represented For the Respondent: Sanjay Kapur, Agent

Place and date(s) of hearing: By Teleconference August 23, 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 license pursuant to section 32(5) (b) (i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”). The decision to change his class of licence was made after the appellant had a blackout while driving a commercial vehicle and was involved in a collision. The appellant filed a Notice of Appeal on July 13, 2017.

2For the reasons that follow, we find that the appellant does not suffer from a mental or physical condition that is likely to significantly interfere with his ability to drive safely. Accordingly, we set aside the Registrar’s decision to suspend the appellant’s Class ‘A’ driver’s licence.

B. ISSUE:

3Does the appellant have a mental, emotional, nervous or physical condition likely to significantly interfere with his ability to drive a Class “A” motor vehicle safely?

C. EVIDENCE:

Appellant’s Evidence

4The appellant gave oral evidence and also relied on his written statement in the Notice of Appeal. He told the Tribunal that on January 6, 2017 he was driving a truck on highway 401 at approximately 10:20 a.m. when he had a blackout, lost control of his vehicle and collided with a car. He has no memory of the collision and only remembers waking up in an ambulance.

5In the 24 hours prior to the accident he said he had worked a full day, went to sleep between 11:00 and 11:30 p.m., had not consumed alcohol, awoke at about 7:00 a.m. and left for work about 7:45 a.m. after a light breakfast. He was driven to a dealership to pick up a truck which he was to deliver to a customer. There appeared to be nothing abnormal about his activities prior to the motor vehicle accident (“MVA”).

6The appellant said that he had never experienced a blackout before and the only medication he was on was for high blood pressure. He said he saw a doctor every few months to monitor his blood pressure.

7The day of the accident the weather was sunny, the road was smooth and he did not experience any problems with the road surface or glare. He denied that he had an aura or pre-syncope symptoms. He had no chest pain or palpitations that would have warned him that he was about to lose control of his vehicle. The appellant had no explanation for the blackout or the accident other than to speculate that the truck he was driving had a cabin chassis with a long rear that “bounced”.

8He told the Tribunal he had been driving since the accident, after his class “G” licence was reinstated, and had not encountered any difficulty. He said if he was driving well with a class “G” licence he could not understand why he couldn’t get his class “A” licence reinstated.

The Respondent’s Evidence

9On January 6, 2017, the appellant was seen at the hospital and the attending physician completed a Medical Condition Report. This report was forwarded to the Registrar. This was done pursuant to s. 203 of the Act which requires physicians in Ontario to advise the Registrar of Motor Vehicles of the name, address and clinical condition of a person sixteen years or over who suffers from a condition that may make it dangerous for the person to operate a motor vehicle. The condition noted on the report was that the appellant suffered a blackout, loss of consciousness, or awareness, and that the appellant may have had a seizure.

10Upon receipt of the Medical Condition Report, the Registrar issued a suspension of the appellant’s driving privilege effective January 28, 2017.

11The respondent introduced an epilepsy and seizure assessment dated February 12, 2017, received by the Registrar, from the appellant’s family physician. The report showed a normal Electroencephalogram (EEG), CT scan, 44 hour Holter monitor and no evidence of seizure activity. The family physician indicated that it was “unknown if the patient lost consciousness prior to MVA or after.” The physician also wrote that “I do not believe he had a seizure at the time of the MVA”.

12The respondent also introduced a medical report completed by the appellant’s doctor in 2015 when the appellant sought to change his driver’s licence class. The report indicated a past history of depression not requiring medication; and that the appellant had mild strabismus (cross eyed) which did not affect his vision.

13The Registrar reinstated the appellant’s Class ‘G’ licence on April 11, 2017, and informed the appellant that to be considered for reinstatement of his Class ‘A’ licence he must have his physician confirm a twelve-month period free from further episodes.

D. LAW:

14The Minister of Transportation has the authority to change the class of a driver’s licence under s. 32(5)(b)(i) of the Act. 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…

15The 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.

16One of the prescribed requirements is set out in s. 14(1) of O. Reg. 340/94 (the “Regulation”), 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.

17In 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.

18Paragraph 14(2)(a) of the Regulation allows the Minister to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA Standards”) when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

19Subsection 50(1) of the Act and s. 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 Act, confirm, modify or set aside the decision or order of the Minister.

20The Minister has the burden of establishing the ground for changing the class of licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the decision or order of the Minister.

E. ANALYSIS:

21The respondent relies on CCMTA 19.6.10 to assert its position that the appellant should be free of episodes of syncope for 12 months before consideration is given to reinstate his class ‘A’ licence. The appellant’s position is that he does not know why he lost consciousness, other than perhaps as a result of bouncing caused by the chassis. Further the appellant argues he has undergone medical testing that ruled out anything that would put his driving at risk, and therefore submits that his licence should be reinstated.

22There is no doubt that the appellant had a sudden loss of consciousness while driving a truck on the morning of January 6, 2017, causing his vehicle to cross into the adjacent lane and collide with another vehicle. He was unconscious for at least five minutes and probably much longer because he regained consciousness in an ambulance. The cause of his episode of sudden loss of consciousness has not been identified. The evidence does not show that he had a seizure. Documentary medical evidence from the ambulance personnel or the Emergency Room physician was not presented. Other than the on-scene police report filed with the Ministry, no explanation for the sudden loss of consciousness has been adduced. The police report on the incident indicated that there were no physical injuries to either driver, therefore it is unlikely that the appellant suffered a head injury in the collision that might be associated with loss of consciousness.

CCMTA Chapter 18 states in summary that;

syncope (fainting) is a partial or complete loss of consciousness resulting from a temporary reduction in blood flow to the brain. Onset is relatively rapid and recovery is generally prompt, spontaneous and complete. Causes include cardiovascular disease and neurological disorders. In some cases no underlying cause can be found. The most common types include vasovagal syncope which is triggered by an exaggerated and inappropriate nervous system response to a particular stimulus with alteration in heart rate and blood flow and subsequent reduction in blood pressure. The stimulus can be any of a wide range of events such as dehydration, intense emotional stress, anxiety, fear, pain, hunger or the use of alcohol or drugs, also forceful coughing, turning of the neck or wearing a tight collar.

23The tribunal finds that it is possible, but impossible to prove, that the bouncing of the rear chassis, as suggested by the appellant, triggered a vasovagal response. The appellant was asked for his opinion on the cause of the blackout, and he suggested the ‘bouncing’ effect. There is no rationale for this. We find that the cause of the syncope is unexplained.

24The relevant CCMTA Guideline 18.12.10 applies to commercial drivers with a single or recurrent unexplained atypical vasovagal syncope. Atypical vasovagal syncope is defined as a vasovagal syncope that occurs in the sitting position and is not preceded by warning signs that allow the driver to pull off the road before losing consciousness. The standard is that the commercial driver is eligible for a licence if it has been 12 months since the last episode of syncope, and the conditions for maintaining a licence are met. He must follow the treatment regime and his physician’s advice regarding prevention of syncope and reassessment is recommended one year after the initial assessment.

25The CCMTA guidelines although instructive, are not binding on the Tribunal. The Tribunal has weighed all of the oral and written testimony. In particular the Tribunal has considered that the appellant’s syncope is unexplained and nine months have elapsed without a further episode of loss of consciousness or blackout or recurrence. In the case of commercial truck drivers there is a higher standard of care considering long hours of driving and greater risk of exhaustion with greater consequence following loss of control. However, in the circumstances we find that the risk of recurrence has been sufficiently reduced after nine months. We find, on the balance of probabilities, that the respondent has not met their burden of establishing the appellant suffers from a condition likely to significantly interfere with his ability to drive a Class ‘A’ vehicle safely.

F. CONCLUSION:

26For the reasons set out above, pursuant to subsection 50(2) of the Act, the Registrar’s decision to suspend the appellant’s commercial driver’s licence is set aside.