G.W. v. Registrar of Motor Vehicles, 2018 CanLII 128761

DECISION AND ORDER

Date: 2018-09-04

Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a decision of the Registrar of Motor Vehicles to suspend a driver’s licence under subsection 47(1) of the Act

Between:

G.W. Appellant

And

Registrar of Motor Vehicles Respondent

Adjudicators: Dr. Dimitri Louvish, Member; Marisa Victor, Member

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

Place and date of hearing: Teleconference August 9, 2018

REASONS FOR DECISION AND ORDER

A. Overview:

1The appellant is 73 years old with a cardiac condition described as non-ischemic cardiomyopathy which was first diagnosed in 2010. He is an avid runner. He underwent the implantation of a defibrillator (ICD) in 2012. The ICD delivers therapy in the form of a shock should his heart require it. His defibrillator had given him therapy shocks twice before in 2014 and 2015, both times while training. This latest event resulting in a shock took place on June 1, 2018 following a 4km run.

2The appellant reported the event on June 4, 2018 during a previously scheduled doctor’s appointment. That day, the Registrar of Motor Vehicles (Registrar) received a medical condition report from Toronto General Hospital, Dr. E.D., cardiologist specialist, indicating the appellant had a heart condition and that his implanted defibrillator (ICD) had administered 1 shock and 4 antitachycardia pacing (ATPs). Because of this report, the Registrar suspended the appellant’s driver’s licence on the basis of a medical condition. The appellant appeals this decision.

3The question we had to determine was whether the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive safely.

4For the reasons that follow, we find that the appellant’s heart condition is not likely to significantly interfere with his ability to drive safely.

5Accordingly, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

B. ISSUES:

6The issue in this appeal is whether the appellant suffers from a heart condition such that it is likely to interfere with his ability to drive safely.

C. LAW:

7The respondent has the burden of establishing the ground for suspending the licence on a balance of probabilities.

8The respondent has the power under s. 47(1)(g) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) to suspend a driver’s licence for a sufficient reason. Subsection 14(1) of O. Reg. 340/94 (the Regulation) of the HTA states that a holder of a driver’s licence must not suffer from any physical condition likely to significantly interfere with their ability to drive safely.

9Section 14(2)(a) of the Regulation allows the respondent to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (CCMTA Standard) when determining whether the requirements of s. 14(1) are met.

10The respondent relied on two sections of the CCMTA Standards: ss. 3.6.8 and 3.6.29.

11The CCMTA Standard at ss. 3.6.8 applies to non-commercial drivers with ventricular fibrillation (VF). The standard for lifting a licence suspension requires that it has been 6 months or more since their last VF episode.

12The CCMTA Standard at ss. 3.6.29 applies to non-commercial drivers who have had ICD therapy (shock or ATP) delivered and there has been an associated impaired level of consciousness, or the therapy delivered by the device was disabling. The standard for lifting a licence suspension requires that it has been 6 months or more since the event and the standard for the underlying cardiovascular conditions are met.

13We may take the CCMTA Standards into consideration, although they are not binding on us.

D. EVIDENCE

14The relevant documentary evidence before the Tribunal consisted of the following:

a. A medical condition report submitted by Dr. E.D., stating the appellant has heart disease with pre-syncope, syncope or arrhythmia and that “while out running 4k felt dizzy and then had a shock. LCD showed episode of VT at 214 terminated DC shock. Advised not to drive.” Attached to the report was a defibrillator follow-up summary report from the Peter Munk Cardiac Center. It notes the patient received 1 shock and 4 ATP.

b. An email from the appellant to Dr. D.S., dated June 9, 2018 describing the event and stating he will now run at a lower intensity or walk. The email chain includes a response from Dr. D.S. noting the event had to be reported. She states the appellant was lightheaded but not impaired and defers to the expertise of the Tribunal.

c. A letter from Dr. D.S., dated June 17, 2018, advising that the appellant had his episode during exertion and has had prior episodes during exertion, but not at rest. The letter states he did not lose consciousness, but was lightheaded. He did not feel he was impaired nor did the ICD therapy make him feel impaired.

d. A letter from Dr. H.R., dated July 11, 2018, also from the Peter Munk Cardiac Center. The letter documents a follow-up for recurrent ventricular arrhythmia.

e. A letter from Dr. E.D., dated August 2, 2018 stating that the appellant’s appeal of his licence suspension is supported by his regular doctor, Dr. D.S. who is an expert in the field. Dr. D.S. is intimately involved in the follow-up and care of the appellant. Dr. E.D. defers to her opinion.

f. A second letter from Dr. D.S., dated August 3, 2018, stating that in her opinion, the appellant would not be dangerous to himself or others while driving.

15The respondent submitted that both ss. 3.6.8 and ss. 3.6.29 of the CCMTA Standard apply. Both require a six-month waiting period prior to reinstating the appellant’s driver’s licence.

16The appellant testified about his condition. He described the numerous heart tests he has undergone, including stress tests every six months, and Holter tests in September 2017 and May 2018. He stated that his ICD had not discharged during marathons, half-marathons or 10k runs. It had also never discharged while he was driving.

17He also described the events of June 1, 2018 which included him running faster than normal, what he described as “excessive exercise.” He was running and noticed his heart rate was upwards of 180 beats per minute (bpm). As result of that high reading, he stopped and walked for five minutes and his heart rate came down to 100 bpm. He had another .5km to run so he completed his run and then walked home. When he reached his home, he felt lightheaded and lay down. Shortly after, his ICD discharged. He did not lose consciousness. After the discharge, he no longer felt tired. He did not check his heart rate at the time of the event. He believes that the two previous incidents, in 2014 and 2015, which were not reported to the Registrar but were reported to his medical team, were similarly caused by excessive exercise.

18The appellant testified he will restrict his exercise to moderate levels and walk not run now. He wears a heart rate monitor and limits his heart rate to no more than 125 bpm.

19The appellant testified that his medication has been increased and he is now on 12.5 mg of Bisoprolol per day and tolerating that well. Otherwise, the appellant did not report other medication, nor does he drink, smoke or use cannabis.

E. Analysis

20There is no dispute that the appellant has a heart condition for which an ICD was implanted. In addition, there is no dispute the ICD delivered therapy of 1 shock and 4 ATP on June 1, 2018.

21The evidence of the treating medical practitioners is the most significant evidence in this appeal. Dr. D.S. fully supports the appellant’s driver’s licence reinstatement. Furthermore, Dr. E.D., who reported the incident, refers to Dr. D.S. as an expert in her field and defers to her judgement in this case. We find the support of the appellant’s treating medical practitioners persuasive.

22The appellant believes the event was caused by excessive exercise. There is some difference between this ICD event and the previous two ICD events in 2014 and 2015, namely that those therapy shocks were provided while running. This event occurred minutes after running was completed. We find that the evidence still supports that the event was triggered by excessive exercise. In particular, the appellant noted that his heart rate during the run was quite elevated at 180bpm which should have concerned him enough to stop running, but he continued after a short pause. This sequence of events was reported similarly to Dr. D.S. and she concurred that the event was caused by excessive exercise. We accept this conclusion.

23The appellant testified, and we accept his evidence, that he has changed his exercise regime accordingly. His rate control heart medication has increased as well. These changes further support the appellant’s reinstatement of his licence because he is likely eliminating future heart issues requiring ICD therapy by reducing his exercise intensity as well as by taking a higher dose of Bisoprolol as prescribed by his cardiologist following the ICD discharge on June 1, 2018. The respondent relied on the CCMTA Standard when requesting a period of six months after the event prior to reinstating the driver’s licence.

24Although not binding on us, the CCMTA Standard provide guidance as to when a person suffering from a medical condition should resume driving.

25We disagree with the respondent that both ss. 3.6.8 and ss. 3.6.29 of the CCMTA Standard apply. The 3.6.8 of the CCMTA Standard does not apply since the appellant did not have VF (ventricular fibrillation) but only VT (ventricular tachycardia) episode. We believe the appropriate section to refer to is only ss. 3.6.29 of the CCMTA Standard since it most accurately describes the condition of the appellant, who has an implanted ICD. That standard only applies, however, if the appellant received therapy from the ICD and had an associated impaired level of consciousness, or the therapy delivered by the device was disabling.

26It is clear from the evidence that the therapy was not disabling. The appellant stated that he did not feel tired after the therapy.

27With regard to impaired level of consciousness, the appellant stated he felt dizzy, or lightheaded; however, he was not impaired. Dr. D.S., his primary doctor also stated he was not impaired, though she also noted the light-headedness. We accept the evidence of the appellant that he was not impaired and therefore, ss. 3.6.29 of the CCMTA Standard does not apply to the appellant. We therefore do not find that the CCMTA Standard provides a guideline that is helpful in this case.

28We find that under the circumstances, the appellant has shown that, although he has a heart condition, on a balance of probabilities, it is not likely to significantly interfere with his ability to drive safely.

F. ORDER:

29For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the appellant’s driver’s licence is set aside.