B.S. v. Minister of Transportation, 2018 CanLII 59142

Date: 2018-02-02

Appeal under subsection 50(1) of the Highway Traffic Act (the "HTA" or "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:

B.S.

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

Panel: Peter Savage, M.D., Member Zahra Dhanani, Member

Appearances:

For the Appellant: B.S., Appellant

For the Respondent: Steve Grootenboer, Agent

Place and Date of Hearing: By Teleconference November 28, 2017

REASONS FOR DECISION AND ORDER

A. Overview

1B.S. is a 64-year-old man who lives in [ ]. On January 31, 2014, he went through a quadruple bypass surgery. At that time, an Implantable Cardioverter Defibrilator ("ICD") was placed in his heart to offer him support in the event that B.S. experienced any heart related emergencies. Since then, his condition has been stable and he has had no heart related complications. The only medications he takes is Aspirin and he has returned to his normal routine.

2B.S. has kept the ICD in his heart but his doctor has told him he does not need it anymore and he could have it removed at any time. His wife however, insists that he keep it in for her peace of mind. The ICD has never been triggered to turn on since it was implanted.

3The appellant had a commercial class driver's licence but the Ministry of Transportation (the "MTO" or "Minister") downgraded it to a general Class "G" driver's licence because the ICD is still implanted in his heart.

4B.S.' cardiologist and family doctor both are of the opinion that there would be no risk for B.S. to drive a commercial vehicle and to be issued a commercial licence.

5We agree with both of these doctors' opinions which state that the appellant's medical condition will not significantly interfere with his ability to drive safely. We set aside the MTO's decision to downgrade B.S.' commercial class driver's licence.

B. ISSUES:

6The issue in this appeal is whether B.S. has a medical condition that is likely to significantly interfere with his ability to drive a commercial class motor vehicle safely. In order to answer that question, we will address the following issues:

a. Does B.S. have a medical condition?

b. If a medical condition is proven, is it likely to significantly interfere with his ability to drive safely?

C. LAW:

7The Minister has the power under s. 32(5)(b)(i) of the Act to change the class of a driver's licence in accordance with the results of a medical examination or other prescribed requirements.

8One prescribed requirement under s. 14(1) of O. Reg. 340/94 (the "Regulation") is that the driver must not suffer from a medical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely.

9Under s. 14 (2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.

10Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Minister.

D. ANALYSIS:

11In many cases, the first question to be determined is whether the appellant suffers from a particular medical condition or addiction. In this case, there was agreement by both parties that B.S. has had quadruple bypass surgery with the implantation of an ICD.

12The issue to be determined now is whether this condition still presents a risk to B.S.' safe operation of a motor vehicle.

13B.S.' family doctor and his heart specialist both agree the ICD is not needed for secondary protection anymore. In a letter dated November 1, 2017, Dr. G.P. confirmed that B.S. is in good condition, stating:

"your left ventricle, post bypass now works optimally...there no longer exists the risk of ventricular fibrillation. The ICD has never fired since its implantation, it is no longer required. [Emphasis added]"

14It is clear that the by-pass surgery was a success and the ICD is not needed for the future. It has been kept in place not because of a medical recommendation but for personal reasons, as it gives his wife some sense of security should anything happen in the future even though this is not indicated.

15B.S. has made significant life changes and is very health conscious. He has reduced stress in his life and has set limits for example, he has told his employer that he will not be driving long distances anymore or to Toronto where the traffic is more intense. It is also important to note that his primary job is that of a mechanic and he only occasionally drives a tilt type truck to deliver equipment to job sites.

16B.S. has done well for 3 years since the bypass.

17He has regular medical follow up and is committed to ICD checks every 6 months. All ICD checks since insertion have shown no ventricular tachycardia or fibrillation.

18The MTO cardiologist disagrees with B.S.' cardiologist and family doctor. He has found that B.S. should not have the ability to drive commercially. The only reason given for this is the continued retention of the ICD.

19We cannot agree with this reasoning as the ICD only continues to be implanted because of a personal decision made by the appellant and his wife. This was not a medically recommended decision.

20Both the appellant's cardiologist and his family doctor have more detailed knowledge of this individual case and we put more weight on their submissions and recommendations.

21We also believe B.S. was in a good position to speak on his own behalf. He seemed to have a good grasp of his condition and more importantly was very concerned about taking care of himself and not putting himself at risk. We believe that should the driving of a commercial class vehicle put his health at risk, he would not choose to do this. The appellant gave clear and straight forward evidence and he was quite compelling in how he spoke about his and his wife's concern for safety.

22The report from the doctor for the MTO, Dr. S., states that there is room in the CCMTA guidelines to allow the appellant to drive commercially if there is less than 1% chance of fibrillation. Contrary to Dr. S.' opinion, we must agree with the family doctor and cardiologist that have seen, examined and can assess B.S.' condition the best. The cardiologist, Dr. R., went as far as to say that B.S. is fit for a DZ licence.

E. CONCLUSION:

23There was no evidence provided that B.S. was at risk if he were to drive a commercial class vehicle. We find that the Minister has not established that B.S.' medical condition is likely to significantly interfere with his ability to drive a commercial class vehicle safely.

24B.S. had a very well supported case with various medical letters of support from his doctors. We found this evidence to be the most compelling.

F. ORDER:

25For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Minister's decision to downgrade the appellant's driver's licence is set aside.