M.J. v. Minister of Transportation, 2018 CanLII 59152

Licence Appeal Tribunal

Date: 2018-02-05

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:

M.J.

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

Panel: Peter Savage, M.D., Member Harriet Lewis, Member

Appearances:

For the Appellant: M.J., Appellant

For the Respondent: Steve Grootenboer, Agent

Place and Date of Hearing: By Teleconference December 12, 2017

REASONS FOR DECISION AND ORDER

A. OVERVIEW:

1The appellant M.J. is a 60-year-old professional truck driver with a long and unblemished driving record. On August 19, 2017, the car he was driving left the roadway and entered a ditch, making contact with several trees and shrubs before stopping. The appellant was able to exit the vehicle and walk up to the roadway, apparently unhurt, to await the police who had been called by a passer-by.

2The police report of the incident states that M.J. "advised that he couldn't remember how he left the roadway and believed he blacked out."

3As a result, a report was made to the Minister of Transportation ("MTO", "Minister" or "respondent"), and M.J.'s licence was suspended. On October 13, 2017, M.J.'s driving privileges were reinstated, but downgraded from a commercial designation to a GM licence.

4M.J. is appealing the licence downgrade, denying that he told the police that he blacked out and denying that a blackout is what caused him to leave the road. He submits that his Class A licence should be reinstated, as medical tests have shown him to be in good health, and his doctor has attested that she has no concerns with his driving and does not believe him to be at risk of syncope.

5The respondent argues that because driving a commercial vehicle involves significant risks to other road users, the appellant must remain free of episodes of loss of consciousness for a period of twelve months and must provide further evidence of any residual deficits or other disqualifying medical concerns before his commercial licence is reinstated.

6For the reasons that follow, we confirm the Minister's decision to downgrade the class of the appellant's driver's licence at this time.

B. ISSUES:

7The issue in this appeal is whether the appellant suffers from a mental, emotional, nervous or physical condition or disability likely to significantly interfere with his ability to drive a Class A motor vehicle safely. More specifically, is the appellant's health such that he is at risk of losing consciousness while driving?

8We believe there is sufficient evidence in this matter to answer this question in the affirmative, and therefore confirm the Minister's decision to downgrade the appellant's driver's licence at this time.

C. EVIDENCE:

9The parties disagree as to whether the appellant told the police that he had a syncope, whether he had a syncope and whether he has a medical condition which could lead to a future syncope.

10Although the appellant gave no explanation for leaving the road in his Notice of Appeal, in his oral testimony, he stated that he bent down to retrieve a burning cigarette and lost control of the vehicle. He denies that he told the police that he had blacked out, and says that he had no conversation about the cause of the accident with the police, including with the officer who drove him home. He also testified that he did not tell the police about the burning cigarette, nor did he describe that to his doctor as the cause of his accident when he attended for his post occurrence examinations.

11The police occurrence report states that M.J. "advised he couldn't remember how he left the roadway and believed he blacked out." The report also says that M.J. declined medical treatment, and was alert and coherent when speaking to officers.

12Following the incident, the appellant submitted to an MRI, an ECG, and a Holter Monitor, and the reports were submitted in evidence along with reports from his family physician, Dr. C.B. The results of the Holter monitor entered in evidence were unremarkable for arrhythmia, but the pulse monitor on the EEG showed evidence of intermittent atrial fibrillation and a cardiac assessment was recommended. The MRI showed significant white matter disease with a differential diagnosis of possible vascular disease, poor circulation, migraine or multiple sclerosis.

13Two letters from Dr. C. B. were entered into evidence. In the one letter dated September 20, 2017, Dr. C.B. states that the "aneurysm was not the cause of his recent accident and I have no reason at this point to not recommend he be allowed to return to driving." In the second letter of October 28, 2017, Dr. C.B. writes that the tests did not find any cause of syncope and "...I don't believe him at risk of syncope."

14In oral testimony, the appellant noted that following the accident, and as a result of the testing conducted following, he had been prescribed pills for cholesterol, which is now managed appropriately. He has seen Dr. C.B. three or four times since the accident and intends to follow-up with annual check-ups.

E. THE LAW:

15As this is an appeal of a decision to downgrade a licence from a Class A to a Class G based on a medical condition, the applicable law is as follows:

16The Minister has the authority to change the class of a driver's licence pursuant to s. 32(5)(b)(i) of the HTA. As stated in that section:

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 a driver's licence held by the person, in accordance with the results of the examinations and other prescribed requirements...

17One of the prescribed requirements is set out in s.14(1) of O.Reg.304/94 (the "Regulation") and 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;

18In determining whether a person meets the standard set by s.14(1) 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.

19Paragraph 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. The Tribunal may take the CCMTA Standards into consideration although they are not binding requirements. In this case, the respondent referred the Tribunal to s.19.6.10 of the CCMTA standards pertaining to a "single or recurrent unexplained, single or recurrent atypical vasovagal, or recurrent typical vasovagal syncope – Commercial drivers" which calls for a period of 12 months suspension since the last episode of syncope.

20The jurisdiction of the Tribunal is set out in s. 50(2) of the HTA and allows the Tribunal to confirm, modify or set aside the decision or order of the Minister.

F. ANALYSIS:

21The medical evidence confirmed atrial fibrillation and the presence of white matter in the brain which indicates a number of possible issues. Any one of these conditions could cause a bout of syncope or blackout. On the basis of the medical evidence, the Tribunal cannot be absolutely definitive as to whether the appellant's accident was caused by a sudden and brief loss of consciousness. However, given the possibilities indicated by the medical evidence, the wording of the police report made immediately following the accident, and the fact that the appellant told neither the police nor his doctor about an attempt to retrieve a burning cigarette, it is our view that it is probable that he did have a blackout of unknown origin. It is our considered opinion, that such factors as the presence of cholesterol in his system, his occasional arrhythmia, a possible change of head position when driving or his smoking may have caused a fainting spell or transient ischemic attack. In that case, a quick recovery with no detectable residual symptoms would have been possible.

22The risk of losing consciousness while driving, whatever the cause, is considered to present as more serious in the case of a commercial licence because of the physical and mental demands on persons operating commercial vehicles and because of the potential harm to the driver and others on the road should an accident occur.

23In this case, we have had to weigh this risk against the opinion of the appellant's family doctor that the appellant is fit to drive and is not at risk of syncope. We have also taken into consideration the fact that it has been only four months since the accident.

F. CONCLUSION:

24We find that it is probable that the appellant M.J. did lose consciousness, however briefly and from whatever unknown cause. In that case, until some further period of time has passed, medical follow-up takes place and more health information is assembled, we find there is an unacceptable level of risk of allowing the appellant to operate a commercial vehicle, and a downgrade is warranted.

H. ORDER:

25For 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 is confirmed.