R.F. v. Minister of Transportation, 2019 CanLII 25770

Licence Appeal Tribunal

Date: 2019-01-08

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 to change the class of a driver’s licence under subparagraph 32(5)(b)(i) of the Act.

Between:

R.F. Appellant

-and-

Minister of Transportation Respondent

DECISION AND ORDER

Panel: Dimitri Louvish, M.D., Member Harriet Lewis, Member

Appearances: For the Appellant: R.F., Appellant For the Respondent: Stella Velocci, Agent

Place and date of hearing: By Teleconference November 14, 2018

REASONS FOR DECISION AND ORDER

A. OVERVIEW:

1The appellant R.F. is 67 years old and has spent most of his working life as a driver of commercial vehicles of many kinds. In 2014 he was diagnosed with coronary artery disease which was initially treated medically. In November, 2016, he suffered a myocardial infarction and required surgical intervention, specifically overlapping stents and a temporary intra-aortic balloon pump. At or about that time his driving privileges were suspended indefinitely.

2After a series of favorable medical reports, R.F. was advised in a May 3, 2018 letter from the Registrar that he had “been approved for a Class “GM’ licence “. However, that letter goes on to say that “due to your heart condition requiring inotropic support, you are not eligible for commercial licence”.

3On September 18, 2018, R.F. appealed the decision of the Registrar with respect to his eligibility for an ABM/Z commercial licence and the matter was heard on November 6, 2018.

4For the reasons which follow, we set aside the Registrar’s decision to change the class of R.F.’s licence.

B. ISSUES:

5The issue in this appeal is whether the appellant suffers from any condition or disability likely to significantly interfere with his ability to drive a commercial motor vehicle safely.

C. EVIDENCE:

6R.F. tendered as evidence of his recent medical history and current condition, a letter dated September 28, 2018 from his cardiac specialist Dr. R.S. The letter traces in detail, the history of R.F.’s cardiac disease, angiogram and medical treatment from 2014 to the present.

7As noted, he was initially treated medically but in November 2016 he was diagnosed with an inferior thrombotic distal RCA which required 2 overlapping drug eluting stents “requiring the temporary use and need for intra-aortic balloon pump insertion”.

8In December 2016, R.F. had a “single episode of Atrial flutter” which was treated with TEE guided cardioversion. He was not prescribed anti-coagulants at that time and has had no recurrences.

9According to Dr. R.S., R.F.’s current diagnosis is that of “mild to moderate ischemic cardiomyopathy”. Post operatively he was prescribed daily medication consisting of Plavix (75 mg), Pantaloc (40 mg), Crestor (20 mg) and Coversyl (4 mg).

10On September 28, 2018 Dr. R.S. administered an electrocardiogram and re-assessed R. F.’s medication. The electrocardiogram results showed “good functional status” with no evidence of inducible ischemia. His medication regime was determined to be appropriate, and he was scheduled for a 6 month follow-up.

11Referring to the issue of R.F.’s commercial licence in his letter of September 28, Dr. R.S. wrote: “He has recovered from an inferior myocardial infarction and has only mild to moderate ischemic cardiomyopathy [ejection fraction greater than 40%] and no significant symptoms. As per the most recent CCS recommendations, he would qualify for a reinstatement of his commercial licence from a cardiac perspective.”

12R.F. has been operating motor vehicles in Ontario since 1967 and according to the Driver Record Search submitted by the respondent, has had a clear driving record with the exception of one violation for speeding at 65 KMH in a 50 KMH zone.

13Since his cardiac stability has been achieved, R.F. has been working as a laborer for a friend who owns an asphalt laying business. Upon reinstatement of his commercial licence he hopes to resume driving truck for the asphalt business and for farmers who are sending their crops to market.

14The Registrar’s agent confirmed that the respondent is relying on s.3.6.42 of the CCMTA guidelines. That section indicates that drivers with congestive heart failure are not eligible for a commercial licence if they are receiving intermittent inotropes or are using a left ventricle assist device.

D. THE LAW:

15The Registrar has the power under s.32(5)(b)(i) of the HTA to downgrade a drivers licence for any sufficient reason.

16In this case, the applicable reason is found in Ontario Regulation 340/94 of the HTA which states:

14. (1) An applicant for or a holder of a driver's licence must not,

(b) 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.

17In 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.

18Paragraph 4(2)(a) of the Regulation allow 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.

19The Tribunal may take the CCMTA Standards into consideration although they are not binding requirements. In this case, the respondent referred the Tribunal to s.3.6.42 of the CCMTA which recommends that commercial drivers who rely on intermittent inotropic support or use a left ventricle assist device, should not be licensed.

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.

E. ANALYSIS:

21The test the Tribunal must consider is whether the appellant suffers from a physical condition or disability likely to significantly interfere with his ability to drive a commercial vehicle safely.

22There is no question that R.F. suffers from coronary artery disease. The question is whether his disease, as it currently is being managed, significantly interferes with his ability to operate a commercial vehicle safely or whether his condition precludes him from doing so.

23In downgrading R.F.’s licence the Minister has relied on s.3.6.42 of the CCMTA which provides that the use of a left ventricle assist device or receiving intermittent inotropes as are indicators of unsuitability for commercial drivers. R.F. neither uses the assist device nor is he receiving intermittent inotropes. We therefore do not rely on the CCMTA standard as a determining factor in this case.

24The evidence provided by the appellant through his cardiac specialist is that his cardio-vascular disease has been treated and continues to be both treated and followed-up appropriately. We accept Dr. R.S.’s opinion that from a cardiac perspective, R.S. would qualify for a reinstatement of his commercial licence.

25When giving evidence the appellant’s answers to our questions were open and straightforward and we find him credible. He is a light social drinker and does not use recreational drugs. He smokes 2 cigarettes a day and is aware that he must stop. He has been working for a friend and is anxious to resume driving delivery trucks for long-time customers with his ABM/Z licence. He testified that if Dr. R.S. believed there was any risk of unsafe driving he would order a stress test and “pull his license”.

F. CONCLUSION:

26We find in the circumstances, based on the evidence, that the Minister has not met his burden to establish that the appellant currently suffers from a medical condition or disability likely to significantly interfere with his ability to drive a commercial vehicle safely.

G. ORDER:

27For the reasons set out above, pursuant to subsection 50(2) of the HTA, we set aside the May 3, 2018 decision of the Registrar with respect to his eligibility for a commercial licence.