Date: 2019-02-27

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:

R.Z.

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

PANEL: Isla McPherson, M.D., Member, Panel Chair Sandeep Johal, Member

APPEARANCES:

For the Appellant: R.Z., Self-represented

For the Respondent: Kyle Biel, Agent

Observer: Dr. Peter Savage, M.D. Member, LAT

Heard by teleconference: October 11, 2018

REASONS FOR DECISION AND ORDER

OVERVIEW

1The appellant appeals the May 28, 2018 suspension of his driver’s licence by the Registrar of Motor Vehicles (the “Registrar”).

2Pursuant to s. 203(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), all medical practitioners shall report every person who is at least 16 years old who, in the opinion of the medical practitioner, has or appears to have a prescribed medical condition, functional impairment or visual impairment.

3The Registrar suspended the appellant’s driver’s licence on May 28, 2018, under s. 47(1) of the HTA due to the appellant having a medical condition that would affect his ability to safely operate a motor vehicle.

4The letter notifying the appellant stated that the driver’s licence would be reinstated when the appellant files a satisfactory medical report.¹

5According to the Registrar, they received a medical report indicating the appellant had a medical condition of Syncope/Loss of Consciousness and as a result they determined the appellant’s driver’s licence should be suspended.²

6The appellant’s G-class driver’s licence was reinstated on August 2, 2018 and the issue before us is whether the appellant’s commercial vehicle licence should be reinstated.

ISSUE

7The issue in this appeal is whether the appellant has a medical condition, specifically syncope/loss of consciousness and, if so, is that medical condition likely to significantly interfere with his ability to drive a commercial vehicle safely. In order to answer that question, we will address the following issues:

(a) Did the appellant suffer from syncope/loss of consciousness, if yes, then

(b) Is the appellant’s medical condition likely to significantly interfere with his ability to drive a commercial vehicle safely?

CONCLUSION

8The panel has reached a split decision and in accordance with section 4(6) of the Licence Appeal Tribunal Act³ the decision of the panel chair is the decision of the panel.

9The panel agrees that the appellant suffered from syncope/loss of consciousness however the panel is split with respect to whether his medical condition is likely to significantly interfere with his ability to drive safely.

10The decision of the panel chair is that the appellant’s medical condition is likely to significantly interfere with his ability to drive safely, therefore the downgrade of the appellant’s driver’s licence is confirmed.

LAW

11The Registrar has the power under 32(5)(b)(i) of the HTA, to downgrade a driver’s commercial licence for a sufficient reason.

12One sufficient reason is under subsection 14(1)(a) of O. Reg. 340/94 (the Regulation) of the HTA states that a holder of a driver’s licence must not 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.

13Section 14 of the Regulation requires a driver to provide satisfactory evidence that he or she is able to drive safely and that the Minister of Transportation can consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”).⁴ Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

14The Registrar has the burden of establishing the ground for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Registrar.

DECISION OF THE CHAIR

EVIDENCE AND ANALYSIS

15On April 28, 2018 the appellant, who is a 57 year old male, was driving an 18-wheel truck down an interstate in Wyoming when he suffered an alleged syncopal episode and lost control of his vehicle. The vehicle hit the guardrails and then came to a stop. The appellant was assessed in a local Emergency Room by Dr. F. on the same day of the accident. He was advised by Dr. F. to follow up with his family physician Dr. R. upon his return to Canada. The appellant followed up with Dr. R. on May 8, 2018. She subsequently sent the appellant for a number of investigations and referred him to a cardiologist (Dr. Ri.) and neurologist.

16I agree with the reasons of my co-panelist for finding that the appellant suffered an episode of syncope. I also find that the appellant’s medical condition is likely to significantly interfere with his ability to drive safely, for the following reasons.

17In my opinion, section 19.6.10 of the CCMTA Medical Standards for Drivers provides useful guidance with respect to this case. These Standards state that drivers who have had unexplained or atypical vasovagal syncope are eligible for a commercial licence if it has been 12 months since the last syncopal episode. The CCMTA Standards also identify that the waiting period may be adjusted based on factors including the length of any reliable warning symptoms, reversible or avoidable precipitating factors and the position in which syncope was experienced. These three factors that may modify the 12 month waiting period are all addressed below:

A. Warning Symptoms.

18The appellant was assessed the same day of the accident by Dr. F., an Emergency Room physician in Wyoming. Dr. F.’s consultation note reads, “He states at about 9:30 he was feeling fine, but all of a sudden bee [sic] somewhat lightheaded and immediately he had an apparent syncopal episode”. A consultation report from Dr. Ri., the cardiologist who assessed the appellant after his return to Canada, was provided as well. In his report Dr. Ri. states, “He says without warning he suddenly lost consciousness”. Dr. Ri.’s report also states that on the day of the accident, “he [the appellant] felt entirely well with no other symptoms”. These consultation reports outline that there were no apparent warning symptoms that would allow the appellant sufficient time to safely pull over to the road side.

B. Reversible / Avoidable Precipitating Factors.

19The appellant had several investigations including lab work, EKG, echocardiogram, Holter monitor, stress test, carotid Doppler and MRI of his head. These investigations did not identify a reversible or avoidable factor that precipitated his syncope. Therefore, at this time there is no known factor that can be treated or modified in order to reduce the risk of future syncopal episodes.

20Additionally, Dr. Ri.’s consultation report indicates that he was concerned that the appellant’s syncopal episode could have been precipitated by a cardiac arrhythmia. In his report, Dr. Ri. writes, “Because of the suspicion of arrhythmia, I am going to arrange for a two week holter. If this is unremarkable, I think I might consider an internal loop recorder to try and catch any future spells particularly given his occupation.” Loop monitors are an investigative tool used to monitor the heart rate and rhythm in order to detect cardiac causes of syncope. They are commonly used for patients with less frequent symptoms of syncope and can be worn for longer durations. In the appellant’s oral testimony he identified that he declined further investigation offered by Dr. Ri. at a second appointment. As a result, I conclude that there is a reasonable suspicion for a cardiac arrhythmia causing the syncopal episode, which has not been completely investigated to the treating cardiologist’s satisfaction and therefore may pose risk of further episodes.

21In addition, in the appellant’s oral testimony, he reported that he canceled an appointment with the diagnostic imaging department for another test as well as an appointment with a neurologist in Cambridge, ON. As syncope can be mimicked by neurological causes, referral for consultation with a neurologist is a reasonable step. Unfortunately, we have no neurological opinion as the appointment was canceled by the appellant. As a result, I conclude that neurological causes of syncope have not have been completely investigated and may pose risk of further episodes

C. The Position in Which Syncope was experienced.

22Both parties agreed the syncopal episode occurred in the sitting position as it occurred while the appellant was driving. The position in which syncope was experienced is relevant because if syncope occurred while standing it suggests possible alternative etiologies that may be easily modifiable and thus preventable. For example, the CCMTA guidelines has a category of syncope titled “typical syncope”. It is defined as, “a vasovagal syncope that occurs when standing and is preceded by warning signs that are sufficient to allow a driver to pull off the road before losing consciousness.” A single episode of typical vasovagal syncope requires no restrictions to either a non-commercial or commercial driver’s licence in contrast to atypical vasovagal syncope.

23It is important to acknowledge that the CCMTA guidelines are not binding and need to be applied along with consideration of individual characteristics in each case. However, I have considered relevant factors that would decrease or change the waiting period and have determined that these do not apply to the appellant’s case. Furthermore, from the information provided, it appears that the syncope has not been completely investigated making it difficult to assess risk. As such, I do not find it advisable to modify the 12 month waiting period set out in the CCMTA Medical Standards for Drivers.

24This case highlights the important distinction between a commercial and non-commercial driver’s licence as the waiting period differs. The CCMTA Medical Standards for Drivers also provides helpful guidance as to the importance of differing recommendations for commercial and non-commercial drivers. This publication identifies that there are two important predictors of risk while driving: the time spent driving and the environment in which driving takes place. Commercial vehicle operators spend more hours driving, often face more adverse driving conditions, are not always able to choose their hours of work and may not be able to readily cease driving if they become unwell while working. In addition, potential consequences of a collision to the driver and other road users are far more serious for commercial drivers. For these reasons, standards of medical fitness appropriately differ between commercial and non-commercial drivers.

25While Dr. Ri.’s report identifies that the appellant is likely safe to return to driving if there are no further episodes after 12 weeks, Dr. Ri. did not identify if the return to driving should be non-commercial or commercial. Given that Dr. Ri. recommended further investigation to assist with understanding if the appellant had suffered a cardiac arrhythmia, I conclude that Dr. Ri.’s advice regarding return to driving was intended to apply to a G class licence (non-commercial licence), not a commercial licence. Furthermore, Dr. Ri. did not provide a medical rational for a 12 week waiting period. In the CCMTA guidelines, there is no mention of a 12 week waiting period for a single episode of atypical syncope.

26In summary, this 57 year old man suffered an episode of atypical vasovagal syncope without warning while driving an 18 –wheel vehicle down an interstate. He has undergone several diagnostic investigations and consultation with a cardiologist that have not identified an etiology and thus have not allowed for modification of risk or prevention of further episodes. Therefore, I conclude that on the balance of probabilities, the appellant’s medical condition remains likely to interfere with his ability to drive a commercial vehicle safely. As the CCMTA guidelines are intended to provide expert advice under these circumstances, I rely on to their 12 month asymptomatic waiting period, as I have found no reason to disagree with or modify their recommendations. For these reasons, I am in agreement with the Ministry’s decision to downgrade the appellant’s licence until he is asymptomatic for a 12 month period.

DISSENTING OPINION

Sandeep Johal, Member (dissenting):

(a) Did the appellant suffer from syncope/loss of consciousness?

27It is my finding that the appellant suffered from an episode of syncope or a loss of consciousness

28The appellant testified during the hearing that he fell asleep and doesn’t remember what happened at the time of the accident. However he does not report to any of the doctors in the medical reports that he fell asleep. The emergency room report from April 28, 2018 states that “…he was feeling fine, but all of a sudden (became) somewhat lightheaded and immediately he had an apparent syncopal episode…”⁵

29On May 14, 2018 the appellant’s family doctor completed a Medical Condition Report that was sent to the respondent and check marked the box with the following medical condition that the appellant suffered from, “Blackout or Loss of Consciousness or Awareness”⁶

30A report dated May 15, 2018 from Dr. Ri., states “(the appellant) says without warning he suddenly lost consciousness but he thinks it was only for about 6-8 seconds.”⁷

31The onus is on the registrar to prove on a balance of probabilities that the appellant has a medical condition that is likely to significantly interfere with his ability to drive a commercial vehicle safely, and as a result of the medical documentation referred to above, I find that the appellant more likely than not, had a momentary loss or consciousness or a single episode of syncope. The appellant has not provided any further evidence to corroborate his submissions that he did not have syncope or a loss of consciousness but rather he fell asleep and therefore I find this to be insufficient to overcome the medical evidence of the Registrar that the appellant suffered syncope or a loss of consciousness.

32Establishing that the appellant suffered from this medical condition is not sufficient alone to suspend or downgrade a driver’s licence, it must be established that the appellant’s episode of syncope or loss of consciousness is likely to significantly interfere with his ability to drive a commercial vehicle safely. I will now turn to discuss his ability to drive safely.

(b) Is the appellant’s medical condition likely to significantly interfere with his ability to drive a commercial vehicle safely?

33The onus is on the Registrar to prove on a balance of probabilities that the appellant’s single episode of syncope or loss of consciousness is likely to significantly interfere with his ability to drive a commercial vehicle safely.

34In my opinion, the Registrar has not satisfied its onus and it is my finding that the appellant’s medical condition is not likely to significantly interfere with his ability to drive a commercial vehicle safely as he has completed several medical tests which were all negative and his medical practitioners have cleared him to resume driving and for the following reasons.

35The appellant complied with the condition on his Notice of Suspension of Driver’s Licence, that his driver’s licence “will be reinstated when you file a satisfactory medical report.”⁸

36Page 13 of the respondent’s medical brief is a medical review process fact sheet and provides information on how to have a licence reinstated and lists the appeal procedures as follows;

The section for “Reinstating a licence” states that “Your licence will be reinstated if:

• your report indicates that you meet the medical standards to drive, and

• if there are no other outstanding suspensions or requirements on your driving record.

37The appellant’s family doctor referred him to cardiologist, Dr. Ri. who notes in his report dated May 15, 2018 that the appellant is a truck driver and he goes on to state that a driving ban of 12 weeks is quite reasonable and if the appellant has no recurrence in that time he could return to driving.⁹

38The appellant’s family doctor, Dr. R. completed a Syncope/Loss of Consciousness form on July 24, 2018, which stated that the appellant had a single episode of “Atypical vasovagal syncope (i.e. occurs in the sitting position or is not preceded by warning signs, but is still diagnosed as vasovagal syncope.)” Then Dr. R. did not check-mark yes or no, but rather she check- marked “N/A” for not applicable to the question of “Has the underlying cause been successfully treated or resolved.” In part 4 of the form under additional comments or information, she writes: “Patient had syncope on April 28. He was assessed by cardiologist, no obvious cause found. He had MRI & carotid ultrasound, holter test done. Cardiologist recommended he can drive after 12 weeks…” Dr. R. also notes in part 3 of the form that the appellant has been prescribed medication and that he adheres to the recommended treatment regimen and has not demonstrated any pattern of non-adherence, such as a misuse of medication or missed appointments.

39On August 17, 2018, Dr. R. sent a letter addressed to “To Whom It May Concern:” stating the following:

“Patient had MVA on April 28, 2018, where he had a brief loss of consciousness. He was thoroughly investigated and was assessed by Cardiology. He had EKG, Echocardiogram, Cardiac stress test, Holter Monitor, Carotid Doppler ultrasound, MRI scan Head (sic). All his investigations have been negative. He did not need any new medication or treatment after this episode.”¹⁰

40The appellant wore a Holter monitor for 14 days and also kept a diary and indicated there were no symptoms.¹¹

41In my opinion, the appellant has done everything that was required of him to have his medical condition assessed, he has completed six different tests according to his family doctor’s letter dated August 17, 2018, all have been negative and his own medical practitioners did not feel the need to prescribe any new medication. With the onus on the Registrar, I find that they have not satisfied their onus to prove that there is a risk of recurrence for the appellant that may occur and whether by waiting 12 months means there is less risk of a recurrence as opposed to 12 weeks which is the waiting period the appellant’s medical practitioners have recommended.

42Despite the medical information from the appellant’s doctors, the respondent is seeking a confirmation that the appellant has remained free from syncopal episodes for 12 months in order to regain his commercial driver’s licence.¹²

43The respondent submits that Dr. Ri. cleared him to drive, but it was not for the purpose of a commercial licence. I disagree with the respondent. Dr. Ri.’s report specifically noted the appellant’s occupation as a truck driver and further made reference to his occupation on page 2 of his report dated May 15, 2018 and then goes onto state “if he has no recurrence…he could return to driving.”¹³

44The respondent further submits the correct standard has been applied in accordance with the CCMTA Standards which recommends a suspension of 12 months for a person with atypical vasovagal syncope. However, the Registrar has not met their onus to persuade me why a 12 month ban on driving a commercial vehicle is justified considering his medical practitioners have cleared him to drive. I will now proceed to discuss the CCMTA Standards.

Applicability of the CCMTA Standards

45As discussed above in paragraph 13, the CCMTA Standards are not binding on the Tribunal. The standards also state that driver fitness determinations will be based on the individual driver’s characteristics and abilities rather than the presumed group characteristics and abilities of people with that medical condition and that driver fitness authorities must make fitness determinations on an individual basis.¹⁴ This principle was confirmed by the Supreme Court of Canada¹⁵ and this case is also referred to throughout the CCMTA Standards.

46The CCMTA Standards section 5.4 Principle 4-Reviewing and considering the best information available states that “in the case of drivers with episodic impairments, driver fitness authorities have to rely on the results of medical assessments and informed opinion as the best information available for determining fitness to drive.”¹⁶ “This means that the standards are the starting point for decision-making but they may not apply to every individual.”¹⁷

47Section 14(2) of the Regulation states the Registrar can (emphasis added) consider the CCMTA Standards and in keeping with the spirit of the CCMTA Standards and the principle adopted by the Supreme Court of Canada¹⁸ the appellant’s individual circumstances must be considered.

48The appellant’s medical practitioners conducted numerous tests which were all negative and no new medication was required and recommended a 12 week prohibition from driving. In my opinion, I take the doctors’ reports to state that they believe that if his syncope/loss of consciousness were to recur, it would likely do so within 12 weeks.

49The Registrar has not provided any submissions or evidence on the likelihood of his syncope/loss of consciousness recurring within 12 months and therefore a ban on driving a commercial vehicle is justified for that period.

50The appellant has subjected himself to multiple tests at the request of the respondent and based on the recommendations of his medical practitioners. All the tests came back as negative and a medical opinion is provided that the appellant is able to drive after a period of 12 weeks. I am not persuaded by the Registrar that the appellant’s condition is significantly likely to interfere with his ability to drive a commercial vehicle safely unless he serves a 12 month commercial vehicle driving ban. The appellant has provided medical documentation to state that all investigations have been negative, he does not need any new medications,¹⁹ and that he is able to drive.

51If the appellant’s medical practitioners were not concerned about any warning symptoms, reversible or avoidable precipitating factors and the position in which the appellant experienced his episode of syncope, then in my opinion, a 12 month ban would not be required. The Registrar has not persuaded me on why a 12 week ban as recommended by the appellant’s medical practitioner is not sufficient for the appellant.

52If the Registrar relied on the appellant’s medical practitioners’ medical reports to institute a commercial driving ban, they have not persuaded me on why subsequent medical reports that clear the appellant’s health and recommend his return to driving is not sufficient.

53Furthermore, the Registrar has not provided any submissions or evidence on whether after 12 months the appellant is less likely to suffer a recurrence which would justify a 12 month ban.

54The appellant has provided the medical information that the Registrar has requested and in keeping with the requirements of the CCMTA to individually assess based on the results of medical assessments²⁰ it is my finding that the appellant’s commercial driver’s licence should be reinstated as his medical condition is not likely to significantly interfere with his ability to drive safely.

ORDER

49For the reasons set out above from the panel chair and, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to downgrade the class of the appellant’s driver’s licence is confirmed.

Footnotes

1. 1Notice of Suspension of Driver’s Licence dated May 28, 2018.
2. 2Letter from Deputy Registrar of Motor Vehicles dated May 25, 2018.
3. 3Resolving deadlock, if a panel of the Tribunal consists of two members and they do not agree on a decision, the decision of the chair of the panel shall be the decision of the panel.
4. 4Section 14(2)(a) of the Regulation
5. 5Memorial Hospital of Carbon County Rawlings, Wyoming, U.S.A. Emergency Room Report dated April 28, 2018.
6. 6Medical Condition Report by Dr. R., dated May 14, 2018.
7. 7Cardiology Report Dated by Dr. Ri., dated May 15, 2018.
8. 8Notice of Suspension of Driver’s Licence dated May 28, 2018.
9. 9Respondent’s medical brief, pages 32-33.
10. 10Respondent’s medical brief at page 21.
11. 11Respondent’s medical brief at page 30.
12. 12Respondent’s medical brief at page 26.
13. 13Respondent’s medical brief at page 33.
14. 14CCMTA Standards 5.3 Principle 3 – Individual assessment at page 20.
15. 15British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868.
16. 16CCMTA Standards at page 21.
17. 17CCMTA Standards at page 21.
18. 18British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), [1993] 3 S.C.R. 868.
19. 19Respondent Medical Brief at page 22, Dr. R. letter dated August 17, 2018.
20. 20CCMTA Standards at page 21.