D.B. v. Registrar of Motor Vehicles, 2019 CanLII 32296

Licence Appeal Tribunal

Date: 2019-03-28

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:

D.B.

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION AND ORDER

Panel: Katie Awad, M.D., Member Avril A. Farlam, Vice-Chair

Appearances: For the Appellant: D.B., Self-represented For the Respondent: Kyle Biel, Agent

Heard by teleconference: March 6, 2019

REASONS FOR DECISION AND ORDER

Overview

1The appellant appeals the September 1, 2018 suspension of his driver’s licence by the Registrar of Motor Vehicles (the “Registrar”). Pursuant to s. 203(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), all medical practitioners are required to report any person 16 years of age or older who is suffering from a condition that may make it dangerous for the person to drive. The Registrar suspended the appellant’s driver’s licence on September 1, 2018, under s. 47(1) of the HTA due to the appellant’s heart disease with pre-syncope/syncope/arrhythmia.

ISSUE

2The issue in this appeal is whether the appellant has a medical condition, specifically heart disease with pre-syncope/syncope/arrhythmia, likely to significantly interfere with his ability to drive a motor vehicle safely. In order to answer that question, we will address the following issues:

(a) Does the appellant have heart disease with pre-syncope/syncope/ arrhythmia?

(b) Is the appellant’s medical condition, specifically heart disease with pre-syncope/syncope/arrhythmia, if any, likely to significantly interfere with his ability to drive safely?

CONCLUSION

3For the reasons that follow, we find that the appellant suffers from a medical condition, specifically heart disease with pre-syncope/syncope/arrhythmia that is likely to significantly interfere with his ability to drive safely. Accordingly, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

LAW

4The Registrar has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence for any of the grounds listed in paragraphs (d), (e), (f) or (g) of that section. Paragraph (d), (e) and (f) are not applicable to this appeal as they relate to misconduct, convictions and commercial motor vehicles respectively. Paragraph (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

5One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is that the driver suffers from a medical condition including addiction likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA 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;

6Section 14(2)(a) of the Regulation allows the Minister of Transportation (“Minister”) to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (“CCMTA Standards”) when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

7Under 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.

8The 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.

EVIDENCE AND ANALYSIS

(a) Does the appellant have heart disease with pre-syncope/syncope/ arrhythmia?

9As set out below, we find that the appellant has heart disease with pre-syncope/syncope/arrhythmia and that this medical condition, is likely to significantly interfere with his ability to drive safely. Based on the appellant’s medical condition, we confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

10The Registrar filed a medical condition report from appellant’s family physician Dr. T. faxed August 20, 2018 which diagnosed appellant with heart disease with pre-syncope/syncope/arrhythmia and noted “brief event while driving. Possibly ICD triggered and he is being seen by his cardiac electrophysiologist…NO driving until he is given clearance to drive from his cardiac specialist.” The Registrar also filed a medical condition report dated August 23, 2018 from Dr. H., the appellant’s cardiologist, which diagnosed the appellant with heart disease with pre-syncope/syncope/arrhythmia and noted “cardiac arrest - defibrillator shock/syncope on August 17, 2018”. The Registrar filed the appellant’s hospital discharge summary dated August 23, 2018 which reports “ventricular fibrillation, ICD shock and syncope while driving a car” and reports that the appellant was driving his motor vehicle when he experienced full body shaking and that the “…device acted appropriately…”

11The appellant filed a letter from Dr. T. dated October 18, 2018 which reports that the appellant had a cardiac arrest in 2001, and has had a bypass since that time. Further, he is being monitored by an arrhythmia clinic. Dr. T. further states that the syncopal event on August 17, 2018 was the appellant’s “…first and last event…” for this particular issue. The appellant also filed records from a medical clinic as a result of a remote consultation which confirm the implant date was November 14, 2017 and show the ICD functioning has been reviewed. Appellant also filed records showing the appellant’s ICD is being monitored by the arrhythmia clinic.

12The appellant testified that in August, 2018 he was driving his motor vehicle when he had a heart episode. He said that his wife had to intervene and was able to take control of the motor vehicle and put it in the ditch. After his heart episode he got out of the truck, guided his wife out of the ditch and went to the hospital because his wife insisted. At the hospital he was treated and said his medications were changed.

13The appellant testified that he received another shock on December 13, 2018 while shopping in a store. He does not think he had a warning. He said he felt poorly for two to three minutes, leaned against the cooler and sat down. EMS had been called but he refused to go to the hospital at that time because he thought there was no point because his cardiologist would get the report electronically. Starting the next day he received follow up treatment from his doctor with input from his son who is a physician. His medications were changed to include a medication recommended by his son. Since December, 2018 the appellant testified that he never really had an incident – just lost beats from time to time. He believes his doctors misdiagnosed him in the hospital and they were going to put in a second wire and then decided his condition could be managed by drugs.

14The appellant testified that he knows he has heart disease but says he is not incapacitated by it. He travels, runs a business employing up to 100 people, is physically active and considers himself reasonably fit. He said that his doctors have not put any restrictions on the type of physical activity he can do and he still runs and swims. The appellant said he is able to drive and it is inconvenient to not be able to drive.

15Based on the totality of the evidence including the appellant’s admission that he has heart disease and the 2018 diagnosis from both the appellant’s family physician and cardiologist we find the appellant does have a medical condition, namely heart disease with pre-syncope/syncope/arrhythmia.

(b) Is the appellant’s medical condition, specifically heart disease with pre-syncope/syncope/arrhythmia, likely to significantly interfere with his ability to drive safely?

16The appellant testified that it is inconvenient for him not to be able to drive. The appellant’s position is that he is able to safely drive and the suspension of his licence should be set aside.

17The Registrar submits that the appellant’s heart disease with pre-syncope/ syncope/arrhythmia is severe enough that he should not be permitted to drive at this time and that the appellant presents a safety risk at this time. The Registrar relies on the guidelines contained in the CCMTA Medical Standards for Drivers (the “Standards”) with respect to cardiovascular disease and disorders (chapter 3) and specifically 3.6.8 and 3.6.29.

18Guideline 3.6.8 states that non-commercial drivers with ventricular fibrillation with no reversible cause are eligible for a licence if it has been 6 months or more since their last episode of ventricular fibrillation.

19Guideline 3.6.29 states that non-commercial drivers where implantable cardioverter defibrillator (ICD) therapy (shock or ATP) has been delivered and there is an associated impaired level of consciousness, or the therapy delivered by the device was disabling, are eligible for licence if:

• it has been 6 months or more since the event, and

• the standard for cardiovascular condition are met

20The appellant would not be eligible for a licence at this time based on these standards. The appellant’s ICD delivered therapy on August 17, 2018 according to the reports of his family physician and cardiologist and according to the appellant, again on December 13, 2018. Six months has not yet passed since the last ICD event. It has not been six months or more since the last episode. We also note that the two episodes were not six months apart. During the first episode the appellant was driving and his wife had to take control of the motor vehicle and put it in the ditch as the appellant was too disabled to control the motor vehicle. During the second episode the appellant was not driving because his licence was suspended, but he was affected enough that he had to lean against a cooler and sit down. Had he been driving a motor vehicle at the time it is likely the episode would have interfered with his ability to control the motor vehicle.

21The letter from Dr. T. dated October 18, 2018 reporting that the syncopal event was on August 17, 2018 and was the appellant’s first and last event for this particular issue is not relevant to our analysis because it is predates and therefore does not refer to the December 13, 2018 episode. None of the appellant’s doctors have given any indication that the appellant should be driving a motor vehicle at this time. The appellant’s family physician Dr. T. in the report dated August 20, 2018 states”…NO driving until he is given clearance to drive from his cardiac specialist”. The appellant’s cardiologist Dr. H. in the report dated August 23, 2018 notes “…cardiac arrest – defibrillator shock/syncope on August 17, 2018…” and does not contain a recommendation that the appellant can safely drive a motor vehicle. The appellant’s hospital discharge summary dated August 23, 2018 notes that the appellant was driving his motor vehicle when he experienced full body shaking and that the “…device acted appropriately…”Although the appellant testified that his doctors have adjusted his medication since the August 2018 and the December 2018 episodes based on input from his physician son, there are no reports from any of the appellant’s physicians recommending that he can safely drive a motor vehicle.

22Based on the medical reports of Dr. T. dated August 20, 2018, the report of Dr. H., appellant’s cardiologist dated August 23, 2018, the discharge summary from the hospital dated August 23, 2018 and the testimony of the appellant about the December 2018 episode and the treatment he has received since December 2018, we find that the appellant’s heart disease with pre-syncope/syncope/arrhythmia is likely to significantly interfere with his ability to drive safely at this time.

ORDER

For 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 confirmed.