F.A. v. Minister of Transportation, 2019 CanLII 37543

F.A. v. Minister of Transportation

Date: 2019-04-11

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 suspend a driver’s licence under subsection 47(1) of the Act

Between:

F.A. Appellant

and

Minister of Transportation Respondent

REASONS FOR DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: Robert Riddell, appellant’s representative For the Respondent: Sanjay Kapur, agent

Heard by Teleconference on: April 2, 2019

OVERVIEW

1The appellant appeals the change in class of his driver’s licence under s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

2A periodic Medical Report form, dated October 2, 2018, was submitted to the Minister of Transportation (the “Minister”) by the appellant’s family doctor, Dr. L. This form indicated that the appellant suffers from a cardiovascular (“CVS”) condition, namely atrial fibrillation (“AF”).

3Following the receipt of a completed Commercial Driver Cardiovascular Assessment form (“CDC Assessment form”), and under s. 32(5) of the Act, the Minister changed the appellant’s class of driver’s licence from a commercial licence to a class “G” licence, effective November 7, 2018.

4The appellant now appeals the Minister’s decision to change the class of his driver’s licence on the basis of favourable and supportive reports from both his cardiologist, Dr. B., and Dr. L.

5For the reasons set out below, I find that the appellant does suffer from a CVS condition. However, I find that on a balance of probabilities the appellant’s CVS condition is not likely to significantly interfere with his ability to drive a commercial vehicle safely.

6Accordingly, I set aside the Minister’s decision to change the class of the appellant’s driver’s licence.

ISSUES

7The issue in this appeal is whether the appellant suffers from a medical condition, namely a CVS condition, which is likely to significantly interfere with his ability to drive a vehicle of the applicable class safely.

8To answer that question, I will address the following issues:

a. Does the appellant suffer from a CVS condition?

b. Is the appellant’s CVS condition, if any, likely to significantly interfere with his ability to drive a vehicle of the applicable class safely?

LAW

9The Minister has the power under s. 32(5)(b)(i) of the Act to change the class of a person’s driver’s licence in accordance with examination results and other prescribed requirements.

10Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the Act 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.

11According to s. 14(2)(a) of the Regulation, if the Minister is determining whether the requirements of s. 14(1) are met, the Minister may take into consideration the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “CCMTA Standards”). The Tribunal may also take the CCMTA Standards into consideration, although they are not binding requirements.

12The Minister has the burden of establishing the grounds for downgrading the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the Minister’s decision or order.

EVIDENCE AND ANALYSIS

a. Does the appellant suffer from a CVS condition?

13I find that the evidence presented establishes that the appellant suffers from a CVS condition.

14The appellant underwent outpatient medical diagnostic testing in late 2017 for a rapid heart rate. The results from a Holter monitor (an ambulatory device for prolonged monitoring of heart activity) performed in mid-December 2017 and submitted as evidence, were consistent with AF, an irregular heart rhythm consisting of tachycardia (a rapid heart rate).

15Further investigations done by Dr. B., a cardiologist at a hospital-based outpatient Heart Function Clinic, and submitted as evidence, revealed that the appellant suffers from severe cardiomyopathy (a disease of the heart muscle), likely due to his previous tachycardia secondary to rapid AF.

16The appellant’s AF was successfully treated with oral drug therapy as an outpatient. His heart rate has remained in normal rhythm and at a normal rate since that time.

17Under the Statutory Powers Procedure Act, (“SPPA”) R.S.O. 1990, c. S.22, s. 16, a tribunal may, in making its decision in any proceeding,

a. take notice of facts that may be judicially noticed; and

b. take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge.

18As a licenced and duly qualified physician in the province of Ontario with a general practice licence, I have, as per SPPA s. 16(b), the qualifications, and knowledge that a left ventricular ejection fraction (“LV EF”), or the ability of the heart to pump oxygenated blood to the rest of the body, of 55% or higher is considered normal. Although the appellant’s LV EF at diagnosis was not submitted as evidence, his LV EF as per echocardiogram was 43% in March 2018 and 48.7% in September 2018. The appellant’s most recent echocardiogram also comments, amongst other things that the appellant’s LV is normal in size and has mildly reduced systolic function, and his right ventricle is borderline dilated and has mildly reduced systolic function. Based on my qualifications, all of these comments imply that on his current oral medical regime and by cardiac testing, the appellant has a mildly reduced ability to pump blood out of his heart, or mild/minimal heart failure (“HF”).

19The CCMTA Standards refer to the New York Heart Association functional classification system (the “NYHA classification system”) as providing for the simple assessment of the degree of a person’s HF. As per the evidence submitted, both Drs. B. and L. consider the appellant to be currently functional Class I under the NYHA classification system, indicating that as per the CDC Assessment form, the appellant clinically has no limitations of physical activities and no symptoms during daily/activities – i.e. that he clinically has no symptoms of HF.

20According to Drs. B. and L., and supported by the many cardiac tests in evidence, the appellant does not suffer from coronary artery disease or heart valve disease, and has never had loss of consciousness because of his heart problems. The appellant is known to have controlled high blood pressure.

21Taking all the evidence into consideration, I find that the appellant suffers from a CVS condition, namely cardiomyopathy. I find that clinically the appellant suffers no symptoms of HF, but by cardiac testing he suffers from mild/minimal HF.

b. Is the appellant’s CVS condition, if any, likely to significantly interfere with his ability to drive a vehicle of the appropriate class safely?

22The Minister has the burden of establishing that the appellant’s CVS condition is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely. I find that the Minister has not met its burden. I find that the appellant has not been prescribed, and is not currently receiving, inotropes within the meaning of the CCMTA Standards. I find that the appellant is eligible for a commercial class licence under the CCMTA Standards, and I further find that, based upon the evidence presented, I am not satisfied on a balance of probabilities that the appellant’s CVS condition is likely to significantly interfere with his ability to drive a commercial vehicle safely.

23The Minister’s position about the risk posed by the appellant’s condition appears to be premised completely on the basis that the appellant is ineligible for a licence under the CCMTA Standards. The Minister’s position that the appellant is ineligible for a licence under the CCMTA Standards appears to be based solely from Dr. L.’s answers on the appellant’s CDC Assessment form.

24The Minister’s agent referred specifically to Section D – Other Cardiac Conditions of the completed CDC Assessment form, as the subject of the Minister’s concern. In Section D, under question 1 – “Does your patient have one of the following conditions”, Dr. L. answered affirmatively to the first two boxes, specifically:

-congestive heart failure. If checked (positive), has the patient ever required inotropic support in hospital for their CHF? Yes.

-dilated or ischemic cardiomyopathy. If checked (positive), has the patient ever required inotropic support in hospital for their CHF? Yes.

25As I will explain, I believe Dr. L. was mistaken when he gave these answers.

26At the hearing, the appellant testified that in late 2017, he was sent to the emergency room (“ER”) at a hospital after Dr. L. noted his rapid heart rate. However, the appellant stated that he was released from the ER after a few hours, was not admitted as an inpatient, and went home.

27The appellant testified that with respect to his CVS condition, he was only prescribed oral medications by Dr. B., and that he saw Dr. B. only in the outpatient clinic within the hospital.

28As per my knowledge and qualifications, inotropes are medicines that are used to strengthen and improve the force of the heart’s muscular contractions, and thus improve the output of the heart and oxygenation to the rest of the body. Inotropic support refers to the use of inotropes to help support critically ill patients, often in an intensive care unit, who need their circulation stabilized, their cardiac output improved, and the oxygen supply to their body optimized. Typical inotropes used as inotropic supports in these circumstances include: adrenaline, noradrenaline, and dobutamine.

29Based on my knowledge and qualifications, prescribing and/or administering inotropes, such as those mentioned in paragraph 28, in the ER setting of any patient with rapid AF as described in paragraph 26, would potentially be dangerous.

30Furthermore, there is no indication in the written evidence submitted that the appellant was ever prescribed or received the inotropes mentioned in paragraph 28.

31As per the appellant’s testimony, he has never been admitted to hospital for his CVS condition.

32As of April 2, 2019, the appellant’s current medications are: metoprolol twice daily (a β-blocker or medication that slows the heart and can block the impulses that cause arrhythmias), atorvastatin (a lipid-lowering drug), rivaroxaban (a blood thinner), and perindopril (an angiotensin converting enzyme inhibitor, frequently used to treat high blood pressure). Notes from both Drs. B. and L. indicate that the appellant stopped taking amiodarone (an antiarrhythmic) sometime in October 2018.

33In addition, the appellant is not aware of having received or taken any other cardiac medications since the diagnosis of his CVS condition.

34As per my knowledge and qualifications, atorvastatin and rivaroxaban have no effect on the contraction of the heart. Thus, as per paragraph 28, they are not inotropes. Furthermore, the medications metoprolol, perindopril and amiodarone slow the heart rate down, and/or reduce or weaken the contractions of the heart. Thus, these latter three medications in fact have actions opposite to inotropes, and therefore are not inotropes within the meaning of the CCMTA Standards. Moreover, when asked whether he was relying upon the appellant’s use of amiodarone in support of the Minister’s position, the Minister’s agent replied that he was not.

35Thus, after careful consideration of the evidence before me, it is my opinion that the appellant has never been prescribed or received an inotrope for his CVS condition. Furthermore, it is my opinion that the appellant is not currently being prescribed or receiving an inotrope for his CVS condition.

36As noted above, the Minister’s position was predicated heavily on Dr. L.’s answers to the questions on the appellant’s CDC Assessment form. With respect to section D, question 1 of the completed CDC Assessment form, and after consideration of the evidence, it is my opinion that Dr. L. misunderstood or misread these specific questions when he answered affirmatively to the questions regarding whether the appellant ever required the use of inotropic support in hospital for his CVS conditions. After careful consideration of the evidence, and for the reasons discussed above, it is my opinion that the appellant has never required the use of inotropic support in hospital for either cardiomyopathy or HF.

37The Minister’s agent referred to Chapter 3 of the CCMTA Standards, “Cardiovascular disease and disorders”, and specifically to 3.6.42 and 3.6.44.

38In 3.6.42 (CHF – Commercial drivers), commercial drivers are eligible for a licence if:

• they are assessed as NYHA Class I or II

• they have a LV EF of ≥ 35%

• they are not receiving intermittent inotropes

39In 3.6.44 (LV dysfunction or cardiomyopathy – Commercial drivers), commercial drivers are eligible for a licence if:

• they are assessed as NYHA Class I or II

• they have a LV EF of ≥ 35%

• they are not receiving intermittent inotropes

• they are not using a LV assist device

40In 3.6.41 (CHF – Non-commercial drivers), non-commercial drivers are eligible for a licence if:

• they are assessed as NYHA Class I, II, or III

• they have a LV EF of ≥ 35%

• they are not receiving intermittent inotropes

41When specifically questioned about how the appellant was eligible for a non-commercial (G-class) licence as per the eligibility requirements of 3.6.41, and based on Dr. L.’s response to Section D, question 1 of the CDC Assessment form, the Minister’s agent did not have an answer.

42Having already established that none of the appellant’s current or past prescribed cardiac medications are inotropes, it is therefore my opinion based on all the evidence before me, that the appellant has never received and is not currently receiving intermittent inotropes within the meaning of the CCMTA Standards.

43I have found that the primary basis for the Minister’s position, namely Dr. L.’s answers on the CDC Assessment form, was erroneous. I have further found that the evidence does not establish that any of the appellant’s medications constitute inotropes within the meaning of the CCMTA Standards.

44I note that I am not bound by the recommendations contained in the CCMTA Standards in making my decision. However, as per the written evidence submitted, the appellant is currently classified by his treating physicians as functional Class I under the NYHA classification system, has an LV EF ≥35%, and is not using a LV assist device.

45Furthermore, having previously determined that the appellant has not and is not currently receiving intermittent inotropes, it is my opinion that the appellant satisfies all the conditions in the CCMTA Standards 3.6.41-3.6.44 regarding heart failure and cardiomyopathy for both non-commercial and commercial drivers.

46In addition, recent letters from Drs. B. and L. to the Minister submitted as evidence, support the reinstatement of the appellant’s commercial licence and the latter even questions how the appellant’s current CVS status does not meet the CCMTA Standards.

47After a careful review of all the evidence, it is my opinion that although the appellant suffers from a CVS condition, namely cardiomyopathy with mild/minimal HF, that on a balance of probabilities his CVS condition is not likely to significantly interfere with his ability to drive a commercial vehicle safely.

ORDER

48For the reasons set out above, pursuant to subsection 50(2) of the Act, I set aside the Minister’s decision to change the class of the appellant’s driver’s licence.