G.B. v. Minister of Transportation, 2019 CanLII 76849

Date: 2019-06-20

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 s. 32(5)(b)(i) of the Act

Between:

G.B.

Appellant

-and-

Minister of Transportation

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: G.B., Self-represented

For the Respondent: Kiel Biel, Agent

Place and Date of Hearing: By Teleconference June 12, 2019

A. 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 Medical Report (“MR”) form, dated November 14, 2018, was submitted to the Ministry of Transportation (the “Minister”) by the appellant’s family doctor, Dr. M. This form indicated that the appellant suffers from cardiovascular (“CVS”), respiratory, and musculoskeletal disease.

3By letter dated December 12, 2018, the Minister requested that the appellant completed a Commercial Driver Cardiovascular Assessment form (“CDCA” form).

4Following a review of the completed CDCA form dated January 8, 2019, which stated that the appellant’s CVS disease was stable and that his functional limitations were due to his respiratory disease (chronic obstructive pulmonary disease, or “COPD”), the Minister requested further information about the appellant’s COPD. Specifically the Minister requested confirmation of the level/degree of impairment regarding his COPD (i.e. mild, moderate, severe), and whether supplemental oxygen is required continuously for driving.

5By letter date February 19, 2019, Dr. M. indicated to the Minister that the appellant had severe COPD diagnosed by respirologist Dr. S., and that he used supplemental oxygen only on exertion.

6By letter dated March 12, 2019 the Minister indicated that the appellant was approved for a class “G” licence, but was no longer eligible for a commercial licence because of his heart condition and severe COPD. In addition, the appellant was required to pass a three-part examination (written, vision, and road test) for his class “G” licence, which he did successfully.

7The appellant appeals the Minister’s decision to downgrade his driver’s licence on the basis that: he never requires supplemental oxygen to drive; he requires oxygen mostly for activities which involve fumes, being bent over, wind, going from cold to warm air or extreme physical work; and he was classified as having severe COPD by Dr. S. in order to get financial coverage for his oxygen.

8For the reasons set out below, while I find that the appellant does suffer from a CVS condition, I also find on the balance of probabilities that this CVS condition is not likely to significantly interfere with his ability to drive a commercial vehicle safely.

9In addition, for the reasons set out below, while I find that the appellant does suffer from COPD, I also find on the balance of probabilities that currently his COPD is not likely to significantly interfere with his ability to drive a commercial vehicle safely.

10Accordingly, I set aside the Minister’s decision to change the class of the appellant’s driver’s licence.

B. ISSUES

11The issues in this appeal are as follows:

a. Does the appellant suffer from a CVS condition?

b. Does the appellant suffer from COPD?

c. Is the appellant’s CVS condition, if any, likely to significantly interfere with his ability to drive a commercial D-class vehicle safely?

d. Is the appellant’s COPD, if any, likely to significantly interfere with his ability to drive a commercial D-class vehicle safely?

C. LAW

12The 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.

13Subsection 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.

14According to s. 14(2)(a) of the Regulation, in 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.

15The 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.

D. EVIDENCE AND ANALYSIS

a. Does the appellant suffer from a CVS condition?

16I find that the evidence presented establishes that the appellant suffers from a CVS condition, namely stable coronary artery disease (“CAD”) with no angina.

17The January 8, 2019 CDCA form indicates the following: the appellant has stable CAD with no angina; suffered one heart attack and underwent cardiac surgery or percutaneous coronary heart intervention more than 12 months ago; has no valve disease, arrhythmia, or hypertension; has a left ventricular ejection fraction (“LVEF”) >50%; and is New York Heart Association (“NYHA”) functional classification III (marked limitation of physical activity; comfortable at rest). The CDCA form also stated that the appellant’s functional limitations are due to his COPD.

18In addition, the appellant requires a number of prescription medications for his CAD disease.

19The appellant does not contest any of these facts.

20Taking the evidence into consideration, I find that the appellant has the CVS condition of stable CAD with no angina. I also accept, as per Dr. M.’s notes and the appellant’s testimony, that the appellant’s physical limitations are not the result of his CAD, but rather his COPD (to be explained below).

b. Does the appellant suffer from a respiratory condition, namely COPD?

21I find that the evidence presented establishes that the appellant suffers from the respiratory condition COPD. I am aware, as a physician, that a person with COPD often experiences shortness of breath (“SOB”).

22Dr. M. indicates that the appellant has COPD (emphysema) and is followed by the respirologist, Dr. S. The appellant does not contest these facts.

23The appellant testified that he stopped smoking more than 36 years ago. When questioned about what might be the cause of his COPD, the appellant stated that he believes over the years as a farmer, he has been exposed to many chemicals/sprays and to galvanized vapours from welding that may have affected his lungs.

24According to Dr. M.’s reports, Dr. S. classifies the appellant’s COPD as severe.

25According to the appellant and verified by his wife, Dr. S. classified him as having severe COPD in order to have oxygen available, as needed, for no cost.

26The appellant saw Dr. S. on June 4, 2019 in an attempt to clarify the severity of his COPD prior to the hearing. According to the appellant, Dr. S. stated that he could not make another report, as “severe COPD is on file”. The appellant also had a pulmonary function test (“PFT”) performed on June 4, 2019, but unfortunately the PFT results had not been interpreted by the time of the hearing. No previous PFT results were submitted into evidence.

27The appellant testified that certain movements (such as bending over), fumes (e.g. chemicals, oil, welding fumes), going from cold to warm air, wind, and exertion make the SOB from his COPD worse. According to the appellant’s wife, he is able to perform his activities of daily living (e.g. washing, dressing) without SOB, and he gets out of the house without SOB. There are no stairs inside their home, except for those to the basement.

28The appellant uses his supplemental oxygen only as needed (e.g. if he comes back from welding which involves a lot of bending over), and he has never used it while driving. When the appellant recently performed and passed the three-part driving test required by the Minister, he did not use supplemental oxygen.

29The appellant also takes prescription medications for his COPD.

30Taking the evidence into consideration, I find that the appellant suffers from the respiratory condition COPD. I also find that the appellant does not suffer from SOB at rest or with his activities of daily living, but suffers SOB from his COPD particularly from physical exertion, when exposed to fumes, wind, changes in air temperature, and when he bends over.

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

31The 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.

32I find that the Minister has not met its burden with respect to the appellant’s CVS condition.

33The Minister’s letter sent to the appellant on March 12, 2019 states, “As this report indicates you no longer meet the National Medical Standards for a commercial licence due to your heart condition and severe COPD, your commercial licence will be changed to a class “G” licence…Should you wish to regain your commercial licence, you will be required to file a further report from your treating physician or specialist. The report must include the following: confirmation you are assessed as NYHA Class I or II; confirmation of the level/degree of impairment regarding your COPD condition…”

34At the hearing, the respondent did not focus on the appellant’s CVS condition when submitting evidence or questioning the appellant. The respondent’s agent did not refer at any time to Chapter 3 of the CCMTA Standards (Cardiovascular disease and disorders), which was admitted as evidence.

35Although I am not bound by the CCMTA Standards, I note that in 3.6.4 (Asymptomatic CAD or stable angina), all drivers are eligible for a licence provided that there is confirmation from their health care provider that their CAD is asymptomatic or angina is stable.

36Of significance, I also note that this 3.6.4 does not mention the NYHA functional classification system when addressing conditions for maintaining licence, reassessment, information from health care providers, or rationale.

37As per Chapter 3 of the CCMTA Standards, the “NYHA functional classification system provides a simple, clinical measure for assessing the degree of heart failure” (emphasis added).

38Under s. 16 of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (the “SPPA”) a tribunal may, in making its decision in any proceeding,

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

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

39Based on the evidence before me, specifically a left ventricular ejection fraction (“LVEF”) >50%, and based on my qualifications and knowledge as a duly qualified physician in the province of Ontario with a general practice licence, I have the qualifications and knowledge to know that a LVEF >50% indicates that the appellant does not suffer from heart failure.

40Dr. M., the appellant’s primary health care provider for 16 years, states that the appellant has “stable CAD and no angina”.

41Furthermore, based on my qualifications and knowledge I know that “stable CAD and no angina” as per Dr M. is equivalent to “asymptomatic CAD” as per CCMTA terminology.

42Therefore, I find the appellant has submitted evidence that demonstrates that he fulfills all the requirements relied upon by the Minister for eligibility to be licenced for any class of vehicle, as per CCMTA Standard 3.6.4 “Asymptomatic CAD or stable angina”.

43I find that the Minster has not met its burden of establishing that the appellant’s CVS condition, namely stable, asymptomatic CAD with no angina, is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.

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

44The Minister has the burden of establishing that the appellant’s respiratory condition, namely COPD, is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely. The Minister’s position about the risk posed by the appellant’s COPD appears to be premised completely on the basis that the appellant is ineligible for a licence of the applicable class under the CCMTA Standards.

45I find that the Minister has not met its burden.

46In an effort to more completely understand both the CCMTA Standards with respect to respiratory diseases, and therefore the Minister’s rationale for the appellant’s ineligibility to drive a commercial D-class vehicle, the respondent referred to Chapter 16 of the CCMTA Standards, “Respiratory diseases” and specifically to 16.4, 16.5, 16.6.3, 16.6.4, and 16.6.5

47Although I am not bound by the CCMTA Standards, I note that 16.4 refers to the effects of COPD on the functional ability to drive. Specifically 16.4 states that “research indicates that drivers with COPD are at risk of cognitive impairment due to chronic hypoxia (low oxygen)…This CI may affect a driver’s functional ability to drive.” Furthermore, 16.4 mentions that drivers with COPD also may develop general debility resulting in a loss of stamina required to support the functions necessary for driving.

48Dr. M. in her extensive notes regarding the appellant never mentioned CI as an issue, nor has she commented that the appellant has significant debility.

49Furthermore, the appellant recently performed and passed a three-part driving test required by the Minister. Certainly, had CI or significant debility been noted at that time, the appellant would have not passed the three-part driving test.

50As per 16.5 of the CCMTA Standards (Compensation), drivers with COPD may be able to compensate for their functional impairment by using supplemental oxygen.

51As per the appellant’s testimony and Dr. M.’s reports, the appellant does not use/need supplemental oxygen for driving. In addition, the appellant testified that he did not use supplemental oxygen when he took the recent three-part driving test required by the Minister.

52Dr. S. has stated that the appellant has severe COPD. Dr. M.’s notes are based on Dr. S.’s reports.

53The appellant and his wife submit that Dr. S. classified the appellant as having severe COPD in order to get his as needed oxygen financially compensated.

54As per 16.1 of the CCMTA Standards (About respiratory diseases), “the level of general impairment caused by respiratory diseases is commonly described as mild, moderate, or severe as described in the table below”. Nowhere in this table (or in any other section of Chapter 16 of the CCMTA Standards) is there mention of the NYHA functional classification system.

55Although not binding on the Tribunal, I also note that the table in 16.1 of the CCMTA Standards describes the level of impairment of COPD (i.e. mild, moderate or severe) in the context of symptoms, PFT results, and nature of general impairment.

56As previously mentioned, the appellant had a PFT done on June 4, 2019, however the results were not available by the hearing date. No previous PFT results were submitted into evidence.

57For a moderate level of COPD impairment, the CCMTA table states:

Symptoms: SOB when walking for a few minutes or after 100 m walking on level ground

Nature of General Impairment: Progressively lower levels of lung function correlated with diminished ability to meet the daily demands of many jobs

58For a severe level of COPD impairment, the CCMTA table states:

Symptoms: too breathless to leave the house, breathless when dressing. The presence of untreated respiratory failure.

Nature of General Impairment: Unable to meet physical demands of most jobs, including travel to work.

59As per the appellant’s testimony, and verified by the appellant’s wife, the appellant can leave the house, is not SOB when dressing, and is a cash crop farmer.

60Thus, it is my opinion, that when defining the “level of impairment” in the context of the terminology used in the CCMTA Standards, the appellant does not have a severe level of impairment, rather the appellant currently has a moderate level of impairment.

61Having established that: i) the appellant does not require/use supplemental oxygen while driving; and ii) under the terminology used in Chapter 16 of the CCMTA Standards, the appellant currently has a moderate level of impairment due to his COPD, it is my opinion that the Minister should be reflecting on the differences between 16.6.2 (Moderate impairment – non-commercial drivers) and 16.6.5 (Moderate impairment – commercial drivers), not 16.6.3 (severe impairment – non-commercial drivers), 16.6.4 (requiring supplemental oxygen – non-commercial drivers), or 16.6.6 (severe impairment or requiring oxygen – commercial drivers) as stated at the hearing.

62Although not bound by the CCMTA Standards, I note that the major difference between 16.6.2 (Moderate impairment – non-commercial drivers) and 16.6.5 (Moderate impairment – commercial drivers) is that the Minister requires a functional assessment to ensure functional ability for commercial drivers.

63The appellant is a farmer and until recently used his commercial D-class licence to haul hay, do odd jobs, and haul/deliver large quantities of water (1000 gallon tank) for himself, some neighbours, and as back up for the fire department. He does not drive his vehicles long-haul (as per his testimony less than 30 mile round trip), and when he drives his heavy vehicles off his farm, the roads he travels on are mostly gravel, with some paved.

64The appellant recently passed a three-part driving assessment required by the Minister. He did not use supplemental oxygen during this examination. Although not as stringent as a functional driving assessment and not performed in a commercial vehicle, it is my opinion on the balance of probabilities, that the appellant’s recent driving assessment would have shown (should it exist) any significant cognitive impairment or general debility from his COPD that may currently affect his functional ability to drive a commercial D-class vehicle.

65Based on a careful consideration of all the evidence before me, I find that the appellant’s COPD does not currently significantly interfere with his ability to drive a motor vehicle of the applicable class safely.

E. CONCLUSION

66I find that neither the appellant’s CVS condition (asymptomatic, stable CAD with no angina) nor the current status of his respiratory condition (COPD) is likely to significantly interfere with his ability to drive a commercial D-class vehicle safely. Thus, I set aside the Minister’s decision to change the class of the appellant’s driver’s licence.

F. ORDER

67For 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.