Licence Appeal Tribunal

Safety, Licensing Appeals and Standards Tribunals Ontario

Tribunal d’appel en matière de permis Tribunaux de la sécurité, des appels en matière de permis et des normes Ontario

Date: 2020-02-19 Tribunal File Number: 12380/MED

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:

Danny Wallis Appellant

and

Registrar of Motor Vehicles Respondent

DECISION AND ORDER

Panel: Dimitri Louvish, M.D., Member Asad Moten, Member

Appearances: For the Appellant: Self-represented For the Respondent: Sonia De Santis, Agent

Heard by teleconference: December 6, 2019

REASONS FOR DECISION AND ORDER

A. Overview:

1The appellant appeals the April 11, 2019, suspension of his driver’s licence by the Registrar of Motor Vehicles (the “Registrar”). The suspension followed an unsolicited Medical Condition Report dated March 30, 2019, from the appellant’s physician indicating that the appellant suffered from a sleep disorder.

2The Registrar, after receiving the report, concluded that the appellant’s medical condition affects his ability to drive safely. The Registrar requires the appellant to satisfy certain criteria before the appellant can get his licence back.

3The appellant argues that the physician is being dishonest, and is seeking retribution because the appellant would not buy a sleep apnea machine from him. He also states that he has difficulty wearing the sleep apnea mask and has not found an adequate solution, but that he has an excellent driving record and does not suffer from daytime sleepiness. Therefore, in the appellant’s opinion, there is no risk to his ability to drive safely.

B. ISSUE:

4The issue in this appeal is whether the appellant has a medical condition, specifically a sleep disorder, 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 suffer from a sleep disorder?

(b) Is the appellant’s sleep disorder, if any, likely to significantly interfere with his ability to drive safely?

C. CONCLUSION:

5For the reasons that follow, we find that the appellant suffers from a medical condition, specifically a sleep disorder, 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.

D. LAW:

6The Registrar has the power under s. 47(1) of the Highway Traffic Act (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 (g) states that a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”

7One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is if the driver suffers from a medical condition 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;

8Section 14(2)(a) of the Regulation allows the Minister of Transportation 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.

9Under 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.

10The 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.

E. EVIDENCE AND ANALYSIS:

(a) Does the appellant suffer from cognitive impairment?

11We find that the appellant has cognitive impairment based on the medical evidence filed by the Registrar.

12The appellant has been prescribed a CPAP machine for sleep apnea for 15 years. However, medical records indicate, and the appellant confirms, that the CPAP machine is uncomfortable and prevents the appellant from falling asleep. He states that he has lost more than 50 lbs since he was first prescribed the machine and has not had a sleep attack in 12 years. As a result, the appellant has not consistently used the CPAP machine since 2007.

13Nonetheless, the appellant’s sleep specialist reported in March 2019 that as recently as 2017 the appellant was confirmed via sleep study to have severe obstructive sleep apnea. According to the sleep specialist, the appellant has a score of 79 on the apnea-hypopnea index (AHI). An AHI score greater than 20 is considered obstructive sleep apnea.

14On October 2, 2018, the appellant’s sleep specialist wrote to the appellant advising him that unless the appellant begins to comply with sleep apnea treatment, he will be reported to the Ministry of Transportation as having a medical condition that may affect his ability to drive safely. The appellant testified that the sleep specialist was aggressive, and only wants to sell the appellant a CPAP machine.

15Without making any finding with respect to the sleep specialist’s intentions, the fact is that the appellant continues to suffer from sleep apnea. This is supported by the appellant’s family physician, who completed an updated Sleep Disorders and Narcolepsy form on November 18, 2019. The family physician also stated that the appellant is sleeping 9-10 hours a night with minimal disruptions. We note, however, that this information is based on the appellant’s self-reporting, which, given his interest in obtaining his licence, cannot be given the weight that objective measures of his sleep status would be given.

16In sum, there is no question that the appellant was diagnosed with obstructive sleep apnea. He continues to suffer from this disorder, as indicated by a high AHI score in 2017. Further, the evidence suggests that while the CPAP machine has not been comfortable for the appellant, he has not complied with this treatment or obtained any other form of treatment for sleep apnea.

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

17We find that the Registrar has satisfied its onus to demonstrate that the appellant’s medical condition is likely to significantly interfere with his ability to drive safely.

18The appellant is of the position that he has not had an episode of sudden and uncontrollable muscle weakness or paralysis in twelve years, has an excellent driving record, does not have a need to nap during the day, and has never fallen asleep at the wheel. Therefore, according to the appellant, there is no risk to his ability to drive safely.

19The Registrar relies on the guidelines contained in the CCMTA Standards with respect to obstructive sleep apnea for its position that the appellant’s medical condition continues to be unsafe. Guideline 18.6.1 of the Standards states that drivers are eligible for a licence if:

• Has untreated obstructive sleep apnea with an AHI <20, and has no daytime sleepiness or,
• Has obstructive sleep apnea that is treated successfully;
• May not operate any class of vehicle if has experienced a crash associated with falling asleep or reports excessive sleepiness while driving until the sleep disorder has been treated successfully
• The conditions for maintaining a licence are met

20Non-commercial drivers are to be assessed for fitness on a case by case basis, taking into account the treating physician’s specific recommendations.

21In this case, the evidence indicates that the appellant’s obstructive sleep apnea (AHI >20) has not been successfully treated. CPAP machines, while not feasible for the appellant, are not the only option. An oral device has been recommended, and surgery has been explored. However, the appellant has not pursued either of these options or any others.

22On the other hand, while the appellant claims to have lost considerable weight, this weight loss was reported as early as 2007. Yet as recently as 2017 the appellant continued to have an AHI score greater than 20. As such, the appellant’s weight loss has not successfully addressed his sleep apnea.

23The danger of obstructive sleep apnea for drivers is obvious. According to the CCMTA Standards, studies show that individuals with obstructive sleep apnea have a 2 to 4 times greater risk for a vehicle collision, and that such collisions result in more severe injuries.

24Based on the evidence before us, the Tribunal concludes that the appellant’s obstructive sleep apnea is likely to significantly interfere with his ability to drive safely.

25We appreciate that the loss of a driver’s licence can have significant consequences for the individual affected. While we understand the appellant’s concerns about the practical challenges that result from a licence suspension, we must apply the provisions of the HTA and regulations, keeping in mind the objective of ensuring public road safety.

F. 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.