Date: 2021-11-15
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 licence pursuant to Section 47(1) of the Act
Between
Nityanand Maharaj
Appellant
And
Registrar of Motor Vehicles
Respondent
DECISION AND ORDER
Panel: C. Petrou, M.D., Member
K. Livingstone, Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Sanjay Kapur, agent
Date of hearing by teleconference
October 8, 2021
REASONS FOR DECISION AND ORDER:
A. Overview
The appellant appeals the decision of the Registrar of Motor Vehicles (the Registrar) to suspend his licence on medical grounds, pursuant to s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. (the “HTA”).
The decision to suspend the appellant’s licence was made by the Registrar following the receipt of a medical condition report (MCR), dated July 22, 2021, from a cardiologist who had treated the appellant in hospital. In a letter dated July 26, 2021, the Registrar informed the appellant that his driver’s licence was being suspended on medical grounds.
A teleconference hearing was held on October 8, 2021.
On November 2, 2021, we issued a decision setting aside the Registrar’s decision to suspend the appellant’s licence, with reasons to follow. These are those reasons.
B. Issue
- The issue in this appeal is whether the appellant suffers from a medical condition and if so, whether it is likely to significantly interfere with his ability to drive a motor vehicle safely
C. Law
The 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 (g) states a licence may be suspended for “any other sufficient reason not referred to in clause (d), (e) or (f).”
One sufficient reason to suspend a driver’s licence under s. 47(1)(g) of the HTA is found in ss.14(1)(a) of O. Reg. 340/94 (the “Regulation”) under the HTA, which states:
i. An applicant for or a holder of a driver’s licence must not….
(a) suffer from a physical, nervous, mental or emotional condition to an extent likely to significantly interfere with his ability to drive a motor vehicle safely.
Section 14(2)(a) of the Regulation allows the Minister of Transportation (MTO) 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 it is not bound by them.
The Registrar has the burden of establishing the ground(s) for suspending the licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, either confirm, modify or set aside the decision or order of the Registrar.
E. Evidence and Analysis
i) Does the Appellant Suffer from a Medical Condition?
The Registrar’s agent filed the documentary history of the appellant’s medical suspension, including the MCR, a discharge report at the time of his release from hospital on July 21, 2021 and a cardiovascular assessment completed on August 22, 2021. The reports formed the basis for the Registrar’s position that the appellant’s licence should remain suspended.
The reports set out the circumstances that brought the appellant to the hospital on July 17, 2021. The appellant is 62 years old with a chronic heart condition identified as follows:
a) Ventricular tachycardia (VT)
b) Non ischemic cardiomyopathy with severe left ventricle dysfunction
c) Hypertension
d) Recurrent VT with multiple cardioversions and multiple ablations in the past
e) CRT-D (cardiac resynchronization therapy pacemaker with inclusion of a built-in defibrillator) implanted in 2012 and replaced in 2017. ATP (anti-tachycardia pacing) threshold decreased to 130 bpm (beats per minute) in February 2021
f) Congestive heart failure
g) Recent July 2021 diagnosis of RCA (right coronary artery) occlusion of 99% requiring PCI (percutaneous coronary intervention) and stent replacement.
- The appellant did not take issue with the diagnoses. He acknowledged he has been under the care of a cardiologist for several years; however, he has been relatively stable in the past several years until his most recent event, which required his hospitalization. He is followed closely by a group of cardiologist specialists at the University of Toronto General Hospital and Toronto Western Hospital as well as his community hospital.
ii) Is the medical condition likely to significantly interfere with his ability to safely drive a motor vehicle?
- During the night of July 17, 2021, the appellant was awakened by a shock from his implanted defibrillator. The appellant said he knew what was happening, was not overly concerned and was able to go back to sleep. He said he did not lose consciousness. In the morning he took himself to the Trillium hospital where he was admitted. He was discharged on July 21, 2021. In the discharge notes, the cardiologist stated:
He recently noted episodic chest burning to his cardiologist and was referred for myocardial prefusion imaging as an outpatient. He was told the test was suggestive of coronary artery disease and he was going to be referred for coronary angiography. During this time, he presented to hospital with an ICD discharge. Interrogation revealed 4 ventricular tachycardia episodes, 3 of which were terminated with anti-tachycardia pacing and 1 was terminated with ICD shock. Given the concern for coronary artery disease and the pending coronary angiography, he was admitted for coronary angiogram to reassess possible ischemic etiology. Troponins, however, were negative.
Coronary angiogram demonstrated a high-grade stenosis in the proximal RCA. PCI was performed with good result. He was admitted to the cardiac intensive care unit post procedure for monitoring and remained stable throughout his hospital course.
He was discharged in stable condition.
Given the overall clinical background, the episode of ventricular tachycardia was discussed with the electrophysiology team. It was recommended that he abstain from driving for 6 months, pending further evaluation with his outpatient cardiology team.
The notes from the appellant’s admission to hospital did not indicate an impaired level of consciousness at any point.
Following the suspension of his licence, the appellant attended at his own cardiologist on August 22, 2021, for a cardiovascular assessment. The assessment noted that the appellant was presently stable, indicating the appellant’s tachyarrhythmias had been adequately controlled for over 4 weeks.
Importantly, the assessment noted that the last time there had been an impaired level of consciousness had been greater that 12 months ago. The appellant was said to be adhering to the recommended treatment regimen. Additionally, the annual risk of sudden incapacitation was felt to be less than 1%. The assessment also indicated that the appellant’s current medication regime and the potential side effects would not impair the appellant’s ability to safely operate a motor vehicle.
The appellant testified he has remained stable since his discharge from hospital with close follow up from his cardiologists. There have not been any more heart pacing or shocks delivered by his pacemaker/defibrillator.
We found the appellant to be keenly aware of his medical condition and respectful of the limitations it places on him. He impressed as a very responsible individual, as is seen in his evidence that he emailed his doctors about the shock episode at 1:30 am before going back to sleep.
The Registrar submitted the appellant’s medical condition is presently severe enough that he should not be allowed to drive until at least six months have passed without further needed medical intervention such as shocks or defibrillation.
However, the Registrar was somewhat inconsistent in its position on the issue.
Initially, the Registrar asked us to apply the CCMTA standard 3.6.12 for non-commercial drivers for sustained ventricular tachycardia (VT) and left ventricular ejection fraction (LVEF) of less that 35% with no associated level of consciousness. Applying this standard, the recommendation is that drivers be eligible for a licence if it has been more than 3 months since their last episode of sustained VT. However, it was not confirmed in the medical notes that the appellant had a sustained VT.
In the absence of evidence of a sustained VT, CCMTA standard 3.6.16 is applicable. Where there is a non-sustained VT, this standard does not place any limits or conditions on a driver’s eligibility for a licence.
The Registrar also asked us to apply CCMTA standard 3.6.29, which addresses implantable cardioverter defibrillator (ICD) therapy (shock or ATP) associated with an impaired level of consciousness or that the therapy delivered by the device was disabling. This standard requires a minimum of 6 months or more since the event before the driver is entitled to reinstatement of their licence.
When the Registrar’s agent was asked about the applicability of standard 3.6.29 given the absence of evidence of an impaired level of consciousness in this case, the agent asked for opportunity to consult with the Registrar’s medical advisors. The hearing adjourned briefly. When we reconvened, the agent advised that the Registrar was placing reliance on “internal policy wording” that was not available to us or defined in standard 3.6.29. We found this position to be of little assistance.
We have carefully reviewed the medical reports and assessment provided, together with the CCMTA standards referred to us by the Registrar. A review of that evidence leads us to conclude there is an absence of evidence which would require the suspension of the appellant’s licence for a 6-month period. We find the Registrar has not provided evidence of a sustained VT or an impaired level of consciousness as outlined in the CCMTA standards. Rather the evidence lends itself to conclude the standard to be applied is 3.6.16, which entails no loss of licence.
We are not satisfied that the appellant’s medical condition will significantly interfere with his ability to operate a motor vehicle safely.
F. Order
- For the reasons set out above, pursuant to subsection 50(2) of the Highway Traffic Act, we set aside the Registrar’s decision to suspend the appellant’s driver’s licence.
LICENCE APPEAL TRIBUBAL
C. Petrou M.D.
K Livingstone
Released November 15, 2021