Andrzej Bacal v. Minister of Transportation, 2021 CanLII 50786

Date: 2021-06-04

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 pursuant to section 47(1) of that Act – to downgrade a licence

Between:

Andrzej Bacal

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Peter Savage, Member

APPEARANCES:

For the Appellant: Jamie Sanftleben, Paralegal

For the Respondent: Sonia Desantis, Agent

Heard by Teleconference: May 21, 2021

REASONS FOR DECISION AND ORDER

A. OVERVIEW

1This is an appeal from a decision of the respondent, the Minister of Transportation (the “Minister”), to downgrade the appellant’s class AZ commercial driver’s licence. The Minister notified the appellant of the downgrade by letter dated April 7, 2021. The letter stated the reason for the downgrade from AZ to G was the report of a heart condition.

2For the reasons that follow the Tribunal confirms the decision by the Minister to downgrade the appellant’s class AZ driver’s licence.

B. LAW

3The Minister has the power under s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) to suspend or downgrade a licence in accordance with requirements prescribed in the regulations.

4Subsection 14(1)(a) of O. Reg. 340/94 enacted under the HTA requires that a holder of a driver’s licence must not suffer from “any . . . physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely.”

5Section 14(2)(a) of the O. Reg. 340/94 allows the Minister to consider the CCMTA Medical Standards for Drivers when determining whether the requirements of s. 14(1) are met. The CCMTA standards, while persuasive, are not binding on the Minister or on this Tribunal.

6The Minister has the burden of establishing on a balance of probabilities that one or more ground for suspending a driver’s licence has been made out.

7Pursuant to section 50(2) of the HTA, after a hearing the Tribunal may confirm, modify or set aside the decision or order of the respondent.

C. ISSUE.

8The legal issue for the Tribunal to determine is whether the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive safely pursuant to section 14 (1)(a) of O. Reg. 340/94.

9To answer that issue, I will address the following questions:

a. Does the appellant suffer from a medical condition?

b. If the appellant suffers from a medical condition, is it likely to significantly interfere with his ability to drive a vehicle safely?

D. THE EVIDENCE and ANALYSIS

DOES THE APPELLANT HAVE A MEDICAL CONDITION?

10The Minister relied on medical reports from Dr. Zuchelkowski, the appellant’s family doctor, and Dr. Konieczny, a cardiologist who did specialized tests on the appellant at the request of the family doctor.

11The initial reports from the family doctor described a mild to moderate heart condition. The condition noted was Aortic Stenosis (a narrowing of the aortic valve outlet). These reports noted that in 2017 the Aortic Valve Area (AVA) was 3.5cm/2. The family doctor also noted that the appellant had no symptoms and was taking medication for his condition.

12In late 2020 the family doctor was asked to complete a commercial drivers’ medical examination. At that time the family doctor ordered further studies to assess the aortic valve. These studies did not produce adequate images of the aortic valve due to the appellant’s body habitus and accordingly the family doctor referred the appellant to a cardiologist at St. Michael’s Hospital. This doctor completed the studies at St. Michael’s Hospital in Toronto and then had a virtual appointment with the appellant to discuss the results.

13Dr. Konieczny reviewed the results of the investigations with the appellant on April 14, 2021. She reported the appellant had severe aortic stenosis and she told him she was reporting this finding to the Ministry of Transportation and that he may lose his commercial licence. Her report noted the AVA had fallen to 0.8cm/2.

14Dr. Zuchelkowski sent a completed cardiovascular form to the Minister on March 19, 2021. It noted the critical narrowing of the aortic valve and that the family doctor had changed his diagnosis from mild/moderate aortic stenosis to severe aortic stenosis. Mr. Sanftleben conceded there was a medical condition. The appellant in his testimony also conceded there was a medical condition.

15Based on the medical evidence and the concession of the appellant the Tribunal finds that the appellant has a medical condition.

IS THIS CONDITION LIKELY TO SIGNIFICANTLY INTERFERE WITH HIS ABILITY TO DRIVE A COMMERCIAL VEHICLE SAFELY?

16The Minister has the burden of establishing that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely. I find that the Minister has met that burden.

17The Minister drew my attention to the CCMTA recommendations and specifically to section 15.6.3. The CCMTA points out that certain heart conditions, including Aortic Stenosis, can produce episodic loss of consciousness. The Minister pointed out the possible catastrophic effects of loss of consciousness while driving a large commercial vehicle. Section 3.6.36 states among other criteria a driver must have an AVA of 1.0 cm/2 or greater to be eligible for a commercial licence.

18The CCMTA standards are guidelines or recommendations but they are not the law. The Minister outlined how groups of medical experts in jurisdictions throughout Canada and the USA arrived at these standards and guidelines and that the Ontario Ministry of Transportation used these standards to base their medical decisions on.

19The appellant was guided through his testimony by his legal representative. The Minister had no objection to the appellant’s daughter helping the appellant with explanations and clarification of questions and answers as Polish was the appellant’s primary language and he had some difficulty with the English language.

20The appellant testified that he and his wife were a commercial driving team and weekly drove a transport truck from Ontario to Texas and back. They shared the driving and alternated sleeping and driving. They had no responsibility other than driving as they just dropped one trailer and picked up another. As they were together on the trips the appellant pointed out that the appellant’s wife could monitor the appellant and felt this would help prevent any cardiac event.

21The appellant suggested changing to a shorter route and perhaps a smaller truck might make driving less stressful and that his manager would be willing to consider these changes. The appellant pointed out driving freight was an essential service.

22The appellant testified he felt well and had no symptoms. He pointed out he was trying to exercise more and to lose weight. He testified he had cut his smoking down from a package a day to a package every three days.

23The appellant testified he was on coversyl 4 mg for his heart and crestor 10 mg to lower his cholesterol as well as 81 mg ASA as a heart protective drug. He is conscientious taking his medication. The appellant testified he is not anticipating any changes in the medical management of his valvular heart disease.

24The appellant noted his perfect driving record and pointed out a letter of commendation from his employer. This letter stated the appellant was one of the company’s most seasoned, reliable, and safe drivers. This letter was contained in the notice of appeal (exhibit 1).

25The appellant testified he had been seen recently to discuss the possibility of heart surgery to fix or replace the aortic valve. Testing done on May 15, 2021 was not significantly different from the testing reported by Dr. Konieczny on April 14, 2021 (exhibit 5). The appellant went on to reveal that another appointment was booked on June 11, 2021 to see a Dr. Peterson, a vascular surgeon, to get a date for the corrective surgery.

26The Minister made the following submissions with respect to how the appellant’s condition affects the appellant’s ability to drive:

(i) The appellant’s condition is not yet stable. Further treatment is needed to correct the aortic valve The appellant does not dispute the condition. The AVA needs to be rectified and at this point it is not.

(ii) While the appellant’s condition appears stable, at any time and without warning episodes of unconsciousness or even sudden death could occur with disastrous results if the appellant was driving a large commercial vehicle.

(iii) While it was helpful to have his wife as a co-driver she was often sleeping in the cabin and would not be monitoring continuously and therefore would not always be able to intervene in the event of loss of consciousness.

(iv) The appellant has not been able to correct some of his health factors including weight and smoking.

(v) The appellant’s cardiologist has reported the condition to the Minister and is working with the appellant to obtain as surgical solution to this condition. The cardiologist and family both confirm the appellant suffers from severe aortic stenosis.

(vi) The Minister stressed the danger associated with episodic unconsciousness related to severe aortic stenosis. Very specific measurement of the valve is possible and that measurement had to be over 1cm/2 to be safe to drive a commercial vehicle and the appellant’s repeated measurements were 0.8cm/2.

27The evidence supports the Minister’s submissions. I find, on a balance of probabilities, that the appellant’s medical condition (severe aortic stenosis) is likely to significantly interfere with his ability to drive a vehicle safely. A review of the evidence and the appellant’s submissions shows that he has a significant health issue, that he lacks insight into the potential dangers his condition has on his ability to drive a commercial vehicle safely.

E. ORDER:

28For the reasons set out above, pursuant to subsection 50(2) of the HTA, I confirm the Minister’s decision to downgrade the appellant’s commercial licence for medical reasons.