Date: 2021-06-23

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:

Yuriy Romanets

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

Panel: Dr. Erica Weinberg, Member

Appearances:

For the Appellant: Yuriy Romanets, Self-represented

Yuliya Romanets, Appellant’s Daughter and Interpreter

For the Respondent: Kyle Biel, Agent

Heard by Teleconference: May 31, 2021

A. Overview:

1Yuriy Romanets (the appellant) appeals the downgrade of his commercial Class AZ driver’s licence under s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”).

2On January 26, 2021 the appellant was involved in a motor vehicle accident (“MVA”). This MVA led a police officer to file a “Request For Driver’s Licence Review” with the Registrar of Motor Vehicles expressing concerns that the appellant may be or is suffering from a medical condition that may make it unsafe or dangerous for him to operate a motor vehicle.

3The appellant’s driver’s licence was suspended for medical reasons on February 19, 2021.

4On April 9, 2021 the appellant’s Class G driver’s licence was reinstated.

5The issue in this appeal is whether the appellant suffers from a medical condition, specifically unexplained syncope with visual loss in both eyes (“unexplained syncope with bilateral VL”), which is likely to significantly interfere with his ability to drive a commercial vehicle safely.

6Having considered all of the evidence before me and for the reasons set out below, I find that on a balance of probabilities, the appellant suffers from the medical condition of unexplained syncope with bilateral VL. Furthermore, I find on a balance of probabilities, that this medical condition of unexplained syncope with bilateral VL is likely to significantly interfere with his ability to drive a commercial Class AZ vehicle safely.

7Accordingly, I confirm the Minister of Transportation’s (the “Minister”) decision to change the class of the appellant’s driver’s licence.

B. ISSUES:

8The issue in this appeal is whether the appellant suffers from a medical condition, specifically unexplained syncope with bilateral VL, which is likely to significantly interfere with his ability to drive a commercial vehicle safely.

9To answer this question, I will address the following issues:

a. Does the appellant suffer from the medical condition of unexplained syncope with bilateral VL?

b. Is the appellant’s medical condition, if any, likely to significantly interfere with his ability to drive a commercial Class AZ vehicle safely?

C. LAW:

10Under the HTA the Minister is responsible for ensuring that commercial drivers are medically fit to drive commercial vehicles on the highway. In this case the Minister acted pursuant to s. 32(5)(b)(i) of the HTA and s. 14(1)(a) of O. Reg. 340/94 (the “Regulation”).

11Under s. 14(2)(b) of the Regulation, the Minister may require a driver to provide satisfactory evidence that he or she is able to drive safely.

12A person whose licence is downgraded under these provisions may appeal the downgrade to the Tribunal under s. 50(1) of the HTA.

13On appeal, the Minister has the burden of establishing, on a balance of probabilities, that the licence should remain downgraded.

14Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Minister.

15Section 14(2)(a) of the Regulation allows the Minister to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers (the “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.

D. EVIDENCE AND ANALYSIS:

a. Does the appellant suffer from unexplained syncope with bilateral VL?

16I find on a balance of probabilities that the appellant suffers from the medical condition of unexplained syncope with bilateral VL.

17The appellant testified that on the early afternoon of January 26, 2021 he was driving his tractor trailer (“TT”) at approximately 90 km/hr on a two-lane highway when he had a sudden loss of sight or vision/blackness in both eyes for two to three seconds. He denied losing consciousness or having any unusual sensations in his arms or hands and stated that he was able to firmly hold onto the steering wheel during the episode. The appellant denied experiencing any warning signs or symptoms prior to the episode, such as headache, dizziness, chest pain or shortness of breath.

18The appellant was initially transported to a local hospital but was subsequently transferred to a regional hospital where he was admitted from January 26-29, 2021, and had numerous medical tests performed.

19Some of the hospital tests and results included:

• a CT scan of the head without contrast, indicating an area in the left frontal lobe likely representative of an old stroke;
• a CT angiogram of the head and neck reported as unremarkable for issues in the arteries/veins within the neck or brain;
• an echocardiogram of the heart, which was reported as a technically limited study;
• an ECG reporting a sinus arrhythmia with occasional premature ventricular complexes;
• a non-sleep deprived electroencephalogram reported as normal; and
• numerous blood tests revealing significantly elevated lipid and cholesterol levels.

20The “Patient Oriented Discharge Summary” (“PODS”) from the January 2021 hospital admission, submitted as evidence, indicates the reason the appellant came to hospital was for “syncope NYD (not yet diagnosed) with VL”. As per the CCMTA Standards, “syncope refers to a partial or complete loss of consciousness (“LOC”).¹ In addition, the PODS indicated that a follow-up appointment with a stroke prevention clinic closer to the appellant’s home had been arranged.

21Dr. S., an internist from the stroke prevention clinic, assessed the appellant by phone on February 23, 2021. The appellant completed 14-days of Holter monitoring (to assess his heart’s rhythm) and Dr. S. reviewed the results prior to speaking with the appellant again on March 30, 2021. Dr. S.’s March 30, 2021 follow-up report states that, the appellant currently has no symptoms, is now on vascular risk protection and no further follow-up has been arranged.

22The appellant was referred by his family physician to neurologist Dr. P. for “history of a syncope episode”. The appellant saw Dr. P. in his office in late March 2021.

23In a Seizures and Loss of Consciousness form (“SLOC” form) completed on March 26, 2021, Dr. P. indicated that:

• the appellant had unexplained syncope;
• according to the appellant, there was no LOC and he had two to three seconds of darkness in his eyes; and
• according to the hospital notes, the most recent reported episode occurred between one week and less than three months earlier.

24The appellant is of the opinion that his episode on January 26, 2021 was caused by either stress or high blood pressure (high “BP”). The appellant stated that while he was driving the TT on January 26, 2021, he received a phone call from his wife telling him that a close family member was in an Intensive Care Unit. In addition, the appellant stated that the paramedics who attended at the location where he had parked his TT after the episode told him his BP was high, as did someone else while he was in hospital. The police officer’s “Request for Driver’s Licence Review” states that the paramedics indicated to the police that the appellant had an extremely high BP.

25I prefer the opinion of Dr. P., that the appellant experienced an episode of unexplained syncope on January 26, 2021, over that of the appellant that the syncope was caused by stress or high BP. Nowhere in Dr. P.’s completed SLOC form, including the “Comment” section, did Dr. P. indicate that the episode was due to stress. Dr. P.’s consultation note states that the appellant reported that the episode could be due to stress related to the diagnosis of cancer in a relative. However, I find that this does not mean, on a balance of probabilities, that Dr. P. himself told the appellant that the episode was caused by stress. Furthermore, the appellant denied having a diagnosis of high BP or being on any BP medication prior to the episode or since his discharge from hospital. Nowhere in Dr. P.’s completed SLOC form, including the “Comment” section, or in his consultation note, did Dr. P. indicate that the episode was caused by high BP. Moreover, Dr. P.’s medical opinion of unexplained syncope was based on a review of the patient’s history, a physical examination (including a BP measurement) and a review of all the medical information available to him.

26In addition, I prefer the opinion of the healthcare professionals at the regional hospital where the appellant was admitted over that of the appellant with regards to the cause of his episode of syncope with bilateral VL. The PODS indicates the reason the appellant came to hospital was for “syncope NYD (not yet diagnosed) with VL”. The PODS does not mention the appellant’s BP and no BP medication was prescribed to the appellant on discharge from the hospital. I find, based on my knowledge as a licenced and duly qualified physician in the province of Ontario with a general practice licence,² that if the healthcare professionals thought that the appellant’s BP was the cause of his syncope, then they would not have called his episode NYD. The physician discharge summary from the appellant’s hospitalization was not submitted as evidence.

27Assuming without deciding that the appellant experienced high BP after his episode and the events that ensued, I am not persuaded that the appellant’s BP after the episode and the events that ensued is relevant. As stated above, no medical professional has indicated or opined in the evidence before me, that the episode, itself, was caused by high BP. Furthermore, based on my knowledge, I am aware that high BP after the episode and the events that ensued, does not necessarily mean that the appellant’s episode, itself, was caused by high BP.

28The appellant stated in his Notice of Appeal and at the hearing that: the doctors couldn’t find the correct diagnosis; there is no explanation for the VL; the doctors told him that he is in perfect condition and is healthy; he had every possible medical test done; and his tests were all perfectly fine, with no abnormalities.

29Based on the evidence before me and as described above, I find on a balance of probabilities, that the appellant’s health is not in “perfect condition” and some of his medical tests did show abnormalities.

30I acknowledge that despite admission to hospital following his January 2021 episode to run numerous tests and further consultation with two specialists, there has been no firm medical explanation for the appellant’s episode of syncope with bilateral VL. However, based on my knowledge, I am aware that medicine is not an exact science, the appellant did not have “every possible medical test done” and that although a firm cause for the appellant’s episode could not be determined based on the testing conducted, this does not mean that there is not something wrong.

31Based on the above and the totality of the evidence before me, I find on a balance of probabilities that the appellant suffers from unexplained syncope with bilateral VL.

b. Is the appellant’s medical condition of unexplained syncope with bilateral VL, if any, likely to significantly interfere with his ability to drive a commercial Class AZ vehicle safely?

32The Minister has the burden of establishing, on a balance of probabilities, that the appellant’s medical 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 met its burden.

33I find on a balance of probabilities, that the appellant’s medical condition of unexplained syncope with bilateral VL is likely to significantly interfere with his ability to drive a commercial Class AZ vehicle safely.

34The appellant described the events that transpired on the early afternoon of January 26, 2021, to the best of his ability. He testified that he had already been driving the TT for six hours, the traffic on the two-lane 90 km/hr highway he was on at that time was “so so” and “not overcrowded”, and there were no significant weather concerns. He stated that when he lost vision in both eyes simultaneously for two to three seconds he did not let go of the steering wheel, started to brake to gradually slow the TT down, felt some sideways movement of the TT, felt that the TT wasn’t moving normally, and felt the TT going into the other lane (i.e. into eastbound opposing traffic). He further stated that when his vision returned he steered the TT back to his (westbound) lane, put his flashers on, and found a place to pullover and park the TT, less than one kilometer down the highway in an area for snow plows/equipment. When the appellant got out of his TT, he stated that he started performing a truck inspection. He denied calling “911”. He further stated that, while he was doing his inspection, another vehicle pulled up, a man came out of the vehicle, and this man told the appellant that the appellant had caused an accident and that the police had already been called. Although the appellant referred to “scratching” a vehicle during his episode of bilateral VL, despite a number of attempts to clarify what transpired, I was not persuaded by the appellant’s testimony that, prior to parking the TT and being approached by the man, he was aware that he had caused a MVA during his episode of bilateral VL. Furthermore, the appellant stated that, at a later date, his “safety manager” told him that the woman in the vehicle he hit had called her husband, who happened to be in his own vehicle nearby, and that the MVA victim’s husband was the man who came to where the TT was parked.

35In the police officer’s “Request for Driver’s Licence Review,” he described the MVA victim’s view of the event on the early afternoon of January 26, 2021. He stated that she was driving her SUV eastbound in a straight stretch of the highway and about 200 metres ahead of her an oncoming TT gradually crossed the centre line and entered into her lane. She slowed her speed and moved onto the eastbound shoulder as the TT continued in her direction. She feared that the TT looked as though it was going to strike her head-on. The TT swiped her driver’s side rear bumper causing damage to the bumper by ripping a section of the bumper off. The TT driver regained control of the TT and pulled back into the westbound lane.

36I acknowledge that this is hearsay evidence and recognize that despite having the discretion to admit hearsay evidence, tribunals must be cautious in doing so given that hearsay evidence can be inherently unreliable. However, in this case I accept the hearsay evidence of the police officer. He was acting under his duty as an officer and would have taken contemporaneous notes of his observations and interactions with the witness/victim of the MVA. In any event, the appellant did not challenge the fact that on the day in question, his TT was involved in a collision with the victim’s vehicle.

37As per its letters to the appellant dated April 9, May 19 and May 26, 2021, the Minister is of the opinion that in order to reinstate the appellant’s commercial driver’s licence, it requires confirmation that the appellant has not experienced any further episodes for at least one year. The respondent stated that the Minister is basing this opinion on s. 19.6.10 of the CCMTA Standards (Single or recurrent unexplained, single or recurrent vasovagal, or recurrent typical vasovagal syncope – Commercial drivers).

38The appellant is of the opinion that it has already been four months since his episode, he has no symptoms, all his tests were “normal”, it was high BP or stress that caused his episode and his “doctors don’t see a problem” with his driving a commercial vehicle.

39I acknowledge that based on Dr. S.’s consultation and follow-up notes, Dr. S. was aware that the appellant had a commercial driver’s licence prior to the episode on January 26, 2021. However, Dr. S. does not specify which class of driver’s licence he is referring to when, on March 30, 2021, he wrote, “assuming no focal findings were found, the licence should be reinstated in the foreseeable future”. Furthermore, Dr. P., who personally examined the appellant on March 26, 2021 and did not find any focal findings, did not indicate in writing on either the SLOC form or in his consultation note that he supported the reinstatement of the appellant’s commercial licence. Dr. P. simply stated, “He asked me to fill out the form…to reobtain his driver’s licence.”

40The appellant is currently employed and working at “the yard” for less pay and stated that when he gets his commercial driver’s licence back, he plans to drive less than his previous schedule of 12 hours per day, five days per week. I also acknowledge and commend the appellant for recently taking steps to improve his health including losing weight, monitoring his BP, doing Yoga and taking his vascular protective medications.

41Although I am not bound by the CCMTA Standards, they may be persuasive. I note that they emphasize making a risk analysis of all relevant sources of information that considers a number of factors, including whether the impairment is persistent or episodic and the individual characteristics and abilities of each driver (e.g. whether the driver is a commercial or non-commercial driver, the driver’s ability to compensate for any impairments, whether the driver has insight into the medical condition and the impact that the medical condition may have on driving).³

42I acknowledge the burden that the lack of a commercial driver’s licence is having on the appellant. However, driving a commercial vehicle is a privilege, not a right. While I understand the practical challenges that can result from a licence downgrade, I must apply the provisions of the HTA and Regulation, keeping in mind the objective of ensuring public road safety.

43In summary, I find on a balance of probabilities that the appellant’s medical condition of unexplained syncope with bilateral VL is likely to significantly interfere with his ability to drive a commercial Class AZ vehicle safely. In arriving at this conclusion, I have relied on the following:

1. On January 26, 2021 while driving a TT at 90 km/hr along a straight stretch of a two-lane highway, the appellant suffered an episode of bilateral VL which, according the appellant, lasted for two to three seconds.

2. The appellant did not have any warning signs or symptoms prior to the episode. As a result, the appellant did not have time prior to the episode to allow him to pull his TT safely off the road.

3. Despite a thorough medical workup, a firm medical diagnosis for this episode was not found. In the evidence submitted, no medical professional indicated or opined that this episode was caused by high BP or stress.

4. The evidence discloses that the appellant suffered an episode of unexplained syncope with bilateral VL.

5. Unexplained syncope with bilateral VL causes an episodic impairment of the functions necessary for driving.

6. As was demonstrated by the MVA which ensued when the appellant suffered unexplained syncope with bilateral VL while driving, a driver cannot compensate for such an impairment.

7. I accept as self-evident that commercial drivers often drive under more adverse conditions and drive longer distances than drivers of non-commercial vehicles. Furthermore, should a crash occur, the consequences are much more likely to be serious given the gross weight of the vehicle involved.

8. The appellant admitted that during his episode of unexplained syncope with bilateral VL his TT crossed over into the oncoming traffic lane prior to him regaining his vision.

9. I was not persuaded by the appellant’s testimony that he was aware prior to parking his TT approximately one kilometre further down the highway and being approached by the MVA victim’s husband that he was aware he caused a MVA during his episode of unexplained syncope with bilateral VL.

10. I find that, had the driver of the SUV travelling in the opposite direction on the two-lane highway not been as aware as she was of an oncoming TT crossing into her lane and approaching her head-on, she would not have had sufficient time to reduce her speed and pull onto the shoulder of the highway.

11. As per the “Request for Driver’s Licence Review” submitted as evidence, the TT swiped the driver’s side of the MVA victim’s vehicle, ripping a section of the rear bumper off.

12. I accept as self evident that, had the TT swiped the driver’s side of the MVA victim’s vehicle slightly more anteriorly, the MVA could have been much more devastating.

13. I also accept as self evident that, had the appellant’s episode of unexplained syncope with bilateral VL not occurred on a straight stretch of the highway, the MVA could have been much more devastating to the appellant or the public.

14. No medical specialist has given a medical opinion on the likelihood of the appellant having a similar episode in the future.

15. Based on my finding that the appellant experienced an episode of unexplained syncope with bilateral VL, I find that a longer period of stability is required.

44Based on the totality of the evidence before me and after careful consideration, I find that the Minister has discharged its onus of establishing that the appellant’s unexplained syncope with bilateral VL is likely to significantly interfere with his ability to drive a commercial vehicle safely.

E. ORDER:

45For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Minister’s decision to change the class of the appellant’s driver’s licence is confirmed.

Footnotes

1. 1Canadian Council of Motor Transport Administrators, National Safety Code, Ottawa: CCMTA, 2021, Standard 6, Part 2: CCMTA Medical Standards for Drivers, s. 19.1 [CCMTA Standards].
2. 2Pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c S. 22, “a tribunal may, in making its decision […] take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge”.
3. 3CCMTA Standards, ss. 6.1, 6.2.1.