William Merrill v. Minister of Transportation, 2022 CanLII 16926

Date: 2022-03-07

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

Between:

William Merrill

Appellant

and

Minister of Transportation

Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Peter Savage, Member

APPEARANCES:

For the Appellant: William Merrill

For the Respondent: Kyle Biel, Agent for Registrar

Heard by Teleconference: February 18, 2022

REASONS FOR DECISION AND ORDER

A. OVERVIEW

1This is an appeal under s. 50 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (HTA) from a March 5, 2021, decision of the respondent, the Minister of Transportation (the “Minister”), to downgrade the appellant’s class BM commercial driver’s licence to a class G licence. The reason for the downgrade from BM to G was that the applicant suffers from syncope, the etiology of which is unknown.

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

B. LAW

3The Minister has the power under s. 32(5)(b)(i) of the 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 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.

To 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 class-BM vehicle safely?

D. THE EVIDENCE and ANALYSIS

DOES THE APPELLANT HAVE A MEDICAL CONDITION?

9The Minister received and reviewed an annual driver’s medical report from Dr. Christopher Lajeunesse, the appellant’s family physician, that was submitted on September 21, 2021. This medical report indicated the appellant had fainted, in medical terms he had suffered from a syncopal event, a condition that could result in sudden incapacitation and therefore is a risk to safe driving.

10The Minister sent a letter to the appellant on October 21, 2021 notifying him that they required a seizure and loss of consciousness questionnaire completed. That form was completed by the appellant’s family doctor and returned to the Registrar in early November.

11Dr. Lajeunesse completed the questionnaire. Dr. Lajeunesse confirmed a diagnosis of syncope and clarified that the appellant had two bouts of syncope and the cause had not been diagnosed, he noted that a cardiologist had ruled out cardiovascular illness. Dr. Lajeunesse noted that the last bout of syncope was on May 31, 2021.

12The appellant did not deny having two episodes of syncope but presented an alternative theory of their cause. The appellant had had his Pfizer COVID-19 immunization a few days prior to his first syncope (the first week in May 2021) and as well had had his blood pressure medication doubled at approximately the same time. His feeling was the doubling of his blood pressure medication or the COVID-19 immunization had caused the syncopal attack. He stated he had not had an attack of syncope since stopping his blood pressure medication.

13The Registrar pointed out that the medical evidence and the appellant’s testimony confirmed the diagnosis of syncope.

14Based on the medical evidence of the family physician and the testimony of the appellant that he has experienced two bouts of syncope, l find that appellant has a medical condition, namely, syncope.

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

15The 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.

16The Minister drew our attention to the CCMTA recommendations and specifically to section 17.6.12. The CCMTA points out certain conditions can produce episodic loss of consciousness. Syncope is one of these conditions. The Minister pointed out the possible catastrophic consequences from a loss of consciousness while driving a commercial vehicle, which a class-B licence permit. The Minister pointed out that the CCMTA recommendations for syncope varied based on the cause of the syncope. Section 19.6.10 states that, among other criteria, commercial drivers with syncope of unknown cause must not have had an episode for 12 months before they should be considered for re-licensing.

17The CCMTA standards are guidelines and recommendations and I acknowledge that they are not the law. However, I accept that they were produced by a group of medical experts in jurisdictions throughout Canada and the USA. They are also referred to expressly in the legislation, and although as noted they are not binding, they can be persuasive.

18The appellant’s position was that either his vaccination or the increase in his blood pressure medication caused the syncope. He noted since his blood pressure medication had been stopped in June 2021, he has not had another bout of syncope. The appellant argued that while both bouts of syncope occurred while operating a motorized vehicle, he had time to pull over and seek help. Based on his opinion that the cause was known and treated, he believed that CCMTA recommendation 19.6.9 (Syncope with a diagnosed and treated cause –Commercial drivers) should be applied. This would mean a period of only one month free of syncope would be needed following the cessation of his blood pressure medication.

19Under cross examination by the Minister the appellant testified that neither the cardiologist nor the family doctor was willing to provide written confirmation of the appellant’s theory.

20The appellant testified he is a safe driver and a responsible adult, and he feels his BM licence should be restored as he has controlled his spells since May 31, 2021. The appellant feels the 1-year syncope free period is excessive.

21The Minister made the following submissions with respect to how the appellant’s condition affects the appellant’s ability to drive:

a. the appellant’s condition may not yet be stable. The Minister argues that further time is needed to be sure of stability. The appellant does not dispute the condition. The syncope needs to be stabilized and monitored.

b. the appellant’s condition may appear stable, but at any time and without warning episodes of syncope could occur with disastrous results, especially if the appellant was driving a commercial vehicle.

c. the appellant’s two bouts of syncope occurred while operating a motorized vehicle.

d. the appellant’s family physician has reported the condition to the Minister both on the drivers medical and also on the seizure and loss of consciousness questionnaire.

e. neither the cardiologist or the family doctor were able to confirm the appellant’s theory that the syncope was due to increasing blood pressure medication or the Pfizer vaccination. This leaves the condition of syncope with no known diagnosis and the appropriate CCMTA recommendation should apply (19.6.10).

f. The Minister stressed the danger associated with episodic unconsciousness related to syncope.

g. The Minister pointed out the CCMTA recommendation for 1 year of freedom from syncope and at this point only 8.5 months had been completed.

22The evidence supports the Minister’s submissions. I find, on a balance of probabilities, that the appellant’s syncope is likely to significantly interfere with his ability to drive a BM-class vehicle safely. A review of the evidence and the appellant’s submissions shows that he has a significant health issue. Given the nature of his condition, and also that it has only been controlled for 8.5 months at this time, the appellant is likely to constitute a risk to himself and others if he is permitted to drive a commercial vehicle. While the exact period of stability required before he can be relicensed possibly may be less than the 1 year indicated in the CCMTA standards, I am of the view that the 12 months of stability recommended by the CCMTA is a well-reasoned and safe standard and should be followed in this case given its circumstances and the risk involved.

E. ORDER

23For 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.