Licence Appeal Tribunal
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 suspend a licence
Between:
Colin Naismith Appellant
and
Registrar of Motor Vehicles. Respondent
DECISION AND ORDER
ADJUDICATOR: Dr. Peter Savage, Member
APPEARANCES:
For the Appellant: Colin Naismith For the Respondent: Stephen Grotenboer, Agent for Registrar
Heard by Teleconference: May 10, 2022
REASONS FOR DECISION AND ORDER
A. OVERVIEW
1This is an appeal from a decision of the respondent, the Registrar of Motor Vehicles (the “Registrar”), to suspend the appellant’s class G driver's licence. The suspension took effect January 1, 2022 and the cause of the suspension was the appellant’s alleged condition of syncope secondary to ventricular fibrillation followed by shock from his implantable cardioverter-defibrillator (ICD).
B. ISSUE
2The legal issue for the Tribunal to determine is whether the appellant suffers from a medical condition, and whether this condition is likely to significantly interfere with the appellant’s ability to drive safely.
C. CONCLUSION
3For the reasons that follow, the Tribunal finds that the appellant does suffer from a medical condition that is likely to significantly interfere with the appellant’s ability to drive safely. Accordingly, the decision by the Registrar to suspend the appellant’s class G driver’s licence is affirmed.
D. LAW
4The Registrar has the authority under s.47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), to suspend or cancel a driver’s licence for any 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).”
5One sufficient reason to suspend a driver’s licence under s.47(1)(g) of the HTA is that the driver suffers from a medical condition or addiction likely to significantly interfere with his or her ability to drive safely.
6Sections 203(1), 203(2) and 204 of the HTA state as follows:
Every prescribed person shall report to the Registrar every person who is at least 16 years old who, in the opinion of the prescribed person, has or appears to have a prescribed medical condition, functional impairment or visual impairment.
A prescribed person may report to the Registrar a person who is at least 16 years old who, in the opinion of the prescribed person, has or appears to have a medical condition, functional impairment or visual impairment that may make it dangerous for the person to operate a motor vehicle.
A report required or authorized by section 203 must be submitted in the form and manner specified by the Registrar and must include,
(a) the name, address and date of birth of the reported person.
(b) the condition or impairment diagnosed or identified by the person making the report,
7Subsection 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.”
8Section 14(2)(a) of O. Reg. 340/94 allows the Registrar to consider the Canadian Council of Motor Transport Administrators (“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 of Transportation or on this Tribunal.
9The Registrar has the burden of establishing on a balance of probabilities that one or more grounds for suspending a driver’s licence has been made out.
10Pursuant to section 50(2) of the HTA, after a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar.
E. EVIDENCE and PARTIES’ SUBMISSIONS
Registrar’s evidence
11The Registrar reviewed the sections of the HTA and O. Reg. 340/94 that the Ministry relied upon to suspend the appellant’s G-class licence, including section 14(2)(b)(ii), which empowers the Ministry to request information about a condition that may affect the appellant’s ability to drive and requires licence-holders to provide the requested information.
12The Registrar received an unsolicited medical report dated January 10, 2022 from Dr. Andrea Daly, a cardiologist. This report stated the appellant had sudden brief incapacitation due to ventricular fibrillation rapidly corrected by appropriate electrical shock administered by the implanted ICD.
13The Registrar sent a letter to the appellant informing him of the report and suspending his class G driver licence. The letter indicated the licence was suspended based sudden incapacity due to ventricular fibrillation. The letter included a cardiac assessment questionnaire to be filled out by the appellant’s health care provider.
14The Registrar pointed out the cardiac assessment had been completed and returned completed by Dr. S. Powar on January 31, 2022. This questionnaire confirmed the diagnosis of arrhythmia with an implanted ICD. The questionnaire also noted the presence of other cardiac conditions including congestive heart failure, hypertension, and dilated cardiomyopathy.
15The Registrar responded to this report by stating the licence remained under suspension and consideration or reinstatement would only occur after a period of six months free from ventricular fibrillation and confirmation that the ICD had not delivered a correcting shock for a period of six months.
16The Registrar pointed out the appellant’s long history of heart disease.
17The Registrar pointed out that the CCMTA was a group of road safety experts from across Canada. The CCMTA made recommendations regarding driving safety and the effect of medical conditions on the ability to safely drive a motor vehicle. Those recommendations are found in the CCMTA Standards.
18The Registrar pointed out the dangers that sudden incapacitation could present while driving. The CCMTA Standards outline the dangers of ventricular fibrillation. The Registrar directed me to sections 3.6.8 and 3.6.28 of the CCMTA Standards. These sections recommend a period of six months free from ventricular fibrillation or from discharge of the implanted ICD when the driver has had a period of incapacitation from the ventricular fibrillation or the discharge of the ICD.
19The Registrar noted the fact that the appellant’s medications had been changed in the last few months and stressed that more time was needed to be certain the condition was stabilized. The Registrar stressed the danger of another event happening resulting in sudden incapacitation affecting the appellant’s ability to drive safely.
20The Registrar pointed out that the medical evidence confirms a diagnosis Ventricular Fibrillation with sudden incapacitation. The Registrar also stated the appellant has taken positive steps, but not enough time has passed to be sure of stability and a longer period of suspension was needed. The Registrar’s position was that a full six months of abstinence was needed before the appellant could safely be considered for licensure. The Registrar emphasized that the CCMTA Standards left no room for anything but a six-month period of suspension.
Appellant’s evidence
21The appellant was well prepared for the hearing and was credible. He gave his testimony and answered questions in a straightforward, non-evasive manner.
22The appellant testified that on January 9, 2022 in the early afternoon he felt very briefly dizzy and weak and very shortly after that he was aware of shocking feeling in his chest and he knew his ICD had discharged. The appellant testified this was a very brief period of dizziness and weakness and he didn’t believe he had lost consciousness.
23The appellant testified he had been advised to go to hospital if he lost consciousness for a significant period or if there was a second discharge of his ICD. He did not go directly to hospital but later in the afternoon his family convinced him to attend the emergency department.
24The appellant testified the emergency doctor found nothing wrong and said the ICD had worked properly and did its job. The emergency doctor was going to discharge the appellant, but the cardiologist wanted to keep him overnight and have him go to the pacemaker clinic in the morning. The appellant spent the night in the hospital and attended the pacemaker clinic in the morning. The pacemaker clinic found the ICD in good order but they noted a blood clot in the heart when an echocardiogram was done. The appellant testified he was told this was not serious, but the cardiologist put him on Warfarin (an oral anti-coagulant) and stopped the 81 mg aspirin he had been on previously.
25The appellant stated he was told his licence was under suspension but he did not know how long the suspension was going to be.
26The appellant testified he has had heart disease for 16 years and this was the first time his ICD had discharged. The appellant reviewed his past history and testified that in his opinion his biggest heart problem was congestive heart failure. He did admit that in the past he has had a heart attack, hypertension, atrial fibrillation and dilated cardiomyopathy; however, he maintained these conditions were under control with medication and careful management by his cardiologist.
27The appellant testified that there were medication changes made in November 2021 and at the time of the event in January 2022. These changes in medication were directed at control of his heart disease. He feels these changes have been helpful.
28The appellant testified that since the January 2022 event there has been no further cardiac or ICD event. The appellant testified he felt very well and the rest and time off work had helped him feel better; however, he was ready to get back to work and needed to return to work for both financial and quality of life reasons.
29The appellant testified both his family doctor and cardiologist had given him permission to return to work but the appellant did not testify that they had told him he could return to driving.
30The appellant testified that he is a safe driver and that he would never drive while his ability was impaired.
31The appellant felt his cardiac condition although serious was controlled and that waiting a few more weeks was not necessary.
F. ANALYSIS
Does the Appellant Suffer from ventricular fibrillation with sudden incapacitation?
32The medical evidence establishes that the appellant suffered from ventricular fibrillation and sudden incapacitation. First, I have the unsolicited medical report from the cardiologist and then verification from the cardiovascular disease questionnaire.
33Testimony from the appellant verifies he has heart disease and suffered a brief period of incapacitation followed by discharge of his ICD.
34Considering all the above, I am satisfied that the appellant has the medical condition of heart disease and suffered ventricular fibrillation with a period of sudden incapacitation.
Is the appellant’s ventricular fibrillation with sudden incapacitation likely to significantly affect the appellant’s ability to drive a motor vehicle safely?
35Having determined the appellant has a condition, I must now determine whether the Registrar has discharged its burden of proving that this condition is likely to significantly affect the appellant’s ability to drive a motor vehicle safely.
36There is direct medical evidence in the cardiac questionnaire and in the unsolicited medical condition report that the appellant has significant cardiac disease. This includes hypertension, congestive heart failure, atrial fibrillation, dilated cardiomyopathy, as well as ventricular fibrillation with a period of sudden incapacitation.
37The cardiac questionnaire asks the question “is the annual risk of sudden incapacitation less than 1%.” The family doctor indicates unknown. As a physician licenced to practice in Ontario I find this unknown risk concerning.
38Relying on the CCMTA Standards, the Registrar draws attention to the dangers associated with ventricular fibrillation, sudden incapacitation, and ICD shock as they relate to driving, that several medication changes have been made in the past year, and therefore more time is needed to be sure of stability. The CCMTA Standards recommend six months of stability with no mention of a lesser time for any reason.
39The appellant testified that his doctors told him it was ok to go to work but there is no testimony or documentation that the doctors advised that they felt it was safe to go back to driving.
40The appellant’s position was that he had complied with all the steps his doctor had suggested, and he was going to continue to follow through. He argues waiting a few more weeks to achieve some arbitrary period was not needed.
41The CCMTA Standards are not binding on the Tribunal, though the Regulation refers to them specifically and gives the Minister the authority to consider them in making medical suspension decisions. Likewise, the Tribunal may take them into consideration. In my view, the CCMTA Standards should be accorded significant weight in medical suspension cases, including in the present case.
42The Registrar suggests the evidence from the unsolicited medical report and cardiac questionnaire is strong enough to convince us that the medical condition would affect the appellant’s ability to drive safely at this time.
43I agree that the unsolicited medical report contains enough information to conclude that the appellant suffered ventricular fibrillation with sudden incapacitation. I also agree that there is enough information to establish that the appellant has serious cardiac illness which is to an extent that it would likely significantly affect the appellant’s ability to drive safely. I am persuaded by the recommendations in the CCMTA Standards in this case.
44The burden of proof rests with the Registrar in this appeal and the Registrar has established that the appellant’s heart condition is likely to significantly interfere with his ability to drive safely.
ORDER
45Pursuant to subsection 50(2) of the HTA I confirm the Registrar’s decision to suspend the appellant’s class G driver’s licence.
LICENCE APPEAL TRIBUNAL
Dr. Peter Savage, Member
Released: May 18, 2022