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 subparagraph 32(5)(b)(i) of the Act
Between:
Thomas Breton
Appellant
and
Minister of Transportation
Respondent
DECISION AND ORDER
Panel: Dimitri Louvish, M.D., Member Avril A. Farlam, Vice Chair
Appearances: For the Appellant: Jami Sanftleben, Paralegal For the Respondent: Kyle Biel, Agent
Heard by teleconference: June 2, 2022
REASONS FOR DECISION AND ORDER
Overview
1Thomas Breton (the “appellant”) had ventricular tachycardia and implantable cardioverter defibrillator (“ICD”) shocks on January 27, 2022 (the “incident”). A hospital cardiologist reported to the Registrar of Motor Vehicles (the “Registrar”) that the appellant had a cardiac condition, specifically ventricular tachycardia leading to ICD shocks. Pursuant to s. 203(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”), all medical practitioners are required to report any person 16 years of age or older who is suffering from a condition that may make it dangerous for the person to drive.
2The Registrar suspended the appellant’s Class AC driver’s licence effective February 20, 2022.
3The appellant appealed from this decision.
4By letter dated April 28, 2022, the Registrar notified the appellant that his licence was reinstated but downgraded from an AC to a Class G licence. The decision to downgrade the appellant’s licence was made by the Minister of Transportation (“Minister” or “respondent”) under s. 32(5)(b)(i) of the HTA on the basis of the appellant’s reported ICD as secondary prophylaxis.
5As a result, this appeal continued regarding the downgrade of the appellant’s licence.
ISSUE
6The issue in this appeal is whether the appellant has a medical condition, specifically a cardiac condition, likely to significantly interfere with his ability to drive a Class AC (“commercial”) motor vehicle safely. In order to answer that question, we will address the following issues:
(a) Does the appellant have a cardiac condition?
(b) Is the appellant’s cardiac condition, if any, likely to significantly interfere with his ability to drive a commercial motor vehicle safely?
RESULT
7We find that the appellant suffers from a medical condition, specifically a cardiac condition of ventricular tachycardia with ICD, but that it is not likely to significantly interfere with his ability to drive a commercial motor vehicle safely. Accordingly, we set aside the Minister’s decision to change the class of the appellant’s driving licence.
LAW
8The Minister of Transportation has the authority to change the class of a driver’s licence under s. 32(5)(b)(i) of the HTA which states:
“The Minister may require an applicant for a driver’s licence or an endorsement or a person who holds a driver’s licence to submit to the examinations that are authorized by the regulations at the times and places required by the Minister and to meet other prescribed requirements, and the Minister may, …
(b) in the case of a person who holds a driver’s licence,
(i) impose the conditions authorized by the regulations, remove any conditions or endorsements or change the class or classes of driver’s licence held by the person, in accordance with the results of the examinations and other prescribed requirements…
9The Minister’s decision under s. 32(5)(b)(i) is to be made in accordance with the examinations that the Minister may require and other prescribed requirements.
10One of the prescribed requirements is set out in s. 14(1) of O. Reg. 340/94 (“Regulation”) which states:
“(1) An applicant for or a holder of a driver’s licence must not,
(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely; or
(b) be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.
11In determining whether a person meets that requirement, the Minister may, under s. 14(2)(b) of the Regulation, require him or her to provide satisfactory evidence that he or she is able to drive a motor vehicle of the applicable class safely. That evidence may include any reports of examinations that the Minister has required the person to submit to pursuant to s. 15 of the Regulation.
12Section 14(2)(a) of the Regulation allows the Minister of Transportation 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 they are not binding requirements.
13Subsection 50(1) of the HTA and s. 25.1 of the Regulation provide a right to appeal a decision made by the Minister under s. 32(5)(b)(i) to the Tribunal.
14The Minister has the burden of establishing the ground for changing the class of a driver’s licence on a balance of probabilities. Following a hearing, the Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the Minister.
EVIDENCE AND ANALYSIS
(a) Does the appellant have a cardiac condition?
15The appellant testified that he received his ICD in 2020 as a result of his ventricular tachycardia, has been seeing his cardiologist Dr. Hong regularly since then and has been taking the medication prescribed by Dr. Hong. The appellant’s ICD is monitored remotely several times a day and is checked every six months at a medical facility. The appellant testified that he had no problems driving after receiving the ICD until January 27, 2020 when his ICD administered five shocks on January 27, 2022.
16This is consistent with the medical reports filed by the respondent and we accept the appellant’s evidence.
17On the basis of the appellant’s admission that he has a cardiac condition, specifically ventricular tachycardia with ICD leading to shocks on January 27, 2022, which is consistent with the medical reports filed, we find that the appellant has a cardiac condition.
(b) Is the appellant’s cardiac condition likely to significantly interfere with his ability to drive a commercial motor vehicle safely?
18We find that the appellant’s cardiac condition is not likely to significantly interfere with his ability to drive a commercial motor vehicle safely for the reasons set out below. As a result, we set aside the respondent’s decision to change the class of the appellant’s driver’s licence from AC to G.
19The incident appears to have been an isolated incident likely brought on by a change in the appellant’s medically prescribed medication. The appellant testified that in July 2021, Dr. Hong took him off one of his prescribed medications, amiodarone, and told the appellant it can take up to six months for this medication to leave his system. Approximately six months later, the incident occurred. The appellant testified that post-incident Dr. Hong re-prescribed amiodarone. There has been no further incident since this re-prescription.
20That the medication change likely led to the incident is confirmed by Dr. Hong’s February 18, 2022, cardiovascular assessment in which Dr. Hong recorded that the appellant received the ICD November 4, 2020, and was well until January 27, 2022 when he received five ICD shocks with no loss of consciousness. Dr. Hong wrote “medications adjusted. Now stable on adjusted medications.”
21Significantly, the appellant’s medical condition is once again controlled by the medication Dr. Hong has prescribed for him. As a result, the appellant’s medical condition is now back to his pre-incident baseline when he was AC licensed to drive commercial motor vehicles. There has been no recurrence of the incident. As early as February 18, 2022 in his cardiovascular assessment Dr. Hong confirmed that the appellant’s tachyarrhythmia is adequately medically controlled, albeit on that date for less than four weeks. Dr. Hong also confirmed that the appellant has been prescribed medication, adheres to his recommended treatment regimen, has no limitation of physical activity, and Dr. Hong answered “no” to the question: “In your opinion does the current medication regimen result in any of the side effects listed below to an extent that may impair the patient’s ability to safely operate a motor vehicle.” Dr. Hong added “I would support him reactivating his licence in the timeline stipulated by MTO”.
22Dr. Hong is supportive of the restoration of the appellant’s commercial driving licence. The appellant testified that he has discussed this with Dr. Hong which is consistent with Dr. Hong’s April 27, 2022 report. In that report Dr. Hong confirmed that the appellant is doing well and is stable, he maintains follow-up in his clinic and is committed to regular follow-ups just as he always has, adheres to a regular schedule of cardiac testing including an echocardiogram, Holter monitor booked for July, 2022 and remote monitoring of his ICD from home and regular follow-up at a clinic for his ICD. The appellant’s most recent echocardiogram from January, 2022 revealed preserved LV systolic function with ejection fraction 50-55%. Dr. Hong wrote “I would support his regaining his licence to tow a large trailer, as this is important for his livelihood.”
23We have taken into account that the appellant was able to react appropriately during the incident and demonstrated that he has insight into his condition. During the incident the appellant did not lose consciousness, was still standing and able to call 911. He could feel the shocks and was able to count them. The appellant was taken to the hospital by the ambulance he himself requested in accordance with his cardiologist’s instructions. The appellant is committed to continuing the medical treatment prescribed and has demonstrated that he is aware of how he should respond if shocks are delivered by his ICD. We have also taken into account that the appellant uses his commercial driving licence to perform ancillary tasks for his own businesses and commercial driving is not the sole occupation of the appellant.
24The respondent submits that the 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 under the Regulation and that the appellant does have a cardiac condition likely to do so. In our view the respondent has not established this for the reasons given above.
25The respondent also submits that the appellant is not eligible for a commercial licence on the basis of the CCMTA Medical Standards for Drivers (the “Standards”) with respect to cardiac conditions, specifically Guideline 3.6.32. The respondent conceded that in the appellant’s case, Guideline 3.6.26 had not been considered. Guideline 3.6.26 allows commercial drivers who have had an ICD implanted as primary prophylaxis are eligible for a commercial driving licence under certain conditions. The Standards are not binding on us, and, in this particular case, we decline to follow them. The medical evidence is clear that in this particular case, the incident was an isolated event likely caused by the appellant’s physician changing his prescribed medication. This has now been corrected. The appellant’s cardiac condition has stabilized. There has been no recurrence.
26The appellant testified that he is self-employed and operates several businesses including a pet boarding facility and a storage business for cars, campers and recreational vehicles. He obtained his AC driving licence for purposes of operating his businesses which require him to bring in water with his trailer for the pet boarding facility and moving his customers boats and other vehicles. A loaded trailer is over the weight limit for a G class licence. The appellant is a 62 year old former police officer who said he doesn’t take unnecessary risks and would not drive a vehicle if he felt it was unsafe to do so. We accept that the appellant has insight into his cardiac condition and has been instructed by his cardiologist as to what to do should this type of incident recur, which appears unlikely on the evidence before us.
ORDER
27For the reasons set out above, pursuant to subsection 50(1) of the HTA, we set aside the Minister’s decision to change the class of the appellant’s driver’s licence from Class F to Class G.
Dimitri Louvish, M.D., Member
Avril A. Farlam, Vice Chair
Released: June 24, 2022.