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:
Edwin Thompson
Appellant
and
Minister of Transportation
Respondent
DECISION AND ORDER
ADJUDICATOR: Dr. Peter Savage, Member
APPEARANCES:
For the Appellant: Edwin Thompson, Self-Represented
For the Respondent: Kyle Biel, Agent
Heard by Teleconference: July 19, 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 an October 21, 2021 decision of the respondent, the Minister of Transportation (the “Minister”), to downgrade the appellant’s class AZ commercial driver’s licence to a class G licence. The reason for the downgrade from AZ to G was that the applicant suffers from cardiac disease, specifically ventricular tachycardia and or ventricular fibrillation requiring the insertion of an ICD (Implantable Cardioverter Defibrillator) as secondary prophylaxis for potential future arrhythmias.
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 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 AZ vehicle safely?
D. ANALYSIS
DOES THE APPELLANT HAVE A MEDICAL CONDITION?
9Since the year 2000 the Minister had received and reviewed annual driver’s medical reports from Dr. Adam Steacie, the appellant’s family physician. These were annual reports on the appellant’s cardiac health and his fitness to drive vehicles requiring an AZ licence. The reports were required as the appellant had suffered a myocardial infarct in the year 2000. The reports were favourable, and the commercial licence was maintained until October 2020 when the family doctor’s report noted the appellant had suffered a bout of ventricular arrhythmia requiring defibrillation and had subsequently had an insertion of an ICD for secondary prophylaxis. This medical report also indicated the appellant suffered from heart failure, hypertension and valvular heart disease.
10The Minister sent a letter to the appellant on October 21, 2020 notifying him that they required a cardiovascular questionnaire completed. That form was completed by the appellant’s family doctor and returned to the Registrar in early November.
11Between October 2020 and June 2022 communication continued between the Registrar and the appellant. There were numerous pieces of information submitted by the family doctor and the cardiologist in Ottawa. The concerning issues of heart failure and the use of inotropic agents were discussed and have been addressed and the Registrar is satisfied that the only issue remaining is the ICD that has been inserted for secondary prophylaxis.
12The appellant did not deny having had a myocardial infarct, hypertension, heart failure and valvular heart disease. He admits he had an ICD inserted in December 2019 but maintains it was for primary prophylaxis.
13The Registrar pointed out that the medical evidence and the appellant’s testimony confirmed the diagnosis of heart disease.
14Based on the medical evidence of the family physician, cardiologist and the testimony of the appellant confirming cardiac disease l find that appellant has a medical condition.
IS THIS CONDITION LIKELY TO SIGNIFICANTLY INTERFERE WITH HIS ABILITY TO DRIVE A COMMERCIAL VEHICLE SAFELY?
15The Registrar 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 Registrar has met that burden.
16The Registrar drew our attention to the CCMTA recommendations. The CCMTA points out certain conditions can produce sudden unexpected episodic loss of consciousness. Ventricular fibrillation and ventricular tachycardia are two of these conditions. The Minister pointed out the possible catastrophic consequences from a loss of consciousness while driving a commercial vehicle. The Minister pointed out that the CCMTA recommendations for commercial drivers that have had an ICD implanted for secondary prevention were contained in point 3.6.32 of the guidelines. They state that drivers are generally not eligible for commercial licensing. There may be exceptions if their cardiologist will certify their risk of arrhythmia is less than one percent a year.
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 his ICD was implanted for primary prophylaxis and not for secondary prophylaxis.
19The appellant argues that he is unclear as to what happened to him on December 9, 2019. He testifies he felt unwell while at work delivering propane. He saw his doctor at 4:30 p.m. that day and his doctor noted his pulse was 150. His doctor drove him to the Brockville hospital where he was given medication but his condition worsened and he continued to feel unwell. At 9:30 p.m. the doctors told him they were going to stop his heart and that is all he remembers until he awoke in the next morning of December 10, 2019 in the ICU of the Ottawa hospital. At that time, he felt well and had no symptoms. However, he was kept in hospital another 14 days. The day prior to his discharge an ICD was inserted and in his opinion, this was for primary prevention.
20The appellant’s wife testified that she saw her husband at 6:30 p.m. in the emergency department of the Brockville hospital. She noted he was agitated, pale and sweating. The doctor took him to a treatment room at about 9:30 p.m. and when he spoke to her later she was told that her husband had been “gone” for ten minutes and they had resuscitated him and were sending him to a cardiac centre for further treatment. Her husband had a breathing tube inserted and was unconscious. She was not told what had happened nor was she given a diagnosis. She went with him to Ottawa and noted he was much improved the next day although complaining of sore ribs and chest.
21The appellant points out:
There was a 13-day period without an ICD and therefore this was a primary insertion of an ICD;
Neither the cardiologist nor the family doctor told him not to drive commercially after the events of December 2019;
His ICD has not fired since it was inserted;
He feels well and is active and his other cardiac issues are all stabilized and under control with medication;
He has the written support of his family doctor in regaining his commercial licence;
He has close follow up with his cardiologist who feels he is doing very well; and
He has a perfect driving record and as a father and grandfather would be the first to surrender his licence if he felt he was any danger on the road.
22The appellant testified that neither the cardiologist nor the family doctor was willing to certify that his risk of ventricular arrhythmia was less than one percent a year. The appellant stated that the cardiologist said nobody could do that and the appellant felt the request for any such certification was inappropriate.
23The appellant testified he is a safe driver and a responsible adult, and he feels his AZ licence should be restored as he is stable and symptom free and has had no further spells.
24The Minister’s agent made the following submissions with respect to how the appellant’s condition affects the appellant’s ability to drive:
The appellant’s condition may not be stable;
The appellant’s condition may appear stable, but at any time and without warning episodes could occur with disastrous results, especially if the appellant was driving a commercial vehicle;
The appellant’s arrhythmia occurred while working and operating a motorized vehicle;
The appellant’s family physician and cardiologist have reported that the ICD was inserted for secondary prophylaxis;
Neither the cardiologist nor the family doctor were able to confirm the risk of arrhythmia was less than one percent per year;
The Minister’s agent stressed the danger associated with unconsciousness related to arrhythmia; and
The Minister’s agent pointed out the CCMTA recommendation 3.6.32 clearly stating drivers are not eligible for commercial licensing after the insertion of an ICD for secondary prophylaxis.
25I reviewed the Canadian Medical Association’s recommendations, and they are consistent with the CCMTA standards. Drivers are not eligible for commercial licensing if an ICD is inserted for secondary prevention. They go on to say exceptions can occasionally be made if a cardiologist will certify that the risk of arrhythmia is less than one percent a year and they note more favourable decisions are often made in drivers with no cardiac co-morbidities. In our case the appellant has heart failure, hypertension, valvular heart disease and has had a previous myocardial infarct.
26The evidence supports the Minister’s submissions. I find, on a balance of probabilities, that the appellant’s arrhythmia is likely to significantly interfere with his ability to drive an AZ-class vehicle safely. A review of the evidence and the appellant’s submissions shows that he has a significant health issue. I find that the ICD was inserted for secondary and not primary prophylaxis. Given the serious nature of his condition, the appellant is likely to constitute a risk to himself and others if he is permitted to drive a commercial vehicle. While his family doctor is supportive of reinstatement of the commercial licence and the cardiologist is saying the appellant is doing well neither is willing to state that the risk of arrhythmia is less than one percent per year. I am of the view that the standard in the CCMTA Standards is well-reasoned and prudent, and in my view it should be followed in this case given its circumstances and the risk involved.
ORDER
27For 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.
LICENCE APPEAL TRIBUNAL
Dr. Peter Savage, Member
Released: July 27, 2022