Tribunal File Number: 14054/MED
Appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a decision to change the class of a licence pursuant to Section 32(5)(b)(i) of the Act.
Between:
Ian Awerbuck
Appellant
and
Minister of Transportation
Respondent
DECISION AND ORDER
Panel: Dimitri Louvish, M.D., Member Laura Hodgson, Member
Appearances:
For the Appellant: Self-represented
For the Respondent: Stephen Grootenboer, Agent
Heard by teleconference: July 14, 2022
REASONS FOR DECISION AND ORDER
Overview:
1This is an appeal from the decision of the respondent to change the appellant’s driver’s licence from a commercial class A licence to a non-commercial class G licence.
2The issue on this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive safely.
3Having considered all of the evidence and for the reasons that follow, the Tribunal finds that the appellant’s medical condition, a cardiac condition with an implantable cardioverter defibrillator (ICD) for secondary prophylaxis, is not likely to significantly interfere with his ability to safely drive a commercial motor vehicle. Accordingly, we set aside the respondent’s decision to change the class of the appellant’s driving licence.
LAW
4The respondent has the power under s. 32(5) (b) (i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “HTA”) to change the class of a driver’s license where prescribed requirements are not met. One of these requirements is that the driver must not suffer from a medical condition likely to significantly interfere with his or her ability to drive safely. Subsection 14(1) of O. Reg. 340/94 (the “Regulation”) under the HTA 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.
5Under 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 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.
6Section 14(2) (a) of the Regulation allows the Minister 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 consider the CCMTA Standards. They are not, however, binding requirements.
7The respondent has the burden of establishing the grounds for changing a class of licence on a balance of probabilities. The Tribunal may, under s. 50(2) of the HTA, confirm, modify or set aside the decision or order of the respondent.
EVIDENCE AND ANALYSIS
8As a commercial driver, the appellant is required to file medical reports on a cyclical basis. In a report dated December 3, 2020, the appellant’s family doctor indicated that the appellant had suffered a cardiac arrest (ventricular tachycardia) in August 2020 and received an ICD at that time. An ICD is a device placed in the chest to detect and stop cardiac arrhythmia such as ventricular fibrillation.
9As a result of this report, the respondent requested further documentation. In a letter dated December 6, 2021, the respondent notified the appellant that, due to his ICD, he no longer met the medical standards for a commercial licence. As a result, his commercial licence was changed to a “Class G”. The appellant appeals from this decision.
10Before the Tribunal, the respondent highlighted that, according to section 3.6.32 of the CCMTA Medical Standards for Drivers, individuals who have an ICD as a secondary prophylaxis are not eligible for a commercial licence. In the respondent’s submission, the decision to change the appellant’s class of licence is reasonable, prudent and supported by the CCMTA.
11The appellant provided detailed, current medical documentation. In a letter dated April 12, 2022, the appellant’s cardiologist notes, “Overall, I believe this patient is quite stable at this time when we checked his echocardiogram at the last visit, his LV function is actually normal with isolated wall motion abnormalities. He is on adequate medical therapy and reassured that he is quite stable in a cardiac perspective.” The doctor indicted his belief that it is safe for the appellant to drive. With respect to a professional driver’s license, he indicated that it should be clarified that there were no major VT episodes or ICD interrogation and no recent episodes of ICD therapies. A follow up letter dated May 12, 2022, from the cardiologist who inserted the ICD (a heart rhythm specialist), confirmed that the appellant’s device is functioning normally and there have been no recurrence of arrythmias. This specialist stated that he saw “no contraindication to his being able to return to driving commercially”.
12A letter from the appellant’s family physician dated April 19, 2022, summarizes that the appellant has had stable cardiac rhythm for the past 18 months, recent interrogation of his ICD shows no recent arrythmia in his data log and his cardiologist is of the opinion that he is fit to drive. Lastly, a July 4, 2022, follow up report from the appellant’s cardiologist again reports no major symptoms and a functioning ICD with no recent ICD therapies or arrhythmias.
13The appellant testified that that he has regular appointments with his family physician and cardiologist. He is fully compliant with his medications, regularly has his device assessed and understands the implication of the ICD. The appellant indicated that there has been no change in his baseline activity or health since the 2020 incident. He continues to travel, exercise, and drive his personal vehicle. He has been a commercial driver for many years and fully understands his responsibilities as a driver. The appellant submits that his medical documentation establishes that he is in good health and his medical condition does not interfere with his ability to safely drive a commercial motor vehicle.
14As noted, the 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 commercial motor vehicle safely. The appellant has a medical condition of cardiac arrythmia and an ICD. The Tribunal finds, however, that the respondent has not established on a balance of probabilities, that the appellant’s medical condition will significantly interfere with his ability to safely drive a commercial vehicle.
15The Tribunal acknowledges the CCMTA standards but also notes that they are not binding and that each case is to be assessed individually. In the circumstances of this case, the Tribunal declines to follow the guidelines. The most recent medical reports indicate that the appellant has been stable for close to two years, his ICD is functioning normally. There has been no recurrence of his arrythmias. The appellant’s cardiologist sees “no contraindication” to his returning to commercial driving. The appellant is committed to continuing the medical treatment prescribed and has demonstrated that he is aware of how he should respond if the ICD is activated. In all the circumstances, it has not been established on a balance of probabilities that the appellant suffers a condition likely to significantly interfere with his ability to safely operate a commercial vehicle.
ORDER:
16For 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 to Class G.
LICENCE APPEAL TRIBUNAL
________________________________
Dr. Dimitri Louvish, Member
________________________________
Laura Hodgson, Member
Released July 19TH, 2021