Krzeminski v. Minister of Transportation, 2022 CanLII 81530

Krzeminski v. Minister of Transportation, 2022 ONLAT-HTA MED 14151

Date: 2022-08-30

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:

Zbigniew Krzeminski Appellant

and

Minister of Transportation Respondent

DECISION AND ORDER

ADJUDICATOR: Dr. Peter Savage, Member

APPEARANCES:

For the Appellant: Zbigniew Krzeminski

For the Respondent: Sanjay Kapur

Heard by Teleconference: August 24, 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 decision of the respondent, the Minister of Transportation (the “Minister”), to downgrade the appellant’s class DZ commercial driver’s licence to a class G licence. The reason for the downgrade from DZ to G was that the applicant suffers from heart disease.

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

4Section 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 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.

9To answer that issue, I will address the following questions:

i. Does the appellant suffer from a medical condition?

ii. If the appellant suffers from a medical condition, is it likely to significantly interfere with his ability to drive a class DZ vehicle safely?

10As a preliminary point, the appellant’s first language is Polish and while his English is quite good, he was assisted by his wife Brenslawa Krzeminski as a support person and a language resource throughout the hearing. I am satisfied that the appellant was able to communicate clearly and effectively at the hearing and that the hearing was conducted fairly.

D. THE EVIDENCE and ANALYSIS

i. DOES THE APPELLANT HAVE A MEDICAL CONDITION?

11The appellant had a serious heart attack and respiratory arrest in 2012 and following treatment his commercial licence was maintained on the condition that he (or someone else on his behalf) forward regular medical reports to the Minister. On April 22, 2022, the Minister requested an updated medical assessment.

12The appellant’s family doctor completed a cardiac questionnaire and the Ministry of Transportation’s medical report and they were returned to the Minister. These reports indicate the appellant suffers from diabetes, obstructive sleep apnea, severe lumbar disc disease as well as heart disease. The cardiac questionnaire indicates that the appellant has valvular heart disease as well as atrial fibrillation coronary artery disease and congestive heart failure. The family doctor noted that the New York Heart Association Classification (NYHA) was 2. “Section 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S. 22 allows a tribunal to take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge. As a medical doctor licenced to practice medicine in the province of Ontario, I am aware that the NYHA score is a method doctors use to classify patients heart failure according to their symptoms. Class 1 indicates no limitation of physical activity and ordinary activity does not cause fatigue palpitations or shortness of breath. Class 2 indicates slight limitation of physical activity and comfortable at rest but fatigue palpitations and shortness of breath with mild activity. Class 3 and 4 have more symptoms physical symptoms at rest or associated with any level of activity.

13On June 9, 2022, the Minister sent a letter to the appellant stating his commercial licence was downgraded to a G licence and the licence would remain a G until the appellant showed proof that his condition had improved, and his NYHA score was a 1.

14On June 21, 2022, the appellant was reviewed by cardiologists at the Hamilton General Hospital and the report is appended to the Minister’s submission. The report indicates among other things there is congestive heart failure with moderate tricuspid regurgitation. The report stated the NYHA score was 2. The report also stated that the medical treatment had been maximized.

15The appellant did not deny having several forms of heart disease but felt that his health was stable and under control and his doctors had told him he was doing well. He felt he was safe to drive commercially.

16The Registrar pointed out that the medical evidence and the appellant’s testimony confirmed the diagnosis of heart disease.

17Based on the medical evidence of the family doctor, the cardiologist and the testimony of the appellant himself, l find that appellant has a medical condition, namely, valvular heart disease resulting in congestive heart failure.

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

18The 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.

19The Minister made the following submissions with respect to how the appellant’s condition affects the appellant’s ability to drive:

i. The Minister pointed out that the Ministry of Transportation must be proactive and there is a greater need for safety in licencing commercial drivers.

ii. The Minister reviewed the CCMTA section on the dangers of commercial driving associated with drivers with heart disease. The CCMTA points out certain conditions can produce episodic loss of consciousness. Valvular heart disease is one 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 CCMTA section 3.6.37 recommends for commercial drivers with valvular heart disease to have a NYHA score of 1.

iii. Both the family doctor and the cardiologist classified the appellant as a NYHA classification of 2.

iv. The Minister pointed out the appellant had a number of types of heart disease including arrhythmia, hypertension, coronary artery disease and valvular heart disease causing congestive heart failure. All of these types of heart disease raise concern; however, the commercial license downgrade focused on the valvular heart disease.

v. 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.

vi. Neither the family doctor nor the specialist have recommended reinstatement of the commercial licence.

20The 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 they are not binding, they can be persuasive.

21The appellant’s position was that his driving record is good and although he has heart disease, he is safe to drive a commercial vehicle.

22In support of his position, the appellant argues:

A. He was put on medication for his heart disease and takes this medication regularly.

B. His family doctor and specialist say he is doing well.

C. His medical team has not recommended surgery for his valvular disease.

D. He feels his hypertension, arrhythmia, coronary artery disease, diabetes, spinal disease, chronic obstructive pulmonary disease as well as his valvular heart disease and congestive heart failure are all well controlled and his doctors are in error when they classify him as NYHA 2.

E. He can walk upstairs without being short of breath but admits his back condition prevents him from walking any distance.

F. His plans for commercial driving only include driving small busses and vans taking people to and from nursing homes or special events and would include a minimum of loading and unloading.

G. He has a perfect driving record.

H. He drives his SUV all the time and the day prior to the hearing, he drove his car to Toronto with no difficulty.

23The appellant testified he is a responsible adult, a safe driver, and that in his opinion, his condition is stable and symptom free and his commercial licence should be restored.

24The appellant understood the NYHA classification but disagreed with his physicians’ assessment of his heart failure. He felt he should be classified as NYHA 1 and his commercial licence should be restored.

25The evidence supports the Minister’s submissions. The appellant has several medical conditions and has received excellent medical treatment from his medical team. He continues to follow medical advice and his doctors have said he is doing well. The medical report of June 2022 indicates his medications are optimized and there is no room for upward titration. Despite this excellent medical care, his two medical doctors independently find the appellant is NYHA classification 2. I find, on a balance of probabilities, that the appellant’s valvular heart disease is likely to interfere with his ability to drive a commercial vehicle safely. A review of the evidence and the appellant’s submissions shows that he has significant health issues. 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. I am of the view that the CCMTA recommendation is a well-reasoned and safe standard and should be followed in this case given its circumstances and the risk involved

ORDER

26For 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.