An 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 to suspend a licence pursuant to Section 47(1) of the Act.
Between:
Ian Rosen
Appellant
-and-
Registrar of Motor Vehicles
Respondent
DECISION & ORDER
ADJUDICATOR: Dr. Dimitri Louvish, M.D., Member Raymond C. Ramdayal, Member
APPEARANCES:
For the Appellant: Ian Rosen, Self-represented
For the Respondent: Sanjay Kapur, Agent
Heard by teleconference: August 15, 2022
Background
1By letter dated August 15, 2022, the Registrar of Motor Vehicles (the “respondent”) advised Ian Rosen (the “appellant”) that his licence would remain suspended as stated in previous letters sent to him. The respondent further advised the appellant that all previous letters should be disregarded as the August 15, 2022 letter contains the most up-to-date information.
2The appellant appeals the decision of the respondent to suspend his driver’s licence for medical reasons. The appellant’s reported conditions are hemodynamically unstable VT and implantable cardioverter/defibrillator.
3As a prerequisite for licence reinstatement, the respondent requires that the appellant take the aforementioned letter to his treating physician, specialist or nurse practitioner and have them provide the following information to the Ministry of Transportation (MTO) Driver Medical Review office:
a. Confirmation that it has been at least six months since the last episode of hemodynamically unstable ventricular tachycardia.
b. Confirmation that the underlying cause of his hemodynamically unstable ventricular tachycardia has been successfully treated.
AND
c. Confirmation that it has been six months since the last shock or intervention by the device
4The decision to suspend the appellant’s licence was made after the respondent received an unsolicited medical report, marked as Exhibit #3 at the hearing. The report indicates that the appellant suffers from heart disease with pre-syncope/syncope/arrhythmia. Furthermore, it confirms that the appellant received an implantable cardioverter-defibrillator (ICD) shock on April 30, 2022.
5As a result, the respondent issued a letter to the appellant identifying the medical conditions they are aware of and instructions on next steps should he wish to have his licence reinstated.
Issue
6The issue to be determined is whether the appellant’s medical condition, if any, is likely to significantly interfere with his ability to drive a motor vehicle safely.
Result
7For the reasons set out below, we confirm the respondent’s decision.
Law
8The respondent has the power under s. 47(1) of the HTA to suspend or cancel a driver’s licence for any of the 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).”
9One 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 that is 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:
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 safely of the applicable class safely;
10Section 14(2)(a) of the Regulation allows the Minister of Transportation (“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 take the CCMTA Standards into consideration, although they are not binding. In this matter, the Registrar is relying on the CCMTA standard relating cardiovascular disease.
11Under s. 14(2)(b) of the Regulation, the Minister may also require a driver to provide satisfactory evidence that he or she is able to drive safely. The Tribunal may consider whether a driver has complied with such a request.
12The respondent has the burden of establishing the ground for suspending the 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 respondent.
Evidence and Analysis
13The appellant submitted a Cardiovascular Assessment form in response to the respondent’s request in a previous letter dated May 5, 2022. This provided further information about his condition and current medical status. The appellant testified that he was unaware of the ICD shock he received on April 30, 2022 and did not experience any side effects that a shock had occurred. In fact, he only learned about the ICD shock during a routine visit with his medical practitioner when the information logged by the device was downloaded at the doctor’s office.
14The medical assessment form, dated June 8, 2022, confirms that the appellant did not experience any loss of consciousness as a result of the ICD shock. It also confirmed that it has been less than 6 months since he experienced hemodynamically unstable ventricular tachycardia. The medical assessment form also states that the appellant has adhered to his recommended treatment regimen.
15During his testimony, the appellant did not dispute that there was an ICD shock administered on April 30, 2022. However, he was adamant that he was unaware and never once felt the machine. He also explained that he was doing nothing out of the ordinary that evening and was watching television at the time of the shock. He also did not experience any chest pain or palpitations.
16The appellant testified that he was diagnosed with heart disease in 2001 and has had 2 heart valve repairs. He does not consider himself sick and states that he never misses taking his medication. At his May 4, 2022 appointment with his doctor, he was feeling well and did not have any concerns. The news that he received an ICD shock a few days prior came as a surprise. This is not the first time the appellant has received an appropriate shock from the ICD device. He received appropriate shocks on three other occasions, all of which he remained asymptomatic.
17It is the appellant’s position that all of his prior visits to doctors over the past two years indicate stability and/or improvement of his cardiac condition. However, none of the reports submitted as evidence satisfies the respondent’s concerns.
18The respondent argues that not enough time has elapsed since the appellant’s last ICD shock on April 30, 2022. They do not dispute the fact that the appellant is asymptomatic during these shock events, however, it does not change the fact that an ICD shock was administered, regardless of the appellant’s reaction to it. They testify that the appellant’s licence was suspended for an appropriate reason.
19The respondent also relied on the Canadian Council of Motor Transport Administrators (CCMTA) National Safety Code, Standard 6: Determining Driver Fitness in Canada. More specifically, it is noted in section 3.6.10 for Hemodynamically unstable VT, that the standard for licence eligibility of non-commercial drivers is that it has been 6 months since the last episode and that the underlying condition has been medically treated.
Appellant’s Witness (Annegail Rosen, Wife)
20Ms. Rosen testified on behalf of the appellant. She states that the respondent does not have sufficient proof that the appellant is hemodynamically unstable. She also corroborated the appellant’s testimony that he was at home watching TV at the time of the ICD shock.
21Ms. Rosen’s testimony did not provide us with any information that would change our decision to confirm the respondent’s position to suspend her husband’s driver’s licence.
22The respondent’s position is that the appellant suffers from a medical condition that interferes with his ability to operate a motor vehicle safely. It asserts that it has not received the necessary information to consider reinstatement of his driver’s licence. Once the respondent receives new information, it will be submitted to their Medical Review Team to consider a licence reinstatement.
23In considering this case there are two elements that need to be satisfied:
a. Does the appellant have a medical condition; and,
b. Will that condition significantly interfere with his ability to drive safely.
Does the appellant have a medical condition?
24At the hearing, we received evidence from the medical reports that the appellant has an ICD device and has been shocked in the past in order to restore normal sinus rhythm. We also received evidence clearly stating the appellant’s medical condition has been confirmed by more than one medical practitioner.
25The appellant receives medication for this condition, and we accept the appellant’s submission that he is compliant with this prescribed treatment. However, he continues to experience medical issues that necessitate ICD shocks. The appellant also does not dispute the findings in the medical reports.
26There is an abundance of evidence that the appellant does have a condition. The appellant’s admission that he has suffered from heart disease since 2001 corroborates his diagnosis and supports a finding that he has a medical condition capable of satisfying the first element of the test.
Is this condition likely to significantly interfere with his ability to drive safely?
27The appellant submits that he should be granted his licence due to the fact that he feels well and does not experience adverse side effects as a result of ICD shocks. He also asks that we take into consideration the fact that he remains compliant with his treatment regimen.
28The appellant has expressed frustration in the past with regards to the suspension of his driver’s licence. We acknowledge his frustration, however, in the absence of his doctor (cardiologist) supporting licence reinstatement, we are unable to reinstate his licence. Although his medical team is not increasing his medication, there was an indication that they may make changes to the device settings so that it is more sensitive.
29The respondent submits that the appellant’s medical condition is likely to significantly interfere with his ability to drive safely. We considered this and the fact that he has received ICD shocks in the past. The medical reports suggest that these interventions may have thankfully saved the appellant’s life. Moreover, there has not been enough time and/or a medical opinion from the appellant’s doctor that it is safe for him to drive.
Conclusion
30We find that the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive safely. The fact that it has been less than six months since his last episode of hemodynamically unstable ventricular tachycardia, and shock or intervention by the device gives us pause. In addition to this, the appellant is currently receiving treatment for his condition, but it is yet to be seen how successful it will be in stabilizing his ventricular tachycardia.
31Without sufficient time elapsed and medical opinion, we find that we cannot support the reinstatement of the appellant’s driver’s licence.
32In the end, we find that the respondent has demonstrated on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to drive a car safely.
33Based on a careful consideration of all the evidence before us, we are satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely. Therefore, the respondent’s decision is confirmed.
WE ORDER AS FOLLOWS:
34For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Registrar’s decision to suspend the appellant’s driver licence is confirmed.
LICENCE APPEAL TRIBUNAL
_____________________________
Dr. Dimitri Louvish, M.D., Member
____________________________
Raymond C. Ramdayal, Member
Released: September 22, 2022