Licence Appeal Tribunal File Number: 14813/MED

In the matter of an 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 s. 32(5)(b)(i) of the Act.

Between:

Harold Kump

Appellant

and

Minister of Transportation

Respondent

DECISION

ADJUDICATOR: Dr. Erica Weinberg, Member

APPEARANCES:

For the Appellant: Harold Kump, Self-Represented

For the Respondent: Ian Sookram, Representative

HEARD by Teleconference: May 5, 2023 and May 24, 2023

OVERVIEW

1Harold Kump, the appellant, appeals the decision of the Minister of Transportation (the “Minister”, the “Ministry”), to downgrade his Class B driver’s licence under s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), effective November 7, 2022.

2Following the receipt of an unsolicited Medical Condition Report (“MCR”) dated August 23, 2022, the Registrar of Motor Vehicles (the “Registrar”) suspended the appellant’s driver’s licence, effective September 4, 2022. The MCR was sent to the Ministry as required under s. 203 of the Act.

3Following the receipt and review of additional medical documentation, the appellant’s Class G driver’s licence was reinstated on November 7, 2022.

4In this case, the Registrar acted pursuant to s. 47(1) of the Act, s. 14(1)(a) of O. Reg. 340/94 under the Act (the “Regulation”) and s. 14(2)(b) of the Regulation under the Act. Section 14(1)(a) of the Regulation states that a holder of a driver’s licence must not 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. Under s. 14(2)(b) of the Regulation, the Registrar or Minister may require a driver to provide satisfactory evidence that he or she is able to drive safely.

5Under the Act, the Minister is responsible for ensuring that commercial drivers are medically fit to drive commercial vehicles on the highway. Section 32(5)(b)(i) of the Act states that the Minister may 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.

6Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the decision or order of the Minister.

7The Minister takes the position that the appellant no longer meets the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”) for a commercial driver’s licence due to the medical condition of syncope. Section 14(2)(a) of the Regulation allows the Registrar or Minister to consider the CCMTA Standards when determining whether the requirements of s. 14(1) are met. The Tribunal may take the CCMTA Standards into consideration, although they are not binding requirements.

8The appellant appeals the downgrade of his Class B driver’s licence under s. 50(1) of the Act. He denies that his medical condition interferes with his ability to drive a commercial vehicle safely.

9Having considered all of the evidence, and for the reasons which follow, I find that the Minister has met the burden of establishing that the appellant’s medical condition of syncope is likely to significantly interfere with his ability to drive a commercial vehicle safely.

10Accordingly, I confirm the decision of the Minister to change the class of the appellant’s driver’s licence.

PRELIMINARY ISSUE

11The hearing of this appeal commenced on May 5, 2023. During the course of the hearing, the respondent’s representative brought to light a recent letter sent by them to the appellant, advising that they required more information regarding an additional medical condition of concern. Following a discussion, I agreed that an adjournment was appropriate. Fairness is paramount, and a balance between fairness and efficient and effective decision making could only be obtained by adjourning the hearing. We chose a mutually agreeable date and time for continuation of the hearing. Both parties submitted further disclosure within the time frame set out.

12Prior to the continuation of the hearing, the Ministry indicated by letter to the appellant that the additional medical condition was no longer a concern.

ISSUES

13The issue in dispute is whether the appellant suffers from a medical condition, namely syncope, that is likely to significantly interfere with his ability to drive a commercial vehicle safely.

14To resolve that issue, I will address the following questions:

i. Does the appellant suffer from syncope?

ii. Is the appellant’s medical condition, if any, likely to significantly interfere with his ability to drive a commercial Class B vehicle safely?

ANALYSIS

Does the appellant suffer from syncope?

15I find that the evidence presented at the hearing supports that the appellant suffers from syncope.

16The Minister’s position that the appellant has the medical condition of syncope is supported by Ministry forms and narrative letters completed by, or on behalf of, the appellant’s primary care physician, Dr. F. The originating MCR completed by Dr. F., indicated that the appellant suffered two episodes of loss of consciousness (“LOC”) in August 2022 and the etiology (cause) of the episodes was not yet determined. At that time, Dr. F. was questioning whether the episodes were syncope or seizure, and the appellant was to undergo a number of medical tests. Following the completion of the medical tests, and in the subsequent Ministry forms and narrative letters sent to the Ministry, Dr. F. referred to the August 2022 episodes as either “syncope/LOC” or “syncope”.

17The appellant does not deny that he suffered two episodes of LOC in August 2022, the first on Saturday August 20, 2022 and the second on Monday August 22, 2022. The CCMTA Standards defines syncope as a partial or complete loss of consciousness.

18I find that the Minister has established on a balance of probabilities that the appellant has the medical condition of syncope.

Is the appellant’s medical condition, if any, likely to significantly interfere with his ability to drive a commercial Class B vehicle safely?

19On appeal, the Minister has the burden of establishing, on a balance of probabilities, that the appellant’s medical condition is likely to significantly interfere with his ability to drive a vehicle of the applicable class safely. I find that the Minister has met its burden.

20I find on a balance of probabilities that the appellant’s medical condition of syncope is likely to significantly interfere with his ability to drive a commercial Class B vehicle safely.

21The appellant testified that, on Saturday August 20, 2022, he sprayed bleach on the basement shower and left. When he came back later, he washed the shower down and then continued to shower himself. After coming out of the shower, while or after drying his feet, he felt lightheaded/had a head rush and collapsed. He is unaware how long he suffered LOC. He stated that he neither put on the exhaust fan nor opened the window for ventilation.

22Two days later, while in the basement doing/sorting laundry one room away from the bathroom, the appellant felt lightheaded/had a head rush which was followed by a brief episode of LOC. As a precautionary measure he went to the local hospital after this episode of LOC.

23Chapter 19 of the CCMTA Standards (Syncope) indicates that syncope causes an episodic impairment of all the functions necessary for driving and, as such, compensation does not apply. Thus, the consequences of a driver suffering an episode of syncope while driving may be serious and the consequences of the driver of a commercial vehicle experiencing syncope even more so. Commercial drivers often drive under more adverse conditions and drive longer distances than drivers of non-commercial vehicles. Furthermore, should a crash occur, the consequences are much more likely to be serious given the gross weight of the vehicle involved. Holders of a Class B driver’s licence may drive any school-purposes bus having seats for more than 24 passengers and are also allowed to operate vehicles included in Classes C-G, but not motorcycles. The appellant’s regular job does not require a Class B licence however, he previously would drive a motor coach bus one to two times per week, mostly driving people or sports teams back and forth to sporting events in other cities.

24The CCMTA Standards’ guideline for assessing syncope, plus its syncope standard and corresponding waiting periods, are based on many factors including: whether the driver is a non-commercial or commercial driver; the number of syncopal episodes; type of syncope; position in which syncope occurs, syncope diagnosed with treatable, reversible, or avoidable triggers/precipitating factors; syncope due to documented/inducible tachyarrhythmias (abnormal heart rhythms with a fast rate); and unexplained syncope. Furthermore, the syncope standards mention that waiting periods may be modified based on individual factors such as length of any reliable warning symptom (prodrome).

25The Minister is of the opinion that the appellant suffered two episodes of “unexplained syncope” or “etiology (cause) unknown syncope” in August 2022.

26The respondent’s representative referred to:

i. the completed Seizures and Loss of Consciousness form (November 2022), where, in Section A (Syncope/LOC), Dr. F. checked off that “unexplained syncope” had occurred;

ii. Dr. F.’s narrative letter of January 25, 2023, where Dr. F. states that the cause of these episodes remains unknown; and

iii. the completed Cardiovascular Assessment form (May 2023), where, in Part 4 – Results of Investigations or Medical History syncope/LOC is checked off and the answer to “Has the underlying cause been treated or resolved?” is “cause of syncope unknown, no further episodes since”.

27Furthermore, the respondent’s representative referred to Chapter 19.6.10 of the CCMTA Standards (Single or recurrent unexplained, single or recurrent atypical vasovagal, or recurrent typical vasovagal syncope – Commercial drivers) which indicates that commercial drivers are eligible for a licence if it has been at least 12 months since the last episode of syncope and the conditions for maintaining a licence are met.

28The appellant argues that both he and Dr. F. believe that his episodes were caused by inhalation of bleach fumes (“bleach is the guilty party”). He adamantly stated that he had “no doubt that the [bleach] fumes would have accessed the rest of the rooms in the basement”. Furthermore, he emphasized that he has a “clean bill of health” as the medical tests show “nothing wrong”. He stated he is in good condition (both body and mind), eats well, does not “abuse his body”, visits a Holistic practitioner every three months and feels fit to drive a Class B vehicle.

29I prefer the opinion of Dr. F. over that of the appellant, and I find that the appellant’s syncope is “unexplained”. Dr. F. was aware of the appellant’s bleach theory. Her November 2022 form and January 2023 letter indicate that it was the appellant, himself, who felt the episodes were due to accidental bleach inhalation. Dr. F. never wrote that she, herself, thought the syncope was caused by bleach fumes. Nowhere on any completed form did Dr. F. check off that the appellant’s episodes were due to “situational syncope with an avoidable trigger”, “syncope with a reversible cause” or “syncope due to other condition(s)”. The appellant presented no medical evidence that the syncope was caused by bleach. Following the completion and review of the appellant’s medical testing and being aware of the appellant’s bleach theory, Dr. F.’s written conclusions are consistently silent on her view of bleach causation and are repeatedly and consistently of the view that the appellant’s syncope was unexplained/cause unknown. Furthermore, the appellant testified that he did not experience LOC when he likely went down to the basement between Saturday and Monday. The appellant was unable to answer whether he told the emergency room physician his bleach theory, despite having already discussed this theory with both his son and a neighbour.

30I find that the CCMTA Standards are reasonable and should be followed in these circumstances. Experiencing an episode of syncope while driving a commercial vehicle can have catastrophic consequences. It is reasonable in the case of unexplained/cause unknown syncope, where the syncope cannot be successfully treated, to refrain from driving for a reasonable period in order to ensure that no further episodes are likely. The appellant described only a short warning period prior to his syncopal episodes and may have an insufficient prodrome to pilot his commercial vehicle to the roadside before losing consciousness. I accept that one year is a reasonable waiting period in the appellant’s circumstance.

31Based on the totality of the above, I find on a balance of probabilities, that the appellant’s medical condition is likely to significantly interfere with his ability to drive a commercial vehicle safely.

Conclusion

32After a careful consideration of the totality of the evidence before me, and based on the above, I find that the Minister has discharged its onus of establishing on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to drive a commercial vehicle safely.

ORDER

33For the reasons set out above, pursuant to subsection 50(2) of the HTA, the Minister’s decision to change the class of the appellant’s driver’s licence is confirmed.