Tribunals Ontario

Licence Appeal Tribunal

Licence Appeal Tribunal File Number: 14984/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 a class of licence pursuant to s. 32(5)(b)(i) of the Act.

Between:

Samantha Vollick-Quinlan

Appellant

And

Minister of Transportation

Respondent

DECISION AND ORDER

ADJUDICATORS: Dr. Peter Savage, Member Jeffery Campbell, Vice-Chair

APPEARANCES:

For the Appellant: Samantha Vollick-Quinlan, Appellant Andrew Graham, Counsel

For the Respondent: Stephen Gootenboer, Agent

Held by teleconference: October 6, 2023

REASONS FOR DECISION AND ORDER

OVERVIEW

1Samantha Vollick-Quinlan, the appellant, appeals the decision of the respondent Minister of Transportation (the “Minister”) to change the class of the appellant’s driver’s licence from a Class F licence to a Class G licence. The Minister advised the appellant of the change of class of the licence by way of letter dated May 19, 2023.

2The Minister takes the position that the appellant is suffering from a medical condition that is likely to significantly interfere with her ability to drive a Class F motor vehicle safely. The basis for the Minister’s position is that the appellant has a heart condition for which an implantable cardioverter-defibrillator (“ICD”) was implanted as a secondary prophylaxis for ventricular fibrillation.

3The Minister has the authority under s. 32(5)(b)(i) of the Act to change the class of a person’s driver’s licence. Section 14(1)(a) of O. Reg. 340/94 under the Act (the “Regulation”) states 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 safely drive a motor vehicle of the applicable class. Under 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 safely.

4The appellant appeals the change of licence class under s. 50(1) of the Act.

5Pursuant to section 50(2) of the Act, after a hearing, the Tribunal may confirm, modify or set aside the decision or order of the Registrar.

ISSUES

6The issue in this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with her ability to drive a motor vehicle of the applicable class safely.

7To resolve that issue, we will address the following questions:

1. Does the appellant suffer from medical condition, namely an implantable cardioverter-defibrillator (“ICD”) implanted as a secondary prophylaxis for sustained ventricular fibrillation?

2. If the appellant does suffer from the above condition, is that condition likely to significantly interfere with her ability to drive a motor vehicle of applicable class safely?

RESULT

8For the reasons set out below, pursuant to subsection 50(2) of the Act, we set aside the Minister’s decision to change the appellant’s driver’s licence.

ANALYSIS

The appellant suffers from a medical condition

9We find that the appellant suffers from the medical condition of ICD Implant.

10The evidence presented at the hearing establishes that the appellant suffers from a medical condition, namely, an implantable cardioverter-defibrillator (“ICD”) implanted as a secondary prophylaxis for sustained ventricular fibrillation (“medical condition”).

11In her Notice of Appeal, the appellant does not deny that she suffers from the medical condition.

12In support of its allegation that the appellant suffers from the medical condition, the Minister relies on a Cardiovascular Assessment by cardiac electrophysiologist Dr. Habib Khan dated July 12, 2021 (“CA 1”) and a second Cardiovascular Assessment by Dr. Khan dated July 26, 2022 (“CA 2”). In both CA 1 and CA 2, Dr. Khan advises that the appellant has experienced cardiac arrest and has undergone an ICD implant. The respondent also relies on a Medical Report submitted by the appellant dated April 27, 2023 in which she advises that she does have a history of heart disease and does have an ICD implant.

Conclusion

13Based on the evidence, we conclude that the Appellant suffers from the medical condition.

The appellant’s medical condition of ICD Implant will not Interfere with her ability to drive a motor vehicle of the applicable class safely

14We find that appellant’s condition of ICD implant is not likely to affect her ability to drive a motor vehicle of the applicable class safely.

15The appellant is employed as a paramedic in London, Ontario. On June 12, 2020, the appellant experienced a cardiac arrest while sleeping at her station. She self reported this condition to the Ministry of Transportation. Two weeks after the cardiac arrest, she had the ICD implanted in order to correct the ventricular fibrillation.

16In response to the appellant’s self-reporting, the respondent sent letters to the appellant dated September 10, 2021 and August 5, 2022 advising that she is approved for her Class F licence. The respondent subsequently reversed that decision and changed her Class F licence to a Class G licence by letter dated May 19, 2023.

17In support of their decision to change the appellant’s Class F licence, the Minister relies on the CCMTA Standard 3.6.32, which states that commercial drivers are not eligible for a licence if they have had an ICD implanted as a secondary prophylaxis for ventricular tachycardia (“VT”) or ventricular fibrillation (“VF”).

18The Tribunal is entitled to take the Canadian Council of Motor Transport Administrators (“CCMTA”) Standards into consideration but is not bound by them. The overriding consideration in this appeal is whether the Minister has proven, on a balance of probabilities, that the appellant’s condition is likely to significantly interfere with her ability to drive a motor vehicle of the applicable class safely. While the CCMTA Standards are well-reasoned and helpful, every case must be considered on its own facts.

19The appellant relies on the CA 2 in which Dr. Khan advises that the annual risk of sudden incapacitation [due to the ICD] is felt to be 1% or less. Dr. Khan also advised that the arrythmia is controlled and [the appellant] has had no arrythmias since the ICD implant.

20The appellant also relies on a Consultation Report of cardiac electrophysiologist, Dr. George Klein dated September 16, 2022 in which Dr. Klein advised that the appellant’s cardiac arrest of June 2020 is of unknown etiology. He went on to advise that, “In general, people who have had a cardiac arrest of unknown etiology and who have had entirely negative testing do not have any recurrences. She seems to fit into this category.” Dr. Klein also opined that “At this point there would be no restrictions for her to work…”.

21In a Final Report dated July 20, 2023, Dr. Klein reiterated that the appellant falls into a category of low risk of recurrence of her cardiac arrest or arrythmia. He advised that the percentage of this risk is probably in the range of low single digits.

22The appellant submits that while the CCMTA Standards state that commercial drivers are ineligible for a licence if they have undergone an ICD implant, the Tribunal should consider the directives of the Canadian Medical Association, which state that “ICDs may sometimes be implanted in low-risk patients. Individual cases may be made for allowing a commercial driver to continue driving with an ICD provided the annual risk of sudden incapacitation is felt to be 1% or less.”

23We agree with the appellant. This is a case that considerations other than those of the CCMTA should be taken into account.

24First, the appellant has been, and continues to be, under the care of two electrophysiologist cardiologists. Dr. Khan estimated that the appellant’s risk of the sudden incapacitation is less than 1%, while Dr. Klein places the risk in the low single digits. Dr. Klein, knowing of her vocation and its requirements, advises that she should have no work restrictions.

25Secondly, the appellant has not had an episode since the implanting of the ICD of 2020. She drove commercially with no occurrence until the suspension of May 19, 2023. She also has driven her personal vehicle without occurrence from the date of the implant of the ICD until the present.

26Thirdly, the appellant has been forthcoming with the Registrar, and compliant with their requirements.

27Fourth, no physician has ever submitted an unsolicited Medical Condition Report declaring her unfit to drive.

Conclusion

28We find that, given the above, this is an optimal case in which the standards of the CMA should be given consideration over those of the CCMTA. We find that there the risks of an occurrence due to the ICD are so minimal that it is unlikely that the ICD implant will significantly interfere with the appellant’s ability to drive a vehicle safely. For these reasons, we set aside the suspension of the appellant’s class F licence.

Costs

29At the hearing, the appellant requested a costs award submitting that the Minister acted unreasonably in suspending the appellant’s class F licence. The appellant submits that the respondent arbitrarily relied on Part 2 of the CCMTA (CCMTA Medical Fitness for Drivers) rather than taking into account the considerations of Part 1, particularly chapter 4 which articulates a more wholistic rather than diagnostic approach to the standards.

30Rule 19.1 of the Common Rules of the Licence Appeal Tribunal states that where a party believes that another party in a proceeding has acted unreasonably, frivolously, vexatiously, or in bad faith, that party may make a request to the Tribunal for costs.

31We do not agree that the Minister acted unreasonably by suspending the appellant’s licence based upon the CCMTA Standard 3.6.32. While the neither the Minister nor the Tribunal are bound by the CCMTA Standards, it is wholly reasonable for the Minister to rely upon these standards when determining the recommendations of a driver’s licence vis a vis the medical condition of the licence holder. While Part 1 of the CCMTA advises that regulatory bodies take into account individual risks, it remained in the Minister’s jurisdiction rely solely on Part 2.

32No costs will be awarded.

ORDER

33For the reasons set out above, pursuant to subsection 50(2) of the Act, we set aside the Registrar’s decision to suspend the appellant’s class F Licence.

34No costs will be awarded.

Dr. Peter Savage, Member

Jeffery Campbell, Vice Chair