Licence Appeal Tribunal File Number: 15126/MED

In the matter of an appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”), from a decision of the Registrar of Motor Vehicles to suspend a licence pursuant to Section 47(1) of the Act.

Between:

Ian Smart

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Dr. Erica Weinberg

APPEARANCES:

For the Appellant:

Ian Smart, Appellant Jami Sanftleben, Paralegal

For the Respondent:

Stephen Grootenboer, Representative

HEARD by teleconference: October 5, 2023

OVERVIEW

1Ian Smart (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (“Registrar”) to suspend their Class GM licence under s. 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) after the Registrar received a report from a treating health care provider that the appellant suffers from a medical condition that may affect their safety to drive.

2The Registrar has the authority under s. 47(1)(g) of the Act to suspend or cancel a driver’s licence for any sufficient reason. 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 mental, emotional, nervous or physical condition or disability likely to significantly interfere with their ability to safely drive a motor vehicle of the applicable class safely. Under s. 14(2)(b) of the Regulation, the Minister of Transportation may require a driver to provide satisfactory evidence that they are able to drive safely.

3The Registrar takes the position that the appellant suffers from a medical condition, namely Implantable Cardioverter/Defibrillator (“ICD”), that is likely to significantly interfere with their ability to drive safely and that this provides sufficient reason to suspend their licence under s. 47(1)(g) of the Act.

4The appellant appeals the suspension under s. 50(1) of the Act. They acknowledge that they have an ICD device implanted for a heart (cardiac) condition but deny that they suffer from a medical condition which interferes with their ability to drive safely.

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 their ability to drive a motor vehicle safely.

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

i. Does the appellant have an ICD?

ii. If so, is this likely to significantly interfere with their ability to drive a motor vehicle safely?

8The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”

RESULT

9Having considered all the evidence and submissions and for the reasons that follow, I find that the Registrar has satisfied its burden to establish that the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive a motor vehicle safely and I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Does the appellant have an ICD?

10During the course of the hearing, the Registrar clarified its position that the appellant’s driver’s licence should be suspended not because of the existence of the ICD itself, but because the appellant’s ICD caused an associated impaired level of consciousness in the appellant or a disabling effect that could not be compensated by the appellant while driving.

11The evidence presented at the hearing establishes, on a balance of probabilities, the Registrar’s allegation that the appellant has an ICD.

12In mid-June 2023, likely on June 17, 2023, the appellant suffered an event (“event”), as described below, during which it appears their ICD activated or delivered a shock to their heart. The morning following the incident, the appellant went to the hospital to be examined.

13The Registrar’s position is supported by medical reports completed by Drs. P. and Y.

14In a June 20, 2023 Medical Condition Report, hospital cardiologist, Dr. P., indicated that the appellant suffered “Sudden Incapacitation” due to “VT-ICD shock.”

15In the completed Cardiovascular Assessment form dated September 5, 2023, the appellant’s family physician, Dr. Y., indicated that the appellant: has VT; had an ICD implanted more than 12 months ago; had the ICD implanted for secondary prophylaxis; had hemodynamically unstable VT less than six months ago; and had an ICD shock or device intervention that impaired level of consciousness less than six months ago.

16As a licenced and duly qualified physician in the province of Ontario, I know that “VT” in the context of this hearing refers to ventricular tachycardia, which is an abnormal rhythm (arrhythmia) of the heart’s lower chambers, known as ventricles, caused by irregular electrical signals. I also know that an ICD can be implanted for secondary prophylaxis in patients suffering from serious or malignant arrhythmias (such as VT) that do not respond readily to medical treatment. When implanted for secondary prophylaxis, ICDs are implanted to prevent sudden cardiac death by activating or delivering a shock to restore normal cardiac rhythm. I take notice of these facts pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22.

17The appellant acknowledged they have an ICD. The appellant stated that in May 2022: they were hospitalized for four weeks; that medical staff determined they suffered from VT likely due to congestive heart failure; that they started medical therapy for their cardiac condition; and they had an ICD implanted.

18I find that the Registrar has established on a balance of probabilities that the appellant has an ICD.

Is the appellant’s medical condition likely to significantly interfere with their ability to drive a motor vehicle safely?

19I find that the Registrar has proven on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with their ability to drive a motor vehicle safely.

20The Registrar’s representative argues that sudden incapacitation due to an ICD activating secondary to VT can and will significantly interfere with a driver’s safe operation of a motor vehicle. They further argue that in order to consider reinstatement of the appellant’s driver’s licence, the Registrar requires confirmation that the ICD has delivered no shock or anti-tachycardiac pacing (“ATP”) therapy and that at least six months have elapsed since the last episode of VT. In addition, they referred to the completed Cardiovascular Assessment form and highlighted Dr. Y.’s response to the question, “Is the patient’s arrhythmia successfully treated or controlled?” as: “Pending six-month pacemaker interrogation to ensure no further events”.

21Section 14(2)(a) of the Regulation allows the Registrar to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (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 on the Tribunal.

22The Registrar relies on the CCMTA Standards, in particular Chapter 3.6.29 [ICD therapy (shock or ATP) has been delivered – Non-commercial drivers] and Chapter 3.6.10 (Hemodynamically unstable VT – Non-commercial drivers). Chapter 3.6.29 of the CCMTA Standards states that “this standard applies to non-commercial drivers where ICD therapy (shock or ATP) has been delivered and there is an associated impaired level of consciousness, or the therapy delivered by the device was disabling”. The standard further states that non-commercial drivers are eligible for a licence if it has been six months or more since the event, and the standard for the underlying cardiovascular condition are met. Chapter 3.6.10 of the CCMTA Standards states that non-commercial drivers are eligible for a licence if it has been six months since the last episode, and the underlying condition has been successfully treated.

23The appellant acknowledged that in mid-June 2023 they had an event in which their ICD device activated or therapy was delivered and they had an associated impaired level of consciousness or the therapy delivered by the device was disabling.

24The appellant testified that they overexerted themselves on the day of the event. They indicated that in the morning they moved boxes into their new home and did a workout. In the afternoon they played golf with a neighbour on a hilly course and walked the course. Following dinner, at around 9:00 p.m., the appellant lifted their golf bag to place it in their neighbour’s car and they “went to the ground”. When the appellant got up, they instructed their neighbour to take them home. The appellant stated that they went to the hospital the following morning, they remained in hospital for three days and it was determined that their ICD had activated/therapy was delivered for VT.

25Since the event, the appellant has attended both their ICD Clinic (about two months ago) and their cardiologist twice (last appointment September 22, 2023). The appellant testified that at the ICD Clinic appointment, they were told that their ICD device had not delivered any new shocks since June 2023 and at their first cardiology appointment post-event, their cardiologist increased the dosage of two of their four cardiac medications.

26The appellant argues that they do not have a medical condition likely to significantly interfere with their ability to drive a motor vehicle safely. They rely on: their clean driving history; their respect and conscientiousness towards the rules of the road; their recent change in diet and lifestyle including hiring a personal trainer and purchasing a home blood pressure monitor; the change in their cardiac medications; that they are sure that overexertion caused the event; and that Dr. Y. is in support of early re-licencing because Dr. Y. completed the Cardiovascular Assessment form. In addition, the appellant indicated their plan going forward with respect to safety to drive which includes: making a mental checklist of signs or symptoms before driving; to cease driving should they develop symptoms or feel they are not safe to drive; shortening the length of drives by taking breaks for food/water/walking/relaxing; and communicating with their employer should they feel they are unsafe to drive on any particular day.

27While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

28Although I am not bound by the CCMTA Standards, I find them to be reasonable. When ICD therapy, such as a shock, has been delivered and there is an associated impaired level of consciousness, or the therapy delivered by the device is disabling, there is an episodic impairment causing sudden incapacitation and affecting all functions necessary for driving. A driver cannot compensate for this.

29Given the evidence, I am persuaded to apply the CCMTA Standards in the circumstances of this case.

30I accept the appellant’s argument that they are a conscientious driver and follow the rules of the road. However, following the rules of the road while driving is not at issue. The issue I have to determine is whether the appellant has a medical condition which is likely to significantly interfere with their ability to drive a motor vehicle safely.

31I acknowledge that the appellant has educated themselves and modified some lifestyle factors since the event, plus has a driving safety plan, including a mental checklist of potential symptoms or signs to be cognisant of.

32However, the appellant denied any warning signs or symptoms prior to their collapse when their ICD shocked them. I agree with the appellant’s testimony, when questioned by the respondent, that should they have been driving when their ICD device activated, the results could have been catastrophic.

33I agree with the Registrar’s representative that nowhere in either Chapter 3.6.29 or Chapter 3.6.10 of the CCMTA Standards is there mention of early re-licencing. Chapter 3 of the CCMTA Standards states that the rationale behind the cardiovascular waiting times is based on recommendations by the Canadian Cardiovascular Society and is in an effort to mitigate the risk of an episodic impairment of functional ability to drive.

34I acknowledge that it has been more than three and one-half months since the appellant’s ICD event in mid-June 2023.

35I find that the medical evidence provided by Dr. Y. in the Cardiovascular Assessment form, indicates, on a balance of probabilities, that Dr. Y. does not support the reinstatement of the appellant’s driver’s licence at this time. In Question 5 of Section C of the form (Is the patient’s arrhythmia successfully treated or controlled?), Dr. Y. answered “No” and hand wrote “TBD” (to be determined). Furthermore, as already stated, Dr. Y. also wrote, “Pending 6-month pacemaker interrogation to ensure no further events”. Pending means awaiting a decision.

36In addition, since the event, the appellant is on more frequent follow-up with the ICD Clinic (i.e., every 3 months as opposed to every 6 months) and it appears they may be on more frequent follow-up with their cardiologist (previously every 3-4 months; third follow-up appointment scheduled for November 2023).

37Furthermore, there is no evidence before me that any of the appellant’s treating specialists support early re-licencing.

38Based on the above, I find on a balance of probabilities, that an insufficient length of time has passed since the appellant’s event in mid-June 2023. I accept the respondent’s submission that further time and medical information should be submitted is reasonable keeping in mind public road safety.

39I am satisfied on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with their ability to drive safely.

Conclusion

40I find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely an ICD device which recently activated or therapy was delivered, that is likely to significantly interfere with their ability to drive a motor vehicle safely.

ORDER

41For the reasons set out above, pursuant to subsection 50(2) of the Act, I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

Erica Weinberg

Adjudicator