Licence Appeal Tribunal File Number: 16304/MED

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 Minister of Transportation to downgrade the class of licence pursuant to Section 32(5)(b)(i) of the Act.

Between:

Constantinos Tsourapis

Appellant

and

Minister of Transportation

Respondent

DECISION

ADJUDICATORS:

Dr. Kailey Minnings, M.D.

Rebecca Hines

APPEARANCES:

For the Appellant:

Jami Sanftleben, Paralegal

For the Respondent:

Sharon Nelson, Agent

Heard by Teleconference:

October 30, 2024

1Constantinos Tsourapis (the “appellant”) appeals from a decision of the Minister of Transportation (the “respondent”) to downgrade his driver’s licence from a commercial Class “B” to a “G” licence, effective September 16, 2024, pursuant to s. 32(5)(b)(i) of the Act.

2The respondent claims that the appellant suffers from a medical condition, namely implantable cardioverter defibrillator (“ICD”), that disentitles him to commercial driving privileges.

3The appellant agrees that he had an ICD device implanted on July 7, 2023, as treatment for a low ejection fraction (“EF”). However, he submits that the ICD has not been triggered since it was installed and that he is at very low risk for cardiac episodes going forward. Therefore, he seeks his Class B licence to be reinstated so that he can resume his livelihood.

LAW

4Because the operation of larger, heavier vehicles on public highways creates greater risk to public safety, O. Reg 340/94 (the “Regulation”) imposes restrictions on the class of motor vehicle a given class of licence holder may operate on a highway. For example, a G licence holder is only allowed to drive a G class of vehicle, described as a motor vehicle, or combination of vehicle and towed vehicle with a combined gross vehicle weight of up to 11,000 kilograms, where the towed vehicles do not exceed a total gross weight of 4,600 kilograms. A Class B licence permits the driver to operate a school bus carrying up to 24 passengers and any commercial vehicle which exceeds the weight of 11,000 kilograms and combination of a motor vehicle and towed vehicles (e.g., a tractor-trailer combination) where the towed vehicles exceed a total gross weight of 4,600 kilograms, or a vehicle in classes C, D, F or G.

5The respondent has the authority under s. 32(5)(b)(i) of the Act to change the class of a person’s driver’s licence in accordance with examination results and other prescribed requirements.

6Subsection 14(1) of the Regulation under the Act 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 of the applicable class safely.

7It is the respondent’s burden to prove, on a balance of probabilities, that the appellant’s driver’s licence should remain downgraded to a class “G” licence.

8Following a hearing, the Tribunal may, under s. 50(2) of the Act, confirm, modify or set aside the respondent’s decision or order.

ISSUES

9The issue in this appeal is whether the appellant has a medical condition that is likely to significantly interfere with his ability to drive a commercial motor vehicle safely.

10To answer that question, we will address the following issues:

Does the appellant have a medical condition?
If so, is his medical condition likely to significantly interfere with his ability to drive a Class B vehicle safely?

RESULT

11We find, on a balance of probabilities, that the appellant suffers from a medical condition that is likely to significantly interfere with his ability to operate a Class B motor vehicle safely. We therefore confirm the respondent’s decision to downgrade the appellant’s Class B driver’s licence to a G licence.

ANALYSIS

Issue #1 – Does the appellant have a medical condition?

12The appellant had, up until his driver’s licence was downgraded, worked full-time as a garbage truck driver, working five days a week, eight hours per day. The tasks of his employment do not require heavy lifting. He operates the truck fork which mechanically lifts large garbage containers into the back of the truck.

13The appellant testified that he has a history of cardiac issues, dating from 2018 when he underwent triple coronary artery bypass graft surgery due to coronary artery blockages. According to a September 10, 2024, letter from his cardiologist, Dr. Konstantinou, he has also been diagnosed with ischemic cardiomyopathy, hypertension, hyperlipidemia, and congestive heart failure (“CHF”).

14The appellant testified that in July 2023, he had an ICD implanted as a precautionary measure because echocardiography in February 2023 showed that his left ventricular ejection fraction was between 18 to 22%. It is unclear about what transpired between this date and May 29, 2024, when Dr. Vertes, the appellant’s treating cardiologist wrote a letter to the Ministry of Transportation (“MTO”) advising that the appellant’s medical condition was stable and that he should be able to retain his licence. In response, MTO sent the appellant a letter dated June 14, 2024, attaching a Medical Report and Cardiovascular Assessment to be completed by a treating health practitioner.

15The appellant’s family physician, Dr. Karantonis, submitted a Cardiovascular Assessment report dated July 3, 2024. On the form, Dr. Karantonis checked off that the appellant had coronary artery disease; CHF with a left ventricular ejection fraction of less than 35%; arrhythmia or conduction disturbance; and ventricular tachycardia on two dates, which were illegible. The form also indicates that the appellant has an ICD, and when prompted for the date of the last shock or intervention that impaired level of consciousness, the doctor checked off the box which read “less than 6 months.”

16On July 8, 2024, the MTO sent the appellant a letter advising him that his driver’s licence was suspended due to the ICD implant and that to reinstate his G licence he would need to submit confirmation from a health practitioner that:

a) the appellant is assessed as a Class I, II or II of the New York Heart Association (NYHA) functional classification;

b) the appellant’s left ventricular ejection fraction is greater than or equal to 35%; and

c) that there have been no ICD discharges for a period of at least 6 months.

17Dr. Konstantinou, Cardiologist submitted a letter to MTO dated September 10, 2024, indicating that it was with respect to reinstating the appellant’s licence. The doctor notes that that he examined the appellant, and that recent echocardiography testing supports he has a left ejection fraction of 37%, he is a NYHA Class I (which means he has been asymptomatic) and that he has not had any ICD discharges since implantation which is well over six months.

18By letter dated September 16, 2024, the MTO notified the appellant that his licence would be reinstated, but only to the G class, and that his commercial driving privileges would remain suspended.

19We find the appellant suffers from a medical condition, namely, implantable cardioverter defibrillator (“ICD”).

Issue #2 - Is the appellant’s medical condition likely to significantly interfere with the appellant’s ability to operate a Class B motor vehicle safely?

Submissions of the respondent

20The respondent relies on the Canadian Council of Motor Transport Administrator’s National Safety Code, Standard 6: Determining Driver Fitness in Canada (the “CCMTA Standard”) and directs us to s. 3.6.26 of the CCMTA Standard, by which commercial drivers would not be eligible for a licence if they have an ICD implanted as primary prophylaxis. Further, the standard supports that commercial drivers may only be eligible if a cardiologist assessment indicates that the annual risk of sudden incapacitation is 1% or less.

21Chapter 3.4 of the CCMTA Standard sets out the potential adverse effect of cardiovascular disease on a person’s functional ability to drive, which includes a serious risk of sudden incapacitation.

22The respondent also relies on the Canadian Cardiovascular Society 2023 Guidelines on Fitness to Drive which supports that commercial drivers are disqualified to drive if they have an ICD. We acknowledge that this Guideline is not incorporated into s.14(2) (a) of the Regulation and therefore we are not bound by this Guideline.

23The respondent’s position is that the appellant’s cardiac conditions preclude him from having an annual risk of sudden incapacitation assessed at 1% or less. The respondent’s representative points to the July 3, 2024 Cardiovascular Assessment report, which the appellant’s family doctor completed and checked off several cardiac conditions including: CAD with triple bypass, CHF, and arrhythmia (ventricular tachycardia); the narrative letter from cardiologist Dr. Konstantinou which indicates an additional diagnosis of ischemic cardiomyopathy; and the narrative letter from family physician Dr. Karantonis which states that there was an episode of NSVT (non-sustained ventricular tachycardia). Finally, the respondent’s representative referred to the Ministry’s own internal policies and risk assessment to support their position.

24The respondent’s representative testified that the Driver’s Review Committee had a cardiologist consultant review the file and provide an opinion. The Committee’s internal notes refer to the doctor’s opinion that the appellant cannot be assigned a risk of 1% or less because this exception is meant for low-risk patients, not for patients like the appellant who has been diagnosed with ischemic cardiomyopathy and CHF who should be permanently disqualified from commercial driving. Further, MTO’s specialist indicated after reading the medical reports filed with the MTO that the appellant’s annual risk of sudden incapacitation was greater than 1%. We are unable to give this opinion any weight because there was no report submitted for our consideration and MTO’s correspondence to the appellant set out minimal details about this opinion.

Submissions of the appellant

25The appellant agrees that the CCMTA Standard in s. 3.6, sets out an acceptable threshold for annual risk of sudden incapacitation of 1% or less for commercial drivers and that exceptions to the guideline can be made if the treating cardiologist estimates the annual risk of sudden incapacitation to be less than 1%.

26The appellant relies on a letter from his family doctor dated September 30, 2024, which states that the recent echocardiography test results (conducted by Dr. Konstantinou) supports that his left ejection fraction was 37%, and that the appellant has not had any ICD discharge, shock, or intervention for the duration of the ICD placement. The family doctor also opined that the risk of incapacitation in the appellant’s case is believed to be less than 1%. Further, the doctor concluded that the appellant’s condition was stable and that he does not see any reason for his commercial licence to be revoked. The appellant relies on a subsequent letter from his family doctor dated October 24, 2024, in which the doctor maintains their opinion.

27The appellant testified that the MTO has never received any notification that his cardiovascular disease has interfered with his ability to safely drive a commercial vehicle. Further, he maintains a healthy lifestyle by eating a well-balanced diet, exercising regularly, coping with stress effectively and he takes various medications that treat his condition. To date, the appellant submits that he has not experienced any negative symptoms from the implantation of the ICD which routinely monitors his heart through an app which sends regular data and updates to his health practitioners.

28The appellant’s wife testified that she supports the appellant’s healthy lifestyle, and she has no concerns about the appellant’s health which would negatively interfere with his ability to drive a commercial vehicle.

The appellant’s health condition is likely to significantly interfere with his ability to drive Class B vehicles safely.

29Section 14(2)(a) of the Regulation allows the respondent to consider the CCMTA Standard(s) when determining whether a holder of a driver’s licence meets the requirements of section 14(1). The Tribunal may also take the CCMTA Standard(s) into consideration but is not bound by them. While they are routinely considered in reaching decisions on medical licence suspensions, they are not applied on a “blanket” basis. In considering the CCMTA Standards, we are mindful that they are the result of a lengthy and intense process to develop medical standards based on the best evidence available, and with a focus on impact on the functional ability to drive, rather than exclusively on medical diagnoses.

30We find that the respondent has met its onus in proving that the appellant’s medical condition, ICD, is likely to significantly interfere with the appellant’s ability to operate a Class B motor vehicle safely.

31Although we are not bound by the CCMTA standards, we find them reasonable. The CCMTA standards state that commercial drivers who have an ICD implanted as primary prophylaxis are generally not eligible for a commercial licence, unless a cardiologist assessment indicates that the annual risk of sudden incapacitation is 1% or less.

32We find that the only medical evidence of a cardiologist we have before us is the letter of Dr. Konstantinou whom the appellant saw on one occasion. Further, Dr. Konstantinou’s letter makes no reference to reinstatement of a “commercial licence.” In addition, the doctor does not render an opinion that the appellant’s risk of sudden incapacitation was felt to be 1% or less. The only medical opinion that we have before us on this point is the opinion of the appellant’s family doctor. However, we have given this opinion little weight because the family doctor is not a cardiologist and lacks the expertise to render an opinion on the appellant’s risk level for sudden incapacitation. The CCMTA is clear that the risk assessment be completed by a cardiologist.

33We believe the appellant that he is doing all he can to maintain a healthy lifestyle in order to minimize the risk of any complications of his condition. We can also appreciate that his wife has provided solid support. We also note that the appellant has complied with the treatment recommendations of his physician. However, we find that the appellant and his wife are not medical doctors and are of little assistance in assessing the risk of sudden incapacitation. Further, we find that the appellant lacks insight into some of his medical conditions. During his testimony, the appellant stated that he was unsure whether he has a diagnosis of CHF or arrhythmia, despite testifying that it is his belief that he is taking anti-arrhythmia medication.

34The Tribunal’s determination is based on whether the appellant’s medical condition is likely to significantly interfere with his ability to operate a Class B vehicle safely. We find that the appellant’s health condition and ICD leaves him at risk of a cardiac event which could be unexpected and incapacitating, and therefore a risk to public safety if permitted to operate Class B vehicle.

35Considering the preponderance of medical evidence before us, we find it is more likely than not, that the appellant’s medical condition is likely to significantly interfere with his ability to operate a Class B vehicle safely.

CONCLUSION

36We find the appellant’s medical condition is likely to significantly interfere with his ability to operate a Class B vehicle safely. We therefore confirm the respondent’s decision to downgrade the appellant’s Class B licence.

ORDER

37Pursuant to subsection 50(2) of the Highway Traffic Act, the respondent’s decision to downgrade the appellant’s Class B driver’s licence is confirmed.

Released: November 12, 2024

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