Licence Appeal Tribunal File Number: 15588/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:

Barry J. Rowe

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATORS:

Dr. Constantine Petrou, M.D.

Bruce Stanton

APPEARANCES:

For the Appellant:

Barry J. Rowe

Brandon Rowe, Son of and representative of the Appellant

For the Respondent:

Ian Sookram, Agent

Heard by Teleconference:

February 23, 2024

OVERVIEW

1Barry Rowe (the “appellant”) appeals from a decision of the Minister of Transportation (the “respondent”) to downgrade his driver’s licence from commercial, Class A, to a “G” licence, effective June 14, 2022, pursuant to s. 32(5)(b)(i) of the Act.

2The respondent claims that the appellant suffers from a medical condition, having an implantable cardioverter defibrillator (“ICD”) that has intervened at least once since being implanted, that disentitles him to commercial driving privileges.

3The appellant agrees that he suffers from cardiovascular disease and had an ICD device implanted on May 20, 2021 as a secondary prophylaxis to monitor and respond to cardiac episodes he experiences. However, he submits that the ICD has not triggered in more than two years, and he is at very low risk for cardiac episodes going forward. Therefore, he seeks his Class A 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 A licence permits the driver to operate any combination of a motor vehicle (other than a bus carrying passengers) 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 D or G.

5The respondent has the power 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 commercial licence privileges should remain suspended.

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:

1. Does the appellant have a medical condition?

2. If so, is his medical condition likely to significantly interfere with his ability to drive a Class A 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 A motor vehicle safely. We therefore confirm the respondent’s decision to downgrade the appellant’s Class A driver’s licence to a G licence.

ANALYSIS

The circumstances leading to the licence suspension and appeal

12The appellant had, up until his commercial driver’s licence was suspended, worked 30 years driving commercial vehicles and trucks, including shunting (moving trailers within the private yard of the trucking company) 50 to 60 trailers per day. He is also a generator technician and crane operator.

13The appellant testified that he has a history of cardiovascular disease dating from at least 2008 when he suffered a heart attack. Following the heart attack, a stent was inserted in his right coronary artery.

14Since that date, the appellant testified that he has been required to submit medical assessments every two years to the Ontario Ministry of Transportation (“MTO”) to keep his Class A licence in force.

15Between 2008 and 2021, there were four occasions when the appellant’s medical report to the MTO resulted in a temporary suspension of his commercial licence, in 2012, 2015, 2017 and 2020. Upon submitting medical documentation, the MTO reinstated his commercial driving privileges.

16On May 15, 2021, the appellant had some dental work done and later that day felt light-headed and unwell. Paramedics were called to his home where he was experiencing heart palpitations and a racing heart rate. The paramedics reported he was in ventricular tachycardia (“VT”) with a rate of 220 beats per minute and low blood pressure. He was stabilized and transferred to Georgetown Hospital for treatment and was later moved to Mississauga Hospital on May 17, 2021, where he was treated by Dr. Geoffrey Scott Puley, MD. In his discharge report of May 17, Dr. Puley reported that the appellant had been doing well after the stent operation in 2008, despite having significant left ventricular (“LV’) dysfunction.

17While at Mississauga Hospital, the appellant was diagnosed with VT with moderate ischemic cardiomyopathy (dilated or poorly pumping heart chambers) and on May 20, 2021 he underwent an ICD implant. He was treated by Dr. Andrew Ha, cardiologist. In Dr. Ha’s hospital discharge report of May 20, he confirms the appellant suffers from moderate LV dysfunction with an ejection fraction (“EF”) of 35% and was referred to him to receive a secondary prevention ICD implant. The report notes the appellant understands the ICD implant will result in his losing his commercial driver’s licence.

18On May 26, 2021, the MTO notified the appellant that his driver’s licence was suspended due to the ICD implant and that to reinstate his G licence he would need to submit a completed Cardiovascular Assessment report to the MTO Medical Review office.

19The appellant’s family physician, Dr. Philip Yu, submitted a completed Cardiovascular Assessment report dated July 20, 2021, but the MTO advised that for the appellant’s driver’s licence to be reinstated, it would need confirmation that at least six months had passed since the last shock or intervention by his ICD device.

20Dr. Ha provided a letter to the appellant, dated June 7, 2022, which indicated the appellant was free of ventricular arrhythmia since his last ICD shock on November 27, 2021.

21The MTO notified the appellant on June 14, 2022 that his licence would be reinstated, but only to the G class, and that his commercial driving privileges would remain suspended. The appellant has not had a Class A licence since May 26, 2021.

Issue #1 – Medical Condition

22We find the appellant suffers from a medical condition, VT, that necessitated the ICD implant for secondary prophylaxis. Furthermore, the ICD implant has had to intervene on two occasions, on or about September 11, 2021, and again on November 27, 2021.

23The documentary medical evidence submitted by the parties, and their oral evidence at the hearing, support this finding. The appellant testified that he understands his health condition and that he has a history VT and its associated risks. The appellant acknowledges the two occasions the ICD intervened and testified that each occasion came within a day or two after a dental appointment in which he received a local anaesthetic.

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

24We find that the appellant’s medical condition, VT with an ICD implant that has triggered twice since being installed in May 2021, is likely to significantly interfere with the appellant’s ability to operate a Class A motor vehicle safely.

Submissions of the respondent

25The respondent relies on the medical reports of Dr. Ha on May 20, 2021, and Dr. Yu on July 20, 2021, that confirm the appellant had an ICD implanted and that the device was triggered.

26The respondent refers us to clinical notes and records of Dr. Ha, on December 4, 2023, in which he dismisses the likelihood that the appellant’s VT episodes (that triggered the ICD device) were related to the dental treatment or the COVID-19 vaccine and cites the Canadian driving guideline “that once you have hemodynamically unstable VT with cardiomyopathy, unfortunately this disqualifies for a commercial licence.”

27The respondent directs us to the Mississauga Hospital report of November 27, 2021 that followed the appellant’s VT episode that day, in which he was admitted overnight for the ICD shock, and which takes note that this was the appellant’s third VT episode within one year.

28In its January 8, 2024 notice, the respondent advised the appellant that he is not entitled to a commercial licence because he has:

1. an ICD implantation for secondary prophylaxis; and

2. the ICD delivered a shock.

29The 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. 3.6.28 of the CCMTA Standard, by which commercial drivers would not be not eligible for a licence if they have an ICD implanted as secondary prophylaxis for sustained VT, and s. 3.6.30 by which if the ICD has delivered a shock or intervened, the driver would be ineligible for a commercial licence.

30The respondent adds that the standards for licence holders in s. 3.6 of the CCMTA Standard are based on the recommendations of the 2003 Canadian Cardiovascular Society Consensus Conference Assessment of Cardiac Patient for Fitness to Drive and Fly (the “CCS”). The CCS focusses on the potential for episodic impairment associated with cardiovascular diseases.

Submissions of the appellant

31Brandon Rowe (“Brandon”), the appellant’s son, testified that his father’s heart health is stable, that he has not had an ICD intervention in more than two years and that he did not lose consciousness during any of his VT episodes.

32Brandon, on behalf of the appellant, submits that his father does not suffer from a disability or physical condition that is likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely, and that the medical records support that conclusion.

33The appellant relies on Dr. Ha’s recommendation letter of June 7, 2022 in which Dr. Ha recommends the appellant’s licence be reinstated as he has not had ventricular arrythmia, nor an ICD shock, since November 27, 2021 (seven months earlier). The appellant also directs us to Dr. Ha’s notes in his report of a cardiac device check on December 4, 2023, which state the appellant has been “doing well without any heart failure symptoms over the last couple of years” and feels back to normal.

34The appellant submits that the CCMTA Standard in s. 3.6, citing the CCS guidelines put in evidence by the respondent, is based on an acceptable threshold for annual risk of sudden incapacitation of one percent 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 less than 1%. On behalf of the appellant, Brandon submits that since his father has not suffered an incapacitating VT, i.e. lost consciousness, he more than meets the less than 1% standard.

35The appellant testified that he has been feeling well and wants to get back to work. He has not had a VT episode in more than two years and remains physically active, caring for grandchildren, walking, skating and doing daily activities that require physical exertion. He argues that since he stopped getting COVID-19 vaccines and having dental appointments (with local anesthetic), he’s had no VT episodes.

36The appellant argues that it was the dentist’s use of epinephrine in local anesthetic that triggered the VT that led to his ICD interventions in September and November of 2021. The appellant testified that he had previously taken up to three COVID-19 vaccines and he suspects that they, together with the dental anesthetic, created the conditions for the two VT episodes.

37The appellant submits that adhering to the blanket standard recommended by the CCS and the CCMTA is discriminatory and does not take account of his father’s individual health circumstances. He refers us to British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights), 1999 CanLII 646 (SCC), [1999] 3 S.C.R. 868 (“Grismer”). In Grismer, the appellant suffered the loss of peripheral vision that disentitled him to a driver’s licence based on a blanket policy that required a 120-degree field of vision to be licensed. The court found that the blanket policy discriminated against the appellant because no exceptions to the policy were considered, and he was not permitted an individual assessment of whether his disability impacted road safety.

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

38Section 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 as in Grismer, and the appellant’s case has received individual consideration. 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.

39The CCS recommendations reflected in s. 3.6.28 and 3.6.30 of the CCMTA Standard are supported, in this case, by medical evidence that points to the precariousness of the appellant’s cardiovascular disease. We take note that applying these two standards would result in the appellant being unable to hold a commercial licence, where there is a heightened imperative for road safety owing to the size and weight of that class of motor vehicles, in the face of his precarious medical condition.,

40We take note that, as recently as December 20, 2023, Dr. Yu’s Cardiovascular Assessment of the appellant did not state his annual risk of sudden incapacitation was felt to be 1% or less. Dr. Yu responded to that question as “unknown”. From that uncertainty, we turn to the appellant’s cardiologists for further insight.

41Dr. Mayraj Ahmad, the appellant’s cardiologist, noted in his progress report of October 3, 2022, that the appellant was felt to have scar-mediated VT with a history of previous myocardial infarction, and moderate left ventricular dysfunction. We are persuaded by Dr. Ahmad’s description of the appellant’s health condition. Section 16(b) of the Statutory Powers Procedure Act permits this tribunal to take notice of any generally recognized scientific or technical facts, information or opinions within its scientific or specialized knowledge. Dr. Petrou, who is a member of this panel, is a physician duly licensed in Ontario to practise medicine. Based on his specialized and scientific knowledge, we take notice that the scar-mediated source of the appellant’s VT is likely irreversible i.e. he will continue to live with a precarious heart condition which the ICD is intended to mitigate.

42In addition to the foregoing, Dr. Ha’s records note the appellant’s LV ejection fraction (“LVEF”) is at 35%, indicating his LV dysfunction is bordering on the threshold (less than 35%) below which the CCMTA Standard in s. 3.6.13 states a commercial licence should not be available. While not the focus of this proceeding, the appellant’s low LVEF level adds to the overall unpredictability of the appellant’s medical condition.

43The medical records the respondent directed us to in Dr. Ha’s hospital record of November 27, 2021 (following the second intervention by the appellant’s ICD) are compelling and persuasive. Dr. Ha’s impression notes include “educating the patient on the unpredictable nature of VT and the risk of sudden cardiac death.”

44We do not give weight to the appellant’s opinion that his VT episodes were caused by dental work or COVID vaccines and therefore not at risk of repetition because he will now avoid both of these things. We have regard to the opinion of Dr. Ha, who stated they are “very unlikely to be related to COVID vaccine and highly unlikely to be related to dental treatment.” We acknowledge that Dr. Yu opined, in his Cardiovascular Assessment of July 20, 2021, that the dental work may have increased the appellant’s adrenaline and led to the VT episode. We note the divergence of opinion between Dr. Yu and Dr. Ha’s on this question, but we give more weight to Dr. Ha’s opinion because he is a cardiologist. Furthermore, even if an episode were potentially triggered by dental work, the evidence is that the appellant’s medical condition is precarious enough that future episodes are unpredictable.

45We considered and recognized the principles set out in Grismer, as noted above. However, the Tribunal’s determination is based on whether the appellant’s medical condition is likely to significantly interfere with his ability to operate a Class A vehicle safely. The medical evidence persuades us that the appellant’s health condition leaves him at risk of another VT that could be unexpected and incapacitating, and therefore a risk to public safety if permitted to operate Class A vehicles on the highways. Individualized assessments from experts document the risk his medical condition poses to the operation of commercial vehicles.

46Considering 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 A vehicle safely.

CONCLUSION

47We find the appellant’s medical condition is likely to significantly interfere with his ability to operate a Class A vehicle safely. We therefore confirm the respondent’s decision to downgrade the appellant’s Class A licence.

ORDER

48Pursuant to subsection 50(2) of the Highway Traffic Act, the respondent’s decision to downgrade the appellant’s Class A driver’s licence is confirmed.

Released: March 1, 2024

__________________________

Dr. Constantine Petrou, M.D.

Adjudicator

__________________________

Bruce Stanton

Adjudicator```