Licence Appeal Tribunal File Number: 15815/MED

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 downgrade a licence pursuant to Section 32(5)(b)(i) of the Act.

Between:

Janko Kolnik

Appellant

and

Minister of Transportation

Respondent

DECISION

ADJUDICATOR: Dr. Isla McPherson, Member

APPEARANCES:

For the Appellant: Janko Kolnik, Appellant

Stephne Halliburn, Appellant’s spouse

For the Respondent: Ian Sookram, Agent

Held by teleconference: May 10, 2024

OVERVIEW

1Janko (John) Kolnik (the “appellant”) appeals from the decision of the Minister of Transportation (“Minister”) to downgrade his commercial licence under s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) after the Minister received an unsolicited medical condition report stating that the appellant suffers from a medical condition that may affect his ability to drive a vehicle of the applicable class safely.

2Section 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.

3Section 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.

4The Minister takes the position that the appellant suffers from a medical condition, namely syncope, that is likely to significantly interfere with his ability to drive a commercial vehicle safely and that this provides sufficient reason to downgrade his licence under s. 32(5)(b)(i) of the Act.

5The appellant appeals the downgrade under s. 50(1) of the Act. He denies that he suffers from syncope and denies that he suffers from a medical condition which interferes with his ability to drive a commercial vehicle safely.

6Pursuant to section 50(2) of the Act, after a hearing the Tribunal may confirm, modify, or set aside the decision or order of the Minister.

ISSUES

7The issue in this appeal is whether the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive a commercial vehicle safely.

8To resolve that issue, I will address the following questions:

i. Does the appellant suffer from syncope?

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

9The Minister bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes.”

RESULT

10Having considered all the evidence and submissions and for the reasons that follow, I find that the Minister has satisfied its burden to establish that the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive a commercial vehicle safely and I confirm the Minister’s decision to downgrade the appellant’s driver’s licence.

PROCEDURAL MATTERS

11During the labeling of exhibits, the appellant realised that investigations from his cardiac testing were not submitted by his treating cardiologist. The opportunity to request an adjournment was discussed in order to allow the appellant an opportunity to gather this medical information. However, the appellant indicated he would like to proceed with the hearing.

ANALYSIS

Does the appellant suffer from syncope?

12The evidence presented at the hearing establishes that the appellant suffers from a medical condition, namely syncope.

13The Minister’s position is supported by:

i. a Medical Condition Report (MCR) dated February 2, 2024 from Emergency Room (ER) physician Dr. K; and

ii. a Seizure and Loss of Consciousness Form dated March 19, 2024 from cardiologist Dr. C.

14Dr. K submitted the MCR dated February 2, 2024, indicating that the appellant suffers from sudden incapacitation due to syncope and checked the box indicating this was a single episode not yet diagnosed. Dr. K. went on to provide the following narrative, “syncopal episode while operating a motorized vehicle”.

15Following the submission of the MCR, the Minister suspended the appellant’s driver’s licence effective February 12, 2024, and requested the completion of their Seizure and Loss of Consciousness Form.

16Dr. C. completed the requested Seizure and Loss of Consciousness Form dated March 19, 2024, checking the box indicating the appellant suffered from syncope /loss of consciousness. To further describe the type of syncope, Dr. C. checked the box indicating the appellant suffered from atypical vasovagal syncope, which occurs in the sitting position or is not preceded by warning signs. Dr. C. also indicated on this form the appellant has suffered from one episode that occurred less than 3 months ago.

17In response to the submission of the Seizure and Loss of Consciousness Form the Minister reinstated the appellant’s G class licence, communicating in their letter of March 22, 2024, that the appellant no longer met the national medical standards for a commercial driver’s licence until he provided confirmation that he had not experienced any further episodes of syncope for at least one year.

18Following the licence downgrade, the appellant submitted a WSIB Form 8 completed by Dr. K. dated February 6, 2024 to the Minister that included the written narrative, “patient not to drive or operate heavy machinery”. The timeframe for this directive was for the longest period on the Form, “14+ days”. The Minister responded to the submission with the same request for the appellant to provide confirmation that he had not experienced any further episodes of syncope for at least one year.

19The appellant testified that he has been healthy his entire life and never has been unwell until this past winter when driving a shunt truck at his place of employment. He describes on February 2, 2024, climbing into his truck and reaching for his phone then subsequently “passing out” for approximately 30 seconds. During this time the vehicle was moving and collided with a pole, causing damage to the vehicle. The appellant describes regaining consciousness shortly after the collision and calling for help. Paramedics attended the scene where he was assessed and was not transferred to the hospital, but he did proceed to the hospital later that day on the advice of his employer. At the hospital he describes being investigated and referred on for further consultation with a cardiologist. He describes undergoing testing consistent with an EKG, exercise stress test, echocardiogram and Holter monitor. He testifies that the consulting cardiologist, Dr. C., advised him that all cardiac investigations were normal.

20The appellant testified that there is exposure to fumes from the vehicles at the job site because the trucks are run 23.5 hours per day and, during the winter months, the windows in the vehicles are often closed, minimizing any air circulation. He testified that the trucks are poorly maintained, often not receiving appropriate maintenance and repair, contributing to the fumes generated. The appellant describes no longer working at this position.

21Although the appellant testified that he “passed out”, he disagrees that he suffered from syncope. He testified that he is in very good health and that the incident described was a reaction to being exposed to fumes from his work truck. To support his position, the appellant submitted the bloodwork from his hospital admission, three narrative letters from colleagues, two photographs and a video.

22The appellant relied on a narrative letter from his colleague C.W. The appellant testified this colleague used the same work truck as himself. In the written narrative, C.W. documented that this vehicle had exhaust fumes come into the cab when he was using the vehicle in January 2024, and he was subsequently sick in February from headaches, fatigue, dizziness, abdominal pain, diarrhea and drowsiness. C.W. reports that these are symptoms of carbon monoxide poisoning.

23The appellant relied on a second narrative from colleague G.H. This colleague drove a different truck but worked at the same location. She writes that since beginning the job in January 2024, she developed migraines with vomiting and confusion and was advised to find a new job due after a visit to the hospital for these symptoms.

24The appellant also relied on a video taken by the same colleague, G.H,. which demonstrates smoke through the windshield of the front of a vehicle. The appellant testified that the vehicle in the video is a work truck at his prior site of employment. The video does not demonstrate any identifying information of the vehicle.

25The appellant also relied on a third brief narrative that is undated and signed only by “Safety & Compliance”. The narrative states that, “when going into regen, frequently there is a smell coming from the trucks. Due the constant bouncing, it is not uncommon for a small exhaust leak”. The appellant describes the author of this document to be a Safety & Compliance employee who did not sign his name for fear of reprisal from his employer.

26The appellant additionally submitted a photograph of an article entitled, “Why Does My Diesel Engine Have White Smoke?”. Below the picture is a brief description of the process of diesel fuel going through the engine and reaching the exhaust without having been burned.

27In addition, the appellant submitted a photo of a warning label he describes being located on the work vehicles. This label documents a warning that breathing diesel engine exhaust poses a carcinogenic risk and risk of reproductive harm. The photograph does not document any risk of passing out, fainting, losing consciousness or syncope or other symptoms similar to what the appellant presented with.

28The appellant testified that he was a Health and Safety representative at his place of employment and took his concerns regarding the exposure to fumes to management but testifies that nothing was done to address the concern.

29The appellant testified that, while in the ER, the doctor asked if he had inhaled anything to which the appellant explained his concerns regarding the truck fumes. The appellant testifies that no tests were done following him raising this concern and no diagnosis was provided that might have explained the medical incident being related to truck fumes. More specifically, there was no diagnosis of carbon monoxide poisoning or other poisoning or toxicity related to the fumes.

30The appellant also testified that he had explained to his cardiologist that he felt the direction of the testing was wrong as he did not believe he had a heart condition, but in fact had suffered a side effect from inhaling fumes. The appellant reports that the cardiologist provided no confirmation that this was the case, and no explanation that the fumes caused the medical incident, nor was he referred to another specialist for further investigation or consultation.

31I acknowledge the appellant’s position that he has suffered a side effect of inhaling fumes from the truck at his prior site of employment. He has provided narrative letters from colleagues addressing the trucks releasing fumes causing symptoms, although both colleagues described having different symptoms from the appellant. More importantly though is that the appellant has raised his concern that exposure to these fumes caused him to pass out to his prior employer, the treating ER physician and cardiologist, and there is no evidence submitted that supports a medical opinion that these fumes contributed to the medical incident.

32The medical evidence before the Tribunal includes documents from Dr. K. and Dr. C. who both confirm the appellant has suffered from syncope. By the appellant’s own account, he confirmed that he briefly lost consciousness.

33I find the medical evidence in this case relevant and persuasive. Based on the information available, I find that the Minister has established on a balance of probabilities that the appellant suffers from syncope.

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

34I find that the Minister has proven 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.

35The Minister argues that the appellant’s syncope interferes with the appellant’s ability to drive a commercial vehicle safely and relies on the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”). Chapter 19 of the CCMTA Standards indicates that syncope causes an episodic impairment of all the functions necessary for driving and, as such, the driver cannot compensate in case of an episode.

36The CCMTA Standards’ guidelines for assessing syncope 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; the type of syncope; the position in which syncope occurs; whether the syncopal episode has treatable, reversible, or avoidable triggers; whether the syncopal episode is due to documented/inducible tachyarrhythmias; and whether the syncopal episode is unexplained. Furthermore, the syncope standards outline that waiting periods may be modified based on individual factors such as length of any reliable warning symptom or prodrome.

37The Minister argues that atypical vasovagal syncope, which is the type of syncope described in the submission by the appellant’s cardiologist Dr. C., is syncope that occurs in the sitting position or is not preceded by warning signs that are sufficient to allow a driver to pull off the road before losing consciousness. Given the risk of sudden incapacitation associated with this medical condition without any ability to compensate including even enough notice to pull off the side of the road, it is prudent for road safety to ensure that enough time has elapsed that it is unlikely further episodes would occur.

38Furthermore, the Minister referred to CCMTA Standard 19.6.10 which states that commercial drivers with single or recurrent atypical vasovagal syncope would be eligible for a licence if:

i. It has been at least 12 months since the last episode of syncope, and

ii. The conditions for maintaining a licence are met.

39Section 14(2)(a) of the Regulation allows the 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 but is not bound by them.

40The appellant argues that he has not had any further episodes of passing out since he has stopped driving the vehicle at his prior place of employment, which supports the position that the incident was caused by exposure to truck fumes. As he is no longer employed at this job site, he argues he is not at further risk of passing out.

41The appellant submits he is safe to operate a commercial vehicle as he is safely driving his private vehicle.

42The appellant’s position that the syncopal event was caused by exposure to fumes from his truck, and therefore unlikely to reoccur as he is not longer driving the same vehicle, does not have any supporting medical evidence, despite this concern being explicitly raised to both Dr. K. and Dr. C as well as his employer. There was no indication from either physician that the appellant’s syncope was related in any way to truck fumes, related to a situational trigger or related to any reversible cause. I acknowledge the narrative letters that the appellant has submitted from his colleagues documenting their symptoms and associating them with a similar exposure. However, their claims are not supported by any medical evidence, and I take note that they have suffered different symptoms from the appellant altogether. I acknowledge the photograph of the sign that the appellant submitted documenting that a truck should not be left idling due to health risks. However, these health risks documented on the sign are concerns related to reproductive health and carcinogenic risk, not syncope. There is no evidence submitted medical or otherwise that connects the exposure the appellant is describing to syncope.

43I note that the type of syncope that the appellant has suffered from, atypical vasovagal syncope, occurs in the seated position and by his own testimony gave him no advanced warning sufficient to even put his vehicle in park, let alone pull over, and therefore resulted in a collision at the job site. Should this sudden incapacitation with no ability to compensate reoccur while driving, it is not difficult to understand how the consequences could be disastrous for the appellant and other road users.

44Furthermore, as there is no suggested reversible cause of the appellant’s atypical vasovagal syncope in the medical submissions, there is no way to intervene to reduce the likelihood of future events. For these reasons, I conclude that a waiting period to ensure recurrence is unlikely is very reasonable. I note that the CCTMA Standards request 12 months episode free. At the time of the hearing, only a quarter of the suggested time has elapsed since the episode occurred.

45I acknowledge the appellant’s position that he is driving with a G class licence safely at present, and that he feels that driving with a commercial licence poses no additional risk to road safety. I understand the CCMTA Standards for commercial drivers requires a higher level of fitness than those that operate G class vehicles (i.e., passenger cars). I acknowledge that this difference in the standard may be significant to the appellant, but I disagree that there is no additional risk to road safety when operating a commercial vehicle. I believe that the standard for driving a commercial vehicle is higher for the reasons that these drivers spend many more hours driving, often drive under far more adverse conditions, are often unable to select their hours of work, cannot readily abandon their cargo should they become unwell on duty, may also be required to undertake heavy physical work such as loading or unloading vehicles and lastly because should the commercial driver suffer a collision, the consequences are much more likely to be serious.

46Lastly, I note that there is no medical support provided in the submissions for reinstatement of the appellant’s driver’s licence, G class or commercial. The only submission that references driving is the WSIB Form 8 which documents that the appellant should not drive or operate heavy machinery for 14+ days which is the longest period of time allowed on the Form before mandating medical reassessment.

47Although not bound by the CCMTA Standards, I considered them when making the decision because these Standards are the result of a lengthy and intensive process to provide medical standards based on the best evidence available and with a focus on functional ability to drive rather than exclusively on medical diagnoses. My review of the evidence shows that all conditions recommended for relicensing outlined in the CCMTA Standards have not been met.

48I acknowledge the burden that the lack of a commercial driver’s licence is having on the appellant. However, with only a quarter of the suggested time frame of being episode-free weighed against the risks of sudden incapacitation with no ability to compensate that results from an episode of atypical vasovagal syncope, along with the lack of any submitted medical evidence to support the safety of driving with this condition, is concerning.

49As such, for the reasons cited, I am satisfied 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

50I find that the Minister has discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely syncope, and that condition is likely to significantly interfere with his ability to drive a commercial vehicle safely.

ORDER

51For the reasons set out above, pursuant to subsection 50(2) of the Act, I confirm the Minister’s decision to downgrade the appellant’s driver’s licence.

Released: June 6, 2024

__________________________

Dr. Isla McPherson, Member