RECONSIDERATION DECISION

Before: Bruce Stanton, Adjudicator

Licence Appeal Tribunal File Number: 15588/MED

Case Name: Barry J.Rowe vs. Registrar of Motor Vehicles

Written Submissions by:

For the Applicant: Brandon Rowe, Representative

For the Respondent: Ian Sookram, Agent

BACKGROUND

1The appellant is seeking a reconsideration of the decision in this matter, co-chaired by myself and Dr. Constantine Petrou, released on March 1, 2024 (“decision”). In that decision, we confirmed the respondent’s decision under s. 32(5)(b)(i) of the Highway Traffic Act, RSO 1990, c.H.8 (the “Act”) to downgrade the appellant’s Class A licence because we found that the appellant’s medical condition is likely to significantly interfere with his ability to operate a Class A vehicle safety, pursuant to s. 14(1) of O. Reg. 340/94 (“Regulation”) under the Act.

2We found that the appellant suffers from ventricular tachycardia (“VT”) that necessitated an implantable cardioverter defibrillator (“ICD”) implant for secondary prophylaxis and that the ICD implant has had to intervene (shock) on two occasions. Sections 3.6.28 and 3.6.30 of the Canadian Council of Motor Transport Administrators’ National Safety Code, Standard 6: Determining Driver Fitness in Canada (the “CCMTA Standard 6”) recommend that drivers having an ICD implanted as a secondary prophylaxis for sustained VT, and that has delivered a shock or intervened, be ineligible for a commercial licence.

3The grounds for a reconsideration to be allowed are set out in Rule 18.2 of the Licence Appeal Tribunal Rules 2023 (the “Rules”). To grant a request for reconsideration, the Tribunal must be satisfied that one or more of the following criteria are met:

a. the Tribunal acted outside its jurisdiction or committed a material breach of procedural fairness;

b. the Tribunal made an error of law or fact such that the Tribunal would likely have reached a different result had the error not been made; or

c. there is evidence that was not before the Tribunal when rendering its decision, could not have been obtained previously by the party now seeking to introduce it, and would likely have affected the result.

4In his request for reconsideration, the appellant identifies criterion b. of Rule 18.2 as a basis for the reconsideration request.

RESULT

5The applicant’s request for reconsideration is dismissed.

ANALYSIS

Applicant’s Request for Reconsideration

6Under Rule 18.2, the threshold for reconsideration is high. Reconsideration is a limited, error-correcting exercise, not a new hearing or an appeal of a hearing decision. The party requesting reconsideration must demonstrate how or why our decision falls into one or more of the criteria set out in Rule 18.2.

I find the appellant has not established grounds for the reconsideration under Rule 18.2(b) for the following reasons.

7The appellant expresses disagreement with our decision, and reiterates the same oral evidence he presented in the hearing, in particular that:

a. He is feeling well and has had no heart failure symptoms and no further ICD shocks in the last two years;

b. The aforementioned sections in CCMTA Standard 6, namely s. 3.6.28 and s. 3.6.30, should not apply to his circumstances and rather, the standard should exclusively be “a risk of sudden incapacitation of 1% or less”, referred to in the s. 3.6 preamble;

c. The standards in s. 3.6.28 and 3.6.30 are being applied in a “blanket” fashion that is discriminatory towards him;

d. The appellant has had no recorded incidents of sudden incapacitation prior to or following the ICD installation; and

e. Dr. Andrew Ha, cardiologist, in a recommendation letter dated June 7, 2022, asserted that the appellant’s licence be reinstated as he has been ventricular arrythmia free since his ICD shock on November 27, 2021”.

8In his reconsideration submissions, the appellant refers to our noting that Dr. Yu, his family physician, replied “unknown” to the question whether his annual risk of sudden incapacitation was 1% or less. The appellant submits that Dr. Yu’s uncertainty “does not constitute the acceptable threshold for annual risk of 1% or less for commercial drivers, as outlined by s. 3.6 of the CCMTA”.

9The appellant submits that Dr. Petrou taking notice, based on his specialized and scientific knowledge, that the appellant’s VT is likely irreversible, is contradicted by Dr. Ha’s note of June 7, 2022, which states the appellant is arrythmia free.

10The appellant advances a new submission in his reconsideration submissions, that his Class A licence should be subject to CCMTA Standard 6, s. 3.6.24 for commercial drivers with permanent pacemakers.

11The respondent submits that the appellant has not identified any error of law or fact made by the Tribunal that would have resulted in a different decision. It submits that the appellant has reiterated the same arguments that were presented in the hearing, that were heard and addressed at the hearing and in the decision. It submits that interpretation of the facts does not equate to an error in law.

12I find the appellant has not satisfied the ground for reconsideration in Rule 18.2(b).

13The arguments he presented in the hearing and again on reconsideration described in paragraph [7] a. to e. above were addressed in the decision, specifically:

a. At paragraphs 41, 42 and 43 of the decision we found the precariousness and unpredictability of the appellant’s health condition, despite the ICD not delivering a shock in the last two years, were supported by the clinical notes of cardiologists, Dr. Ha and Dr. Ahmad. Dr. Ha’s clinical records note that he educated the appellant on the unpredictable nature of VT and the risk of sudden cardiac death;

b. In the same paragraphs of the decision, we addressed the appellant’s claim that he should be subject to a different CCMTA Standard, namely “having 1% or less annual risk of sudden incapacitation” instead of the standard that applies to drivers like him who have VT and an ICD implant that has delivered a shock. On this subject, we turned to the appellant’s cardiologists for further insights. The clinical notes of both cardiologists, Dr. Ha and Dr. Ahmad, revealed the precarity of the appellant’s cardiac health and its unpredictability;

c. In paragraphs 38 and 45 of the decision, we addressed the so-called blanket use of the CCMTA Standard and reasoned that the appellant received individual consideration in this hearing, and that the CCMTA Standards are the result of a lengthy and intense process to set standards based on the best evidence available. We agreed with the CCMTA Standard 6’s focus on the functional ability to drive and considered it in relation to the specific risks involved with the appellant’s cardiac health;

d. The appellant appears to be arguing on reconsideration that the appellant has had no history of sudden incapacitation before or after the ICD was implanted. His claim is not consistent with the evidence the decision noted in paragraphs 22 and 23 (that the ICD did intervene on two occasions) and the appellant’s claim makes no reference to any error in law. This argument appears to be an attempt to continue the hearing and fails to meet the criteria under Rule 18.2(b);

e. In his reconsideration request the appellant is referring me to Dr. Ha’s June 7, 2022 letter of recommendation but he fails to identify how it amounts to an error in law that is the test for a reconsideration request in Rule 18.2(b). Again, the appellant is restating an argument that he presented at the hearing, was considered by the Tribunal, and found to be unpersuasive considering the preponderance of medical evidence referred to in paragraphs 40 to 46 of the decision.

Dr. Yu responding “unknown” to the question of whether the appellant is at 1% or less annual risk for sudden incapacitation

14The decision addresses this evidence at paragraph 40 where further insights were sought in the cardiologists’ (Dr. Ha and Dr. Ahmad) clinical notes and records, and in reasons for the decision set out in paragraphs 41 to 46.

15His reconsideration submissions on this point do not direct me to any error in law. The appellant appears to disagree with how this evidence was reasoned and interpreted, which is not an error in law.

16I find this argument fails to meet the ground for reconsideration under Rule 18.2(b).

Alleged contradiction between Dr. Petrou’s opinion and Dr. Ha’s recommendation letter of June 7, 2022

17In his reconsideration submissions, the appellant argues that Dr. Petrou’s taking notice of the likely irreversibility of the scar-mediated source of the VT (at paragraph 41) is contradicted by Dr. Ha’s June 7, 2022, letter in which he describes the appellant as being arrythmia free since November 2021. The appellant is not directing me to how it constitutes an error in law.

18As noted above, Dr. Ha’s letter was considered and not found to be persuasive considering the balance of evidence noted in paragraphs 40 to 46 of the decision. The appellant appears to be disagreeing with the lack of weight given to the June 7, 2022 letter, which is not an error in law.

19I find this argument fails to meet the ground for reconsideration under Rule 18.2(b).

New argument in the appellant’s reconsideration submission

20The appellant’s new submission that he should be subject to the commercial licence criteria in s. 3.6.24 of the CCMTA Standard 6 does not establish grounds for reconsideration. A reconsideration request is not a means to continue the hearing, and the reasons why s. 3.6.28 and s. 3.6.30 apply to the appellant’s circumstances are provided in the decision in paragraphs 40 through 46.

21The appellant has provided no evidence that any error in law or fact was made that would have likely resulted in a different decision as required by Rule 18.2(b). The submissions in his request for reconsideration have advanced the same arguments he presented in the hearing. His reconsideration request amounts to a disagreement with how the facts of the case were interpreted, which does not satisfy the ground in Rule 18.2(b).

22I find the appellant has not satisfied the ground for reconsideration in Rule 18.2(b).

CONCLUSION

23For the reasons noted above, I dismiss the applicant’s request for reconsideration.

Released: May 21, 2024

____________________

Bruce Stanton

Adjudicator