Licence Appeal Tribunal File Number: 15850/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:

Andrew Dudys

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR:

Dr. Peter Savage, Member

APPEARANCES:

For the Appellant:

Andrew Dudys, Appellant

For the Respondent:

Leila Pereira, Registrar’s Representative

HEARD: June 5, 2024

OVERVIEW

1Andrew Dudys (the “appellant”) appeals from the decision of the Registrar of Motor Vehicles (“Registrar”) to suspend his Class G 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 ability to drive safely.

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 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 obstructive sleep apnea, 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 to the Licence Appeal Tribunal (the “Tribunal”). They deny that they suffer from obstructive sleep apnea.

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 suffer from obstructive sleep apnea?

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 not 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 set aside the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from obstructive sleep apnea?

10The evidence presented at the hearing does not establish that the appellant suffers from a medical condition, namely obstructive sleep apnea.

11The Registrar alleges the appellant suffers from the condition of obstructive sleep apnea in their suspension letter of February 14, 2024.

12The Registrar’s position that the appellant suffers from obstructive sleep apnea is supported by medical reports completed by Dr. MacDiarmid, an urgent care clinic physician. These were:

i. Dr. MacDiarmid, in unsolicited Medical Condition Report (“MCR”) dated February 14, 2022, checked off obstructive sleep apnea, untreated and with an apnea-hypopnea index (AHI) of equal to or greater than 30 with daytime sleepiness. Dr. MacDiarmid goes on to write: “Snoring, self diagnosed possible sleep apnea, and sleep study pending. He is very sleepy today.”

ii. Dr. MacDiarmid in the sleep disorder questionnaire dated March 18, 2024, states the appellant is sleeping normally now and the presence of a sleep disorder is unknown.

13The appellant’s position is that he does not have obstructive sleep apnea.

14The appellant testifies he had a sinus infection and felt unwell and went to the urgent care clinic for treatment of his sinus infection. The appellant admits he told the physician that he felt tired and run down and mentioned that he had been snoring due to his nasal obstruction with the sinus infection. The appellant admits that he said he wondered about sleep apnea, but this was a question and a possible self diagnosis. The appellant points out that later in the week he was diagnosed with COVID-19, which he feels made him tired and run down. The appellant testifies he does not have sleep apnea and all his symptoms disappeared when the sinus infection and COVID-19 cleared.

15The appellant testified his wife says he is not snoring and has never mentioned he stopped breathing while he was sleeping.

16The appellant testified he was not overweight, nor did he have a thick neck or nasal pathology -- all physical characteristics that that I agree are often associated with obstructive sleep apnea.

17The appellant points to the Sleep Questionnaire and points out that Dr. MacDiarmid was not certain of his diagnosis.

18The appellant points out that in the MCR there are several reasons to doubt the diagnosis of obstructive sleep apnea. Dr. MacDiarmid stated the diagnosis of sleep apnea was based on the appellant’s self diagnosis, there is no evidence of an AHI test ever being done so there could not be a reading over 30 and no evidence any treatment plan ever being offered, let alone not being followed.

19In this hearing, there is very little medical evidence. While I understand Dr. MacDiarmid’s concern about a possible diagnosis of obstructive sleep apnea, I prefer the appellant’s position that he suffered from a sinus infection and COVID-19, resulting in fatigue and snoring. I accept the testimony of the appellant that he has none of the physical characteristics often associated with sleep apnea and that his wife has never reported apnea when sleeping. The Registrar’s case fails because the MCR that the Registrar relies on is ambivalent and uncertain and the appellant has satisfied me he merely had a sinus infection and COVID-19 and doesn’t have the physical characteristics commonly associated with obstructive sleep apnea. I find, on a balance of probabilities, that the appellant does not have obstructive sleep apnea. As I am not satisfied that there is the medical condition alleged by the Registrar, it follows that I do not need to decide the second issue.

Conclusion

20I find that the Registrar has not discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely obstructive sleep apnea, that is likely to significantly interfere with his ability to drive a motor vehicle safely.

ORDER

21For the reasons set out above, pursuant to subsection 50(2) of the Act, I set aside the Registrar’s decision to suspend the appellant’s driver’s licence.