Walter Servant v. Minister of Transportation, 2024 CanLII 65414

Licence Appeal Tribunal File Number: 15943/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 Minister of Transportation to change the class of a driver's licence under s. 32(5)(b)(i) of the Act.

Between:

Walter Servant

Appellant

and

Minister of Transportation

Respondent

DECISION

ADJUDICATOR:

Dr. Erica Weinberg, Member

APPEARANCES:

For the Appellant:

Walter Servant, Appellant

Vanesa Servant, Appellant's daughter, Representative and Interpreter

For the Respondent:

Sharon Nelson, Representative

HEARD by teleconference: June 26, 2024

OVERVIEW

1Walter Servant (the "appellant") appeals from the decision of the Minister of Transportation (the "Minister", the "Ministry" or the "respondent") to change their Class D licence to a Class G licence under s. 32(5)(b)(i) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the "Act"), effective May 21, 2024.

2The Registrar of Motor Vehicles has the authority under s. 47(1)(g) of the Act to suspend or cancel a driver's licence for any sufficient reason.

3The Minister has the authority under s. 32(5)(b)(i) of the Act, to 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.

4Section 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 may require a driver to provide satisfactory evidence that they are able to drive safely.

5Following the review of requested medical information, and by letter dated May 21, 2024, the Ministry wrote to the appellant stating that the appellant no longer met the national medical standards for a commercial licence and that a Class G licence would be mailed to them. By issuing this statement, the Minister changed the class of the appellant's driver's licence for the purposes of s. 32(5)(b)(i) of the Act.

6The Minister takes the position that the appellant suffers from a medical condition, namely severe chronic obstructive pulmonary disease (severe "COPD"), that is likely to significantly interfere with their ability to drive a Class D vehicle safely and that this provides sufficient reason to change the class of their licence under s. 32(5)(b)(i) of the Act.

7The appellant appeals the change in class of their licence under s. 50(1) of the Act. They acknowledge that, according to lung function testing, they suffer from severe COPD. However, the appellant denies they have severe respiratory symptoms and denies that their COPD interferes with their ability to drive a Class D vehicle safely.

8Pursuant 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.

PRELIMINARY ISSUES

9At the onset of the hearing, the respondent inquired whether the appellant had received the respondent's submissions by email following the case conference and whether the appellant received a couriered copy of the respondent's submissions following the case conference.

10The appellant's representative stated that the respondent's emailed submissions were received but, as was also the circumstance prior to the case conference, neither the appellant nor their representative could open the emailed submissions. Furthermore, the appellant stated that they neither received a couriered copy of the submissions at their address on record nor did they receive any message with respect to where the couriered package was available for pickup.

11Following a discussion, the appellant elected to proceed with the hearing in absence of the respondent's submission package.

ISSUES

12The 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 Class D vehicle safely.

13To resolve that issue, I will address the following questions:

i. Does the appellant suffer from severe COPD?

ii. If so, is this likely to significantly interfere with their ability to drive a Class D vehicle safely?

14The Minister bears the burden of proving on a balance of probabilities that the answer to each of the above questions is "yes."

RESULT

15Having considered all the evidence and submissions and for the reasons that follow, I find that the Minister 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 Class D vehicle safely and I set aside the Minister's decision to change the class of the appellant's driver's licence.

ANALYSIS

Does the appellant suffer from severe COPD?

16The evidence presented at the hearing establishes on a balance of probabilities that, by lung function testing, the appellant has severe COPD.

17The fact that the appellant has COPD is not in dispute. This fact is confirmed by the appellant's family physician, Dr. Michael, in the completed cyclical Medical Reports sent to the Ministry (2018, 2022, 2023 and 2024) and by the appellant at the hearing. In all the above-mentioned Medical Reports, Dr. Michael wrote "COPD – stable".

18In response to the completed March 19, 2024 cyclical Medical Report, and by letter dated April 8, 2024, the Ministry requested further information regarding the appellant's COPD. In particular, the Ministry required: confirmation of the level/degree of impairment from the appellant's COPD (i.e., mild, moderate, severe); whether or not the appellant required supplemental oxygen continuously for driving; details of any functional impairments resulting from the COPD; and confirmation that the appellant has the functional abilities necessary for driving.

19The appellant's respirologist, Dr. Bhinder, sent a narrative letter to the Ministry dated May 8, 2024. This letter reads, in part:

"I am the respiratory specialist for [the appellant] with respect to the management of his COPD. From a spirometry, lung function standpoint, this gentleman has severe COPD however he does not have significant impairment with his daytime activity. From a daytime standpoint, he does not have recurrent chest infections, he has minimal cough and minimal mucus and at the very most if he hurries on level ground or pushes himself farther with respect to physical activity and exertion, he may have to slow down but he does not have to stop walking at his own pace. The breathing test may indicate severe airways obstruction but his functional status is not severe.

He does not require supplemental oxygen at rest. He does not require supplemental oxygen for driving. His oxygen saturation today is 95% at rest. Supplemental oxygen is not required for operation of a commercial motor vehicle."

20The Minister's argues that Dr. Bhinder's letter states that the appellant has severe COPD.

21The appellant acknowledges that their lung function testing is consistent with them having severe COPD. However, the appellant argues that they: feel well; take their COPD medications as prescribed; do not use supplemental oxygen; may have shortness of breath when they hurry/do things quickly; attend appointments with Dr. Bhinder every six months; have regular lung function testing; and do not believe that their functional status, as the result of their COPD, is severe.

22Based on the above, I find that the Minister has established on a balance of probabilities that, by lung function testing, the appellant has severe COPD. I will deal with the clinical functional level/functional impacts of the appellant's COPD under the second part of the test.

Is the appellant's medical condition likely to significantly interfere with their ability to drive a Class D vehicle safely?

23I find on a balance of probabilities that the appellant's medical condition is not likely to significantly interfere with their ability to drive a Class D vehicle safely.

24The Minister's representative argues that COPD can interfere with the safe operation of a motor vehicle by causing reduced oxygen flow to the brain and subsequent cognitive impairment, including impairments in attention, memory, decision making and judgement. They further argue that those severely impaired by COPD are unable to meet the physical demands of most jobs, including travel to work.

25Section 14(2)(a) of the Regulation allows the Minister to consider the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the "CCMTA Standards"), when determining whether the requirements of s. 14(1) are met. The Tribunal may take the CCMTA Standards into consideration, although they are not binding on the Tribunal.

26The Minister relies on the CCMTA Standards, in particular Chapter 16.6.6 (Severe impairment or requiring continuous supplemental oxygen – Commercial drivers). 16.6.6 provides that commercial drivers are not eligible for a licence in these cases. I note that the Rationale for this Chapter states, "severe impairment or a requirement for continuous supplemental oxygen due to respiratory disease generally indicates significant impairment of the functions needed for commercial driving".

27The appellant argues that their COPD does not interfere with the safe driving of a Class D vehicle. The appellant testified that: they believe their functional status as a result of their COPD is not severe; they have never been hospitalized or visited an emergency department as a result of their COPD; they are able to check their Class D vehicle twice a day as required for driving with no respiratory symptoms; they work 7 a.m. – 4 p.m. or 8 a.m. – 5 p.m. and do not get fatigued when driving their Class D vehicle; they passed their Senior Commercial Driver test in July 2023, which was done at the request of the Ministry; and Dr. Bhinder's letter is supportive of them driving a commercial vehicle.

28I note that the remainder of Dr. Bhinder's May 8, 2024 letter states:

"His use of his commercial motor vehicle is for part-time occupational responsibility. He is able to perform all activity with respect [to the] operation of the motor vehicle, maintenance, securing loads, and anything required for safe operation of his vehicle without limitation, without restriction, and without any hindrance due to his lung condition. His lung condition does not have any negative impact on his operation of the motor vehicle and his lung condition has not prevented him from performing his occupational duties. Indeed, I'm glad that he continues to work because that is allowing him to remain active which is a key essential aspect of the management of COPD and in his case, he is able to remain active by continuing his part-time commercial driving occupational duties."

29While the CCMTA Standards are well-reasoned and provide assistance, every case must be considered on its own facts.

30Although I am not bound by the CCMTA Standards, I find them reasonable.

31Given the evidence and submissions, I am persuaded to apply the CCMTA Standards in the circumstances of this case.

32Chapter 16 of the CCMTA Standards states that "the level of general impairment caused by respiratory diseases, is commonly described as mild, moderate or severe, as described in the table below".

Level of Impairment*	Symptoms	Pulmonary Function Testing result	Nature of General Impairment
Mildly Impaired	Dyspnea when walking quickly on level ground or when walking uphill; ability to keep pace with people of same age and body build walking on level ground, but not on hills or stairs.	FVC > 60 to 70% of predicted, or FEV1 > 60 to 79% of predicted, or FEV1/FVC x 100 60 to 74%, or DLCOsb 60 to 79% of predicted.	Usually not correlated with diminished ability to perform most jobs
Moderately Impaired	Shortness of breath when walking for a few minutes or after 100m walking on level ground	FVC 51 to 59% of predicted, or FEV1 41 to 59% of predicted, or FEV1/FVC x 100 41 to 59%, or DLCOsb 41 to 59% of predicted.	Progressively lower levels of lung function correlated with diminished ability to meet the daily demands of many jobs
Severely Impaired	Too breathless to leave the house, breathless when dressing. The presence of untreated respiratory failure.	FVC 50% or less of predicted, or FEV1 40% or less of predicted, or FEV1/FVC x 100 > 40% or less, or DLCOsb > 40% or less of predicted.	Unable to meet the physical demands of most jobs, including travel to work

*The correlation between pulmonary function testing results and an individual's overall symptoms is imperfect. Where there is a discrepancy between the clinical functional level and the pulmonary function test results, an individual's symptoms should be the primary focus when making licensing decisions.

33I find on a balance of probabilities that the respondent has not applied the CCMTA Standards as outlined in the table above. The footnote of the table clearly states, "The correlation between pulmonary function testing results and an individual's overall symptoms is imperfect. Where there is a discrepancy between the clinical functional level and the pulmonary function test results, an individual's symptoms should be the primary focus when making licensing decisions".

34In the circumstances of this case, I find on a balance of probabilities that the respondent has neither used the appellant's respiratory symptoms, as described by Dr. Bhinder, nor the appellant's clinical functional level/abilities as the primary focus when they made their licensing decision.

35It is clear from the appellant's testimony and Dr. Bhinder's narrative letter that the appellant is neither too breathless to leave the house nor unable to meet the physical demands of most jobs, including travel to work. Thus, on a balance of probabilities, the appellant's current level of impairment according to the above table is not 'severely impaired'.

36In addition, it is clear from the appellant's testimony and Dr. Bhinder's narrative letter that the appellant does not get short of breath when walking for a few minutes or after 100 metres walking on level ground. Thus, on a balance of probabilities, the appellant's current level of impairment according to the above table is not 'moderately impaired'.

37I find, on a balance of probabilities, that the appellant's current level of impairment according to the above table from the CCMTA Standards is 'mildly impaired'. As previously stated, the appellant testified they may get short of breath when they hurry/do things quickly and Dr. Bhinder wrote: "at the very most if he hurries on level ground or pushes himself further with respect to physical activity and exertion, he may have to slow down but he does not have to stop walking at his own pace"; and "he does not have significant impairment with his daytime activity".

38Furthermore, the appellant does not use supplemental oxygen at rest nor requires it for driving. The appellant's current resting oxygen saturation according to Dr. Bhinder is 95%. As a licenced and duly qualified physician practicing in Ontario, I know that an oxygen saturation of 95% is considered normal. I take notice of this fact pursuant to s. 16(b) of the Statutory Powers Procedure Act, R.S.O. 1990, c.S.22.

39Moreover, I find on a balance of probabilities that the respondent has not applied the most appropriate CCMTA Standard in the circumstances of this case.

40Based on my analysis above which focuses on the appellant's symptoms and functional abilities, I find on a balance of probabilities that currently the most appropriate CCMTA Standard in this case is Chapter 16.6.1 (Mild impairment). I note that this Standard is the same for all drivers and states that all drivers are eligible for a licence.

41Based on the totality of the above, I am satisfied on a balance of probabilities that the appellant's medical condition is not likely to significantly interfere with their ability to drive a Class D vehicle safely.

Conclusion

42I find that the Minister has not discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely severe COPD, that is likely to significantly interfere with their ability to drive a Class D vehicle safely.

ORDER

43For the reasons set out above, pursuant to subsection 50(2) of the Act, I set aside the Minister's decision to change the class of the appellant's driver's licence.

Released: July 2, 2024

LICENCE APPEAL TRIBUNAL

_________________________

Erica Weinberg

Adjudicator