Licence Appeal Tribunal File Number: 15885/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:

Lambertus Weykamp

Appellant

and

Minister of Transportation

Respondent

DECISION

ADJUDICATOR: Dr. Isla McPherson, Member

APPEARANCES:

For the Appellant: Lambertus Weykamp, Appellant Mark Nicol, Appellant’s paralegal representative

For the Respondent: Sharon Nelson, Agent

Held by teleconference: June 10, 2024

OVERVIEW

1Lambertus Weykamp (the “appellant”) appeals from the decision of the Minister of Transportation (“Minister”) to change the class of his AC licence to a GM 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 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 a person, in accordance with the results of examinations and other prescribed requirements.

4The Minister takes the position that the appellant suffers from a medical condition, 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 agrees that he suffered a syncopal episode but 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 not 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 set aside the Minister’s decision to downgrade the appellant’s driver’s licence.

PROCEDURAL MATTERS

11The respondent’s representative arrived 30 minutes late to the hearing. No request for adjournment was received and the parties indicated they were prepared to proceed as planned.

12At the onset of the hearing, it was discussed that the appellant’s spouse would be called as a witness. The appellant’s representative submitted a request to have the appellant’s spouse present for the entirety of the hearing. The Minister submitted no objection to this request, and the appellant’s spouse was present for the duration of the hearing.

ANALYSIS

Does the appellant suffer from syncope?

13The evidence presented at the hearing establishes that the appellant suffers from a medical condition, namely syncope.

14The Minister’s position is supported by:

i. a Seizure and Loss of Consciousness Form dated February 6, 2024, from family physician Dr. Bz.

ii. a consultation letter from cardiologist Dr. B dated April 29, 2024.

iii. a Driver’s Medical form from family physician Dr. Bz dated May 8, 2024.

15Emergency room physician Dr. W. submitted a Medical Condition Report (MCR) dated October 28, 2023, indicating that the appellant suffers from sudden incapacitation due to seizure and documented “1^st seizure” on the MCR form.

16Following the receipt of the MCR, the Minister requested the completion of a Seizure and Loss of Consciousness Form. This form was completed February 6, 2024, by the appellant’s family physician, Dr. Bz., who checked the box indicating that the appellant’s primary medical diagnosis was “syncope/loss of consciousness”, not seizure, and further documented the following, “the appellant suffered from a brief syncopal episode on October 28, 2023”.

17Following the receipt of the requested Seizure and Loss of Consciousness Form, the Minister changed the reason for the medical suspension from seizure to syncope and subsequently reinstated the appellant’s GM licence effective February 7, 2024, but communicated to the appellant that he had failed to meet the national medical standards for a commercial licence until he had remained episode free for 12 months. The respondent’s representative testified that specifically the type of syncope being applied to the appellant’s case was a single episode of unexplained syncope.

18The diagnosis of syncope is further documented in a completed Cardiovascular Assessment Form requested by the Minister and completed by the appellant’s cardiologist Dr. B, and dated April 29, 2024. On this form Dr. B answers affirmatively to the question of whether the patient has suffered from syncope or loss of consciousness.

19Family physician Dr. Bz further documents the diagnosis of syncope on a Driver’s Medical Report dated May 8, 2024, where Dr. B has written, “single syncopal episode October 2023”.

20The appellant testified that on October 28, 2023, he awoke early with plans to pick up furniture from his wife’s relatives. After having a sandwich and coffee around approximately 9 am, he and his wife spent the day collecting the furniture and returned in the evening to their daughter’s house a few blocks from their own house to pick up their dog before going home. The appellant testified he had not had the chance to eat or drink anything following his meal around 9 am except possibly one cup of coffee. The appellant testified his wife drove their vehicle home from his daughter’s house while he chose to walk their dog home. During the walk home he testified that he suffered a loss of consciousness for a brief period of time and awoke in the back of an ambulance where he was subsequently transferred to the hospital. He testified that he does not dispute that he suffered from an episode of syncope, but he testified that he does not feel it is an unexplained episode because he attributes the episode to having nothing to eat or drink for approximately 8 hours prior. In response to questioning, the appellant additionally put forward that he was concerned he bumped his head after being pulled over by his dog as when he awoke, he had a significant headache and reddened area to skin of his forehead. He additionally reported that his dog had pulled his wife over the year prior and broken her shoulder.

21The appellant’s spouse of 44 years testified during the hearing corroborating the details of the day of the event including that the appellant and herself had not anything to eat or drink other than a possibly a cup of coffee for 8 hours prior to the incident. The appellant’s spouse testified that she was notified that paramedics were attending her husband on their street by an individual who was caring for their dog after the incident. She described arriving at the scene while the paramedics were assessing her husband. She reported he was alert and asking for his glasses and their dog at the time she arrived.

22The medical evidence before the Tribunal includes documents from Dr. B and Dr. Bz who both confirm the appellant has suffered from syncope. While the appellant may disagree whether or not there was an explanation for the syncopal episode, he agrees that he suffered from an episode of syncope.

23I find the medical evidence in this case clear and relevant. 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?

24I find that the Minister has not 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.

25The 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”). The Minister referred to CCMTA Standard 19.6.10 which states that commercial drivers with a single episode of unexplained 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.

26The CCMTA Standards 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, reversible or avoidable precipitating factors, and position from which the individual experiences syncope.

27Section 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.

28The Minister argues that the appellant has a cardiac history with a history of myocardial infarction (MI) treated by angioplasty in 1992 and outlines how the appellant has been followed by the Ministry with Cardiovascular Assessment forms on a regular cycle since that time. The Minister submits that the medical reports indicate that he made lifestyle changes following his MI and no further cardiac concerns have been identified through the cyclical monitoring of his condition.

29The Minister testified that the latest Cardiovascular Assessment form completed April 29, 2024, by the appellant’s cardiologist Dr. B. records no further cardiac concerns. However, this report also indicates that 12 months has not passed without an episode of syncope, therefore not meeting CCMTA Standard 19.6.10.

30The appellant argues that his commercial driver’s licence should be reinstated. He relies on the facts that: he followed through with all the medical consultations and investigations advised by his physicians; none of the investigations showed any abnormality of significance; no physician prescribed a medication as treatment for the episode of syncope; nearly 8 months have passed with no further episode; and he has support for reinstating his commercial driver’s licence from his treating physicians.

31The appellant submitted a written list of appointments that he has attended since October 30, 2023, to investigate the episode of syncope. This list includes:

i. Four appointments with his family physician Dr. Bz dated November 2, 2023, January 26, 2024, May 8, 2024, and June 3, 2024.

ii. Two consultations with neurologist Dr. L. on January 2, 2024, and April 8, 2024, along with the completion of investigations ordered by Dr. L., an EEG on March 7, 2024, and a MRI on March 12, 2024.

iii. Several consultations with cardiologist Dr. B. along with the completion of two EKGs, a Holter monitor, a nuclear stress test and an echocardiogram covering appointment dates of February 14, 2024, March 4, 2024, March 6, 2024, March 13, 2024, and April 29, 2024.

32The appellant has submitted a neurological consultation note dated April 8, 2024, from Dr. L which took place after the referenced neurological investigations were completed. The note summarizes that the MRI and EEG did not identify any features concerning for a seizure, and that the appellant was referred to a cardiologist for further investigation. The appellant testified that it was the neurologist Dr. L who referred him to cardiologist Dr. B following the completion of his neurological investigations. The appellant further testified that he has no further follow up with Dr. L and he has been discharged from the neurologist’s care. There is no notation in the consultation note to suggest that the appellant has any future appointments with Dr. L corroborating this history of being discharged from the neurologist’s care.

33The medical evidence submitted by the appellant from his appointments with cardiologist Dr. B include:

i. The most recent consultation note dated April 29, 2024, and

ii. A completed Cardiovascular Assessment form also dated April 29, 2024.

34Dr. B confirms in the Cardiovascular Assessment form that there is no history of left main artery disease, no valvular disease, no arrhythmia or conduction disturbance, no pacemaker or implantable defibrillator insertion, no cardiomyopathy, no congestive heart failure, and the appellant has NYHA class I with no limitations on physical activity and no symptoms during daily activities and is adherent to all recommended treatments. Dr. B has also answered affirmatively to the question of whether the syncope was a single episode of typical vasovagal syncope with no recurrence and answered affirmatively to the question as to whether the underlying cause has been treated or resolved. Furthermore, the appellant notes Dr. B’s support for reinstating his licence in the narrative letter when Dr. B writes, “He [the appellant] will continue his current medical therapy including diet and exercise and we will fill out his MOT form to say that he can drive a car and truck and he can return to work with no restrictions”. It is clear from the consultation letter that Dr. B understood the appellant’s commercial licence had been suspended since the episode.

35The medical evidence submitted by the appellant from his appointments with his family physician Dr. Bz include:

i. A Driver’s Medical Report dated May 8, 2024

ii. A narrative letter dated June 3, 2024

36The appellant notes Dr. Bz’s support for reinstating his commercial licence in the Driver Medical Report when Dr. Bz writes, “Fit for class A”. This support is reiterated in the narrative letter where Dr. Bz writes, “The above patient [the appellant] has been under my medical care for decades. He has recovered from his fainting episode in Oct of 2023 and is on no medication for it. He is fit to resume regular duties as a class A trucker with no restrictions”.

37I acknowledge that commercial drivers often drive under more adverse conditions and drive longer distances than drivers of non-commercial vehicles. Furthermore, should a crash occur, the consequences are much more likely to be serious given the gross weight of the vehicle involved.

38The appellant testified that he has had a commercial licence for over 40 years. He repeatedly drives the same 4-5 day route delivering non-perishable goods and his employer does not impose penalties or sanctions for being late. He has worked for the same company for 10 years. The appellant would not be restricted with his commercial licence to work for the same employer, however in his testimony he demonstrated insight into the responsibility and risks of being a commercial driver, outlining the Department of Transportation regulations related to duration of driving time and required breaks for commercial drivers. He described that adherence to these breaks is how he ensures he does not go without food and drink for extended periods of time as he had on the day of the syncopal event.

39The appellant testified that he is active, walking 5-7 km daily, doesn’t smoke and rarely dinks alcohol. He walked this distance daily prior to this syncopal event and has continued to walk this distance daily since then without any medical concerns. This testimony was corroborated by his spouse. He testified he has been operating a G class licence since February 7, 2024, without incident. Review of his driver’s abstract submitted as part of the Minister’s submissions corroborates this history as it records only 1 prior infraction dated in 2009.

40Although not bound by the CCMTA Standards, I considered them when making the decision. My review of the evidence shows that although the time frame for relicensing outlined in the CCMTA Standards has not been met for a single episode of unexplained syncope, the CCMTA Standards also acknowledge that the syncope standards outline that waiting periods may be modified based on individual factors including the position the syncope occurred during, and in this situation the syncope occurred while standing and not in the seated position as he would be while driving. Furthermore, I acknowledge that Dr. B has answered affirmatively to the question of whether this is a single episode of typical vasovagal syncope and that the corresponding CCMTA Standard does not require a commercial licence to be suspended for any period of time.

41I acknowledge that the Minister has argued their position on the medical condition of syncope based on the appellant’s prior cardiac history. However, I also acknowledge that in appellant’s testimony and the Minister’s written submissions, the appellant was assessed at the time of the syncopal episode by paramedics and transferred to the emergency department where the Emergency Medical record by Dr. W confirms that a “cardiac” laboratory panel work up and EKG were ordered, and the result of the investigations and assessment documented no cardiac concerns and did not arrive at a cardiac diagnosis. Additionally, as discussed, the appellant has been assessed and investigated by a cardiologist who has ordered EKGs, a nuclear stress test, an echocardiogram and a Holter monitor and provided his opinion that the underlying cause has resolved, and he is in support of reinstatement the appellant’s commercial driving privileges.

42Given the risk of sudden incapacitation associated with this medical condition, it is prudent for road safety to ensure that enough time has elapsed that it is unlikely further episodes would occur. However, in this case I find the medical evidence relevant and persuasive. The recommendations of Dr. B and Dr. Bz are clearly in support of the reinstatement of the commercial licence without restriction, they are contemporaneous with the latest letter dated the week prior to the hearing, and by the appellant’s written list of appointments, these are medial opinions that are arrived at only after the passage of almost 8 months and the completion of multiple investigations. I also take note that Dr. B as a cardiologist is well positioned to arrive at a conclusion of cardiac risk for recurrent episodes. His documentation does not indicate any ongoing risk as evidenced by the confirmation that the underlying cause has resolved, and the appellant can return to driving without restrictions. Dr. Bz as a family physician not only has a clear understanding of the entirety of the appellant’s past medical history but would also be in the position to receive all medical documentation completed as part of the work up for this syncopal event. It is clear from the written submissions that the ER report, the consulting cardiologist and neurologist notes were all forwarded to Dr. Bz. Lastly, Dr. Bz has provided his opinion which has also not identified any concern for the risk of recurrence as evidenced by the statement that the appellant has recovered from the episode, and he recommends reinstatement of commercial driving privileges.

43As such, for the reasons cited, I am satisfied on a balance of probabilities that the appellant’s medical condition is not likely to significantly interfere with his ability to drive a commercial vehicle safely.

Conclusion

44I find that the Minister has not discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition that is likely to significantly interfere with his ability to drive a commercial vehicle safely.

ORDER

45For the reasons set out above, pursuant to subsection 50(2) of the Act, I set aside the Minister’s decision to downgrade the appellant’s driver’s licence.