Licence Appeal Tribunal File Number: 16472/MED

An appeal under subsection 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a decision of the Registrar of Motor Vehicles to suspend a licence pursuant to Section 47(1) of the Act.

Between:

Andrew Holmes

Appellant

and

Registrar of Motor Vehicles

Respondent

DECISION

ADJUDICATOR: Dr. Isla McPherson, Member

APPEARANCES:

For the Appellant: Andrew Holmes, Appellant

For the Respondent: Ian Sookram, Agent

Held by teleconference: December 19, 2024

OVERVIEW

1Andrew Holmes (the “appellant”) appeals 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 an unsolicited Medical Condition Report stating that the appellant suffers from a medical condition that may affect his ability to drive a motor vehicle of the applicable class 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 safely drive a motor vehicle of the applicable class safely. Under s. 14(2)(b) of the Regulation, the Registrar may require a driver to provide satisfactory evidence that they are able to drive a vehicle of the applicable class safely.

3The Registrar takes the position that the appellant suffers from a medical condition, namely obstructive sleep apnea (OSA), that is likely to significantly interfere with his ability to drive a vehicle of the applicable class safely and that this provides sufficient reason to suspend his licence under s. 47(1)(g) of the Act.

4The appellant appeals the suspension under s. 50(1) of the Act. He disagrees that he suffers from obstructive sleep apnea and denies that this condition interferes with his ability to drive a vehicle of the applicable class safely.

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 his ability to drive a motor vehicle of the applicable class safely.

7To resolve that issue, I will address the following questions:

i. Does the appellant suffer from OSA?

ii. If so, is this likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely?

8The Registrar bears the burden of proving on a balance of probabilities that the answer to each of the above questions is “yes”.

DOCUMENTARY EVIDENCE

9During his testimony, the appellant referenced several documents, including publicly available information from the Cleveland Clinic, Mayo Clinic, Centre for Disease Control, Mount Sinai, the Canadian Medical Association Journal, the New England Journal of Medicine and the CCMTA Standards among others. As none of these documents had been submitted as part of the appellant’s disclosure, submissions were taken from the appellant and the Registrar regarding accepting these documents as a late submission. Neither the appellant nor the Registrar submitted that these documents should be entered as a late submission.

RESULT

10Having considered all the evidence and submissions and for the reasons that follow, I find that the Registrar 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 motor vehicle of the applicable class safely and I confirm the Registrar’s decision to suspend the appellant’s driver’s licence.

ANALYSIS

Does the appellant suffer from obstructive sleep apnea?

11The evidence presented at the hearing establishes that the appellant suffers from a medical condition, namely OSA.

12The Registrar’s position is supported by:

i. a Medical Condition Report (MCR) dated, April 5, 2024, from Dr. A;

ii. a Consultation Letter dated, April 8, 2024, by Dr. C.

13On April 5, 2024, emergency room (ER) physician, Dr. A, completed a MCR reporting that the appellant suffered from sudden incapacitation due to a seizure that occurred for unknown reasons. The appellant was referred to a neurologist and an acute internal medicine clinic.

14Following receipt of this MCR the Registrar suspended the appellant’s driver’s licence effective April 19, 2024, and requested the completion of a Seizure and Loss of Consciousness Form.

15Several months later, the appellant submitted a consultation report from his appointment at the acute internal medicine clinic which occurred three days after his visit to the ER on April 8, 2024. Internist Dr. C documented he was not convinced that the appellant’s presentation to the ER represented a seizure based on the history. Dr. C documented that the appellant reported a history of heavy snoring, nocturnal gasping and daytime sleepiness and that the appellant’s past medical history was significant for a previous episode of nocturnal apnea/stiffness/contracture during sleep that occurred two months earlier [February 2024]. Dr. C indicated that he believed the appellant had suffered from transient episodes of nocturnal apnea/hypopnea resulting in flexural posturing in the upper and lower extremity and suspected the appellant had severe obstructive sleep apnea. Dr. C subsequently documented that he made an urgent referral to an outpatient sleep study clinic.

16Following receipt of Dr. C’s consultation report, the Registrar changed the medical condition for the suspension from seizure to OSA and requested completion of a Sleep Disorders and Narcolepsy Form in a letter dated November 21, 2024.

17The appellant subsequently submitted a CT scan of his head from a visit to the ER on February 11, 2024, for the same symptoms, to the Registrar. After review of the CT scan, the Registrar reiterated the medical suspension due to OSA and the request for a completed Sleep Disorders and Narcolepsy Form in a letter dated December 5, 2024.

18The appellant testified that he had had two visits to the ER, in February and April 2024, where his ex-partner called an ambulance when she noticed the appellant making “weird sounds in my sleep”. He reported he was fully conscious and awake while waiting for the paramedics to arrive.

19The appellant testified that: he has not been diagnosed with OSA; he has no risk factors for OSA beyond his age and gender; he has suffered from sinusitis at least a dozen times in his life and he was suffering from sinusitis when he was taken to the ER in both February and April; the CT scan from February confirms the diagnosis of sinusitis, and he has had no symptoms of OSA since his sinusitis resolved. The appellant referenced several publicly available online resources from the Cleveland Clinic, Mayo Clinic, Centre for Disease Control, Mount Sinai, Canadian Medical Association Journal and New England Journal of Medicine and reviewed these documents outlining the signs, symptoms and risk factors of sinusitis and OSA. He testified he has done extensive research on OSA, knows more than most people in the province on this condition, and he does not suffer from OSA. He testified that he had also researched several sleep clinics where he found appointments should be rebooked if suffering from sinusitis as this could lead to inaccurate results.

20The appellant testified that he attended a walk-in clinic to have the Registrar’s Sleep Disorder and Narcolepsy Form completed, but the physician advised him that he would have to complete the sleep study and the physician would not get involved in his licence suspension. The appellant testified he visited two subsequent walk-in clinics, one in person and the other virtual, and requested that they confirm that he did not require further assessment with a sleep study, but neither physician provided him with any documentation to support this position.

21Under cross-examination the appellant was questioned whether he had been prescribed any treatments for sinusitis during his visits to the ER in February and April, and responded that he had not. He was questioned whether he presented to the ER during any of the many previous times when he had sinusitis, but he had not. He was questioned regarding whether there were previously concerns with stiff body / flexural posturing / seizure activity during sleep with his sinusitis previously, which he responded he had not.

22The appellant reported he does not have any recollection of the concerns related to having stiff body / flexural posturing / seizure activity that brought him to the ER twice, as he was asleep. He testified that his partner at the time had a tendency to “blow things out of proportion” and that she would have misled the paramedics and ER physicians as to what happened. When asked if his ex-partner attended the acute internal medicine clinic appointment with Dr. C, he reported that she had not.

23Under cross-examination the appellant confirmed the CT scan of his head submitted was completed during the February presentation to the ER. I appreciate that the CT scan reports inflammatory tissue identified within the ethmoid air cells consistent with sinusitis, but also take note on this report the indication and relevant clinical history as to why the CT head was being conducted was, “The patient had a first seizure and the study is being done to rule out a mass”.

24I accept the appellant’s position that he had sinusitis when he presented to the ER in February. While the ER physician’s indication for conducting the CT scan was to rule out a mass causing a seizure, not investigate for sinusitis, the appellant’s position is supported by the finding of ethmoid sinus inflammation on the CT scan. However, the appellant’s testimony that he also had sinusitis in April is not supported by a physician opinion or medical imaging that documents sinusitis, and the absence of any comment of sinusitis is noteworthy in the consult with Dr. C which took place three days following the ER visit. Dr. C’s consultation note is comprehensive, and I give weight to the fact that there was no mention of sinusitis, including in the physical examination or impression and plan. In review of all submitted medical documentation from the two ER visits and acute internal medicine clinic consultation, there is an absence of any physician documentation confirming a diagnosis of sinusitis on these three visits.

25Importantly, sinusitis as an alternative explanation of the medical concern falls short of explaining why the appellant was described as experiencing seizure activity by both the ER physicians and experiencing flexural posturing by Dr. C. The appellant testified he did not have a memory of any abnormal body movements preceding the ER visits as he was asleep, but reiterated his concerns about his ex-partner’s ability to provide an accurate description. The medical documentation consistently reflects concerns about seizure activity or flexural posturing with the initial ER physician ordering a CT scan to investigate the etiology of a first seizure, the second ER physician filling out an MCR for a diagnosis of seizure and lastly Dr. C documenting these presentations of seizure activity as flexural posturing in the upper and lower extremities secondary to severe obstructive sleep apnea. There is no evidence, medical or otherwise, that explains why sinusitis would result in seizure activity or flexural posturing.

26I acknowledge the appellant’s position that he has no risk factors for OSA beyond his age and gender and that he has no symptoms of OSA including no daytime drowsiness. I also acknowledge his position that his ex-partner misled the ED physicians with her description of the events that led to his hospital visits. However, I weigh these points against the contradictory information that is recorded in Dr. C’s consultation report. In this report Dr. C documents, “he tells me he has a history of heavy snoring, nocturnal gasping, some daytime sleepiness”. Dr. C has documented that the appellant reported having several symptoms of OSA and as the appellant testified his ex-partner was not present at this appointment, this information was provided by the appellant to Dr. C. Furthermore, the appellant has requested supportive medical information for his position that he does not have OSA and does not require a sleep study on three different occasions from three different physicians, and he did not receive any medical documentation to support his position.

27In this case I find the medical evidence of two ER physicians and Dr. C, over three separate encounters to be persuasive. Based on the information available, I find that the Registrar has established on a balance of probabilities that the appellant suffers from OSA.

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

28I find that the Registrar has proven on a balance of probabilities that the appellant’s medical condition is likely to significantly interfere with his ability to drive a motor vehicle safely.

29The Registrar’s position is supported by:

i. The consultation letter from Dr. C dated April 8, 2024;

ii. The Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the “CCMTA Standards”).

30The Registrar relies on the CCMTA Standards Chapter 18. Chapter 18 of the Standards document that numerous studies have investigated the relationship between OSA and adverse driving outcomes and the majority of the studies indicate that individuals with OSA have a two to four times greater risk of crash, and these crashes result in more severe injuries. Further, this Standard documents that impairment for drivers with OSA is episodic with sudden incapacitation and drivers are not able to compensate for this impairment. Lastly, CPAP is the most effective treatment for OSA and the only one which has been shown to reduce the risk of motor vehicle accidents.

31The Registrar relies on Standard 18.6.1. This Standard indicates a driver is eligible for a licence if the driver has untreated OSA with an AHI <30, and does not admit to daytime sleepiness; drivers with severe OSA (AHI >=30) are disqualified from driving unless the condition is successfully treated, OR the driver has been assessed by a sleep specialist who is of the opinion that there is a low risk of sleep related crash; any driver with OSA, regardless of severity, who has experienced within the previous 5 years a crash associated with falling asleep or sleepiness while driving must provide evidence that the OSA is successfully treated.

32Section 14(2)(a) of the Regulation allows the Registrar 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 are not bound by them.

33The appellant testified that he did not have a medical condition that would impair his ability to drive and has not had any driving infractions for thirteen years. He testified that all medical professionals are required to report drivers with high-risk conditions that may impair the ability to drive safely, and he has not been reported by a physician for OSA. He testified that based on the logic of the Registrar requiring a sleep study with his only risk factors for OSA being his age and gender, the Registrar should suspend the driver’s licence of any male 50 years or older.

34I appreciate the appellant’s position that he was not reported for OSA by Dr. C. However, I weigh this against the documentation from Dr. C that he was of the understanding that the appellant’s licence was already suspended following a MCR submitted from Dr. A, the ER physician. Dr. C documents, “The ER notes comment on reporting to the MTO”. Dr. C also indicated he planned to follow up to with the ER to confirm, “I have emailed the ER leadership regarding the MTO reporting to determine if this [the MCR] has in fact been completed”.

35Dr. C had documented under his care plan that the appellant would be attending a scheduled appointment with a neurologist in October 2024. Under cross-examination the appellant was questioned whether he had followed up with the neurologist appointment. The appellant testified that he was unwell at the time and did not attend the October appointment, and the appointment was rescheduled to February 2025.

36The appellant was questioned as to whether he attended the sleep clinic appointment urgently set up by Dr. C. He testified that he had an appointment in May or June 2024 but did not attend the sleep clinic as it was unnecessary because he had no symptoms, and he should not be forced by the Registrar to complete a sleep study to have his licence reinstated.

37I appreciate that the appellant testified he should not be forced by the Registrar to complete a sleep study. However, the documentation reflects that the Registrar has requested the completion of a Sleep Disorders and Narcolepsy Form, not a sleep study, and this was requested only after reviewing the documentation from Dr. C that the appellant urgently required a sleep study due to concerns of severe OSA.

38I acknowledge that insight is an important consideration when considering safety to drive. Insight means that a driver understands how a medical condition may impair their functional ability to drive and are monitoring for those periods where the disease state may be incompatible with driving. The appellant’s refusal to undergo the recommended medical assessments, including the sleep study he was urgently referred to, demonstrates a lack of insight into the potential impact of his health concern on his ability to drive safely. This refusal suggests that the appellant does not fully understand the seriousness of the situation, nor the risks posed to themselves and others on the road. I appreciate that the appellant has researched OSA in response to his licence suspension, and testified that he knows more than most people in the province on this topic. However, I give more weight to the medical opinion of a treating physician, and in this situation, Dr. C urgently referred the appellant for a sleep study. The appellant testified the appointment at the sleep clinic was six months or more ago, and he did not attend and has no plans to follow up with the sleep study. Furthermore, I acknowledge that the appellant has not been able to have a physician support his position that he does not require a sleep study despite approaching three different physicians.

39I appreciate the appellant’s position that his medical condition will not interfere with his ability to drive. However, this is weighed against the scientific research documenting: that OSA can have a direct effect upon fitness to drive with up to a quadruple risk of motor vehicle collisions; that these crashes are associated with an increased risk of injury, and that OSA results in sudden incapacitation not allowing for the driver to compensate for the impairment. The appellant has provided no medical opinion that is inconsistent with the scientific evidence which supports the Registrar’s position that his condition is likely to significantly interfere with his ability to drive a motor vehicle safely. Additionally, there is no clear evidence of support for reinstatement of his driver’s licence by any healthcare provider.

40Although this Tribunal is not bound by the CCMTA Standards, they can be considered when making the decision for the reason that 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.

41What the CCMTA Standards document is in cases of severe OSA, drivers are disqualified from driving unless the condition is successfully treated, or the driver has been assessed by a sleep specialist who is of the opinion that there is a low risk of a sleep related crash.

42I appreciate the hardships that the appellant is undergoing with the loss of his driver’s licence but given the medical evidence and the individual merits of this case, I believe it is reasonable that the appellant demonstrate he has no deficits that may result in impairment of the functions necessary for driving.

43As 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 safely.

Conclusion

44I find that the Registrar has discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely OSA, and that condition is likely to significantly interfere with his ability to drive a motor vehicle safely.

ORDER

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