Toby Pustai v. Minister of Transportation, 2025 CanLII 5845

Licence Appeal Tribunal File Number: 16396/MED

In a 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:

Toby Pustai Appellant

and

Minister of Transportation Respondent

DECISION & ORDER

ADJUDICATORS: Dr. Dimitri Louvish, M.D., Member Raymond C. Ramdayal, Member

APPEARANCES: For the Appellant: Toby Pustai, Self-Represented For the Respondent: Stephen Grootenboer, Representative

Heard: December 19, 2024

OVERVIEW

1Toby Pustai (the “appellant”) appeals from the decision of the Minister of Transportation (the “respondent”) to downgrade his class ACM driver’s licence to a class GM licence for medical reasons under s. 32(5)(b)(i) and s. 50 of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”) after the respondent received an undated Cardiovascular form from a treating health care provider that the appellant suffers from a medical condition that may affect their ability to drive safely.

2The respondent 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 which is likely to significantly interfere with his or her ability to drive a motor vehicle 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 respondent takes the position that the appellant suffers from a medical condition, namely a heart condition with an implantable cardioverter/defibrillator, that is likely to significantly interfere with their ability to drive safely and that this provides sufficient reason to suspend their commercial licence under s. 47(1)(g) of the Act.

4The appellant appeals the suspension under s. 50(1) of the Act. They deny that they suffer from the medical condition alleged and deny that they suffer from a medical condition which interferes with their ability to drive safely. In fact, the appellant argues that he has only experienced improvement in his medical condition since 2021.

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 respondent.

ISSUE

6The issue in this appeal is whether the appellant’s reported medical condition, namely implantable cardioverter/defibrillator, is likely to significantly interfere with their ability to drive a motor vehicle of the applicable class safely.

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

• Does the appellant suffer from the medical condition alleged?

• If so, is this likely to significantly interfere with their ability to drive a commercial vehicle safely?

The respondent bears the burden of proving on a balance of probabilities that the answer to each of these questions is ‘yes.’

RESULT

8Having considered all the evidence and submissions and for the reasons that follow, we find that the respondent 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 commercial vehicle safely. Therefore, we set aside the respondent’s decision to suspend the appellant’s commercial driver’s licence.

ANALYSIS

9By letter dated October 10, 2024, the respondent advised the appellant that his licence was being suspended because he no longer meets the standards for a commercial licence due to his implantable cardioverter/defibrillator (ICD).

10The appellant was first diagnosed with congestive heart failure in 2019 and came to the attention of the Ministry of Transportation when they received an unsolicited medical report on July 28, 2021, from Dr. Ian Gliklich indicating the appellant suffers from atrial fibrillation, cardiomyopathy, and mild coronary artery disease. He also has diabetes which is controlled with medication. As a result, in their letter to the appellant dated August 17, 2021, the respondent requested additional information, namely the completion of a Cardiovascular Assessment. The appellant complied and his commercial licence was changed to a Class G licence.

11The appellant had an ICD implanted in February 2020 after he experienced swelling in his cheeks while on a trip. He initially thought it was a blood clot and sought medical attention. It was later determined that an ICD was the best course of action. The appellant continued to drive during that time.

12The appellant attended regular follow-up appointments. A follow-up report from Dr. Gliklich on September 8, 2021, indicated that the appellant was functioning very well. He was completely compliant with his medication and was doing very well and in stable condition. Despite this, the respondent sent a letter to the appellant on October 18, 2021, stating that he no longer met the National Medical Standards for a commercial licence due to his heart condition. At that time, they did not cite the issue of an implanted ICD but this would later become the primary reason for the downgrade in his licence. In their October 18, 2021 letter, the respondent requested a further report with confirmation that he was assessed as NYHA Class I or II, as well as confirmation that his left ventricular ejection fraction (EF) is greater than or equal to 35% since the appellant had an EF in the past of 28%.

13The appellant provided the information to the satisfaction of the respondent and had his commercial licence reinstated on October 31, 2021. Recent investigations now show that he has an EF of 39% and non-sustained ventricular tachycardia.

14In addition to this, the appellant has also been seen by Dr. Saleem Kassam, Cardiology Associate from Corcare, who attests in a report dated November 11, 2024, that he is less than 1% risk of sudden cardiac incapacitation annually. Despite this, the Ministry of Transportation’s Medical Review Team sent an email to the appellant dated November 26, 2024, indicating that they do not share the same position and that the appellant’s driver’s licence would remain suspended.

15The respondent holds the position that, although the appellant received a low risk assessment for his ability to operate a commercial vehicle safely, he cannot be assigned that risk due to his multiple heart conditions. As such, they are asking the Tribunal to confirm the downgrade of his driver’s licence.

Does the appellant suffer from the medical condition alleged?

16The onus is on the respondent to prove to the Tribunal on a balance of probabilities that the appellant suffers from a medical condition, namely heart condition with an implantable cardioverter/defibrillator. While we find that the appellant does suffer from a medical condition, we find that he has provided substantive documentary evidence to show that his condition is stable and, in some regards, improving compared to his condition when he was first diagnosed.

17At the hearing, we received information which supports the appellant’s testimony that he has been compliant with medication and has not experienced any symptoms. In addition to this, the appellant spoke about his daily routine which includes exercising and adopting a healthy lifestyle. It is apparent that the appellant has taken proactive steps towards looking after his health and his doctor has not raised any concerns at this time. The appellant also advised that he had a MUGA scan in 2023 with no negative results.

18Along with being fully compliant with his medication and being symptom free, the appellant takes appropriate steps to monitor his health. He regularly downloads ICD information and continues routine visits with the Arrhythmia Clinic at Scarborough General Hospital. In addition to this, he is followed by Dr. Kassam with whom he has regular appointments.

19The appellant also testified that his ICD has never discharged since being implanted. He also provided medical reports which confirmed this. The appellant states that he has never had a heart attack or stroke and does not smoke. He stated that he rarely drinks and does not participate in recreational substance use. In fact, he is subject to random drug testing through his work and has never been flagged for substance use.

20We find that while a medical condition may exist, it is being controlled and managed with professional medical intervention/monitoring, as well as the appellant’s compliance with medication and routine follow up. The appellant also shows some insight into his condition and takes the necessary steps to ensure he lives a clean and healthy life. The appellant has also successfully maintained a class G licence during the entire duration of time with no negative incidents.

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

21We find that the appellant’s medical condition is not likely to significantly interfere with their ability to drive a commercial vehicle safely.

22The appellant testified that his commercial driver’s licence is important to him for work purposes. We did not receive any evidence to suggest that his medical condition has interfered with his ability to perform his work in the past. He has also maintained his G class licence throughout.

23We are in receipt of a medical reports which indicate that the appellant’s is doing well and his condition is stable and well managed. He has never received an ICD discharge and his annual risk of hemodynamically unstable arrhythmia is very low at less than 1%.

24The appellant’s medical condition is being properly monitored by his treatment providers, and he has been compliant with medication and attending all medical appointments. This is supported by medical reports which were submitted as evidence during the hearing. He presents as stable and his condition has improved since the time he was first diagnosed. All provide us with the reassurance that his medical condition is being properly managed.

25We did not receive any compelling evidence from the respondent that would indicate that the appellant’s medical condition will significantly interfere with his ability to drive a commercial motor vehicle safely.

26In our assessment, we find that the appellant has shown that his condition is stable and well managed. He also has the support of his treatment providers.

27While the respondent has proven the answer to be “yes” to the first issue on whether a medical condition exists, we find on a balance of probabilities that they have not met the same burden on the second issue, that the appellant cannot safely operate a commercial vehicle due to that medical condition.

28We have taken into consideration section 14(2)(a) of the Regulation which allows the Minister of Transportation (“Minister”) to consider the Canadian Council of Motor Transport Administrators (“CCMTA”) Medical for Drivers when determining whether the requirements of s. 14(1) are met. Similarly, the Tribunal may take the CCMTA Standards into consideration, although they are not binding. In this matter, the respondent is relying on the CCMTA Standard 3.6.26 relating to ICD implanted as primary prophylaxis – commercial drivers. The standard states:

Commercial drivers generally not eligible for a license. May be eligible if

• Cardiologist assessment indicates that the annual risk of sudden incapacitation is 1% or less, and

• The driver meets the standard for ICD implanted as a primary prophylaxis in non-commercial drivers 3.6.25

29Standard 3.6.25 states:

Non-commercial drivers eligible for a licence if

• They are assessed as NYHA Class I, II, or III

• It has been 4 weeks or more since ICD implant (if applicable), and

• The conditions for maintaining a licence are met (if applicable)

30We find that the appellant has provided a medical opinion stating that his annual risk of sudden incapacitation is less than 1%. In addition to this, he also provided confirmation that he was assessed as NHCLA Class I on October 8, 2021. We place greater weight on the appellant’s medical reports and doctors’ findings than the conclusion reached by the respondent after their review.

31While the CCMTA Standards are reasonable and we can take them into account, we are not bound by them. We have determined this case on its own merits, which may include consideration of the CCMTA Standards and the appellant’s own circumstances.

32For the above reasons, we agree with the appellant’s position that his medical condition is not likely to significantly interfere with his ability to drive a motor vehicle of the applicable class safely.

Conclusion

33We find that the respondent has failed to discharge the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition that is likely to significantly interfere with their ability to drive a commercial vehicle safely.

ORDER

34For the reasons set out above, pursuant to subsection 50(2) of the Act, we set aside the respondent’s decision to downgrade the appellant’s ACM driver’s licence to a class GM licence.