Timothy Sharpe v. Minister of Transportation, 2025 CanLII 5877

Licence Appeal Tribunal

Licence Appeal Tribunal File Number: 16502/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:

Timothy Sharpe Appellant

and

Minister of Transportation Respondent

DECISION

ADJUDICATOR: Dr. Isla McPherson, Member

APPEARANCES:

For the Appellant: Timothy Sharpe, Appellant For the Respondent: Ian Sookram, Agent

Held by teleconference: January 9, 2025

OVERVIEW

1Timothy Sharpe (the "appellant") appeals from the decision of the Minister of Transportation ("Minister") to downgrade his commercial 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 requested medical information indicating 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 the person, in accordance with the results of the examinations and other prescribed requirements.

4The Minister takes the position that the appellant suffers from a medical condition, namely hypertrophic cardiomyopathy, 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 does not deny that he suffers from hypertrophic cardiomyopathy 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 hypertrophic cardiomyopathy?

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 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 confirm the Minister's decision to downgrade the appellant's driver's licence.

ANALYSIS

Does the appellant suffer from hypertrophic cardiomyopathy?

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

12The Minister's position is supported by:

i. a Cardiovascular Assessment Form completed by family physician Dr. H; and

ii. a consultation report completed by cardiologist Dr. N.

13As a commercial driver, the appellant had a medical file with the Minister monitoring his general health dating back to 2009. Since 2009, medical forms submitted have consistently documented the presence of hypertrophic cardiomyopathy.

14The latest medical files that led to the downgrade of the appellant's commercial licence included a Cardiovascular Assessment Form requested by the Minister on August 12, 2024, and a consultation report from cardiologist Dr. N dated August 24, 2024.

15Dr. H completed the Cardiovascular Assessment Form in approximately September 2024, according to the appellant's testimony as the form is undated. On this form Dr. H checked the box indicating that the appellant suffers from hypertrophic cardiomyopathy.

16The appellant testified he has regular appointments with his cardiologist Dr. N, and Dr. N's consult report of August 24, 2024, documents that the appellant is followed for his medical condition of hypertrophic cardiomyopathy.

17The appellant does not dispute that he has hypertrophic cardiomyopathy, and in his testimony was very forthcoming about having this hereditary condition diagnosed in the early 2000s. He reported undergoing a myectomy for his hypertrophic cardiomyopathy in 2008, and included the surgical record as part of his submission package.

18The medical evidence before the Tribunal includes documents from Dr. H and Dr. N who both confirm the appellant has been diagnosed with hypertrophic cardiomyopathy. The appellant confirms he has this condition.

19I find the medical evidence in this case clear and the medical condition not under dispute. Based on the information available, I find that the Minister has established on a balance of probabilities that the appellant suffers from hypertrophic cardiomyopathy.

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

20I find that the Minister has 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.

21The Minister argued that the appellant's medical condition of hypertrophic cardiomyopathy interferes with his ability to drive a commercial vehicle safely and relies on:

i. The medical opinion of Cardiologist and Professor at Queen's University in the Department of Medicine (Cardiology), Dr. S;

ii. the Canadian Medical Association Driver's Guide, 2023, 10th edition, Section 14 (CMA Driver's Guide);

iii. the Canadian Cardiovascular Society 2023 Guidelines on the Fitness to Drive (CCS Guidelines);

iv. the Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the "CCMTA Standards"), Chapter 3.

22Following receipt of the Cardiovascular Assessment Form completed by Dr. H and the consultation note by Dr. N, the Minister provided cardiologist Dr. S with the appellant's medical file and requested his review and recommendation. On November 19, 2024, Dr. S provided the opinion that the appellant was no longer eligible for a commercial licence based on his systolic ejection fraction, "The systolic function (<50%) in the setting HCM [hypertrophic cardiomyopathy] renders the driver ineligible for commercial driving".

23Following receipt of Dr. S's opinion, the Minister downgraded the appellant's commercial licence to a G class licence effective November 19, 2024.

24Under cross-examination, the Minister's representative testified that an expert physician consultant is used in only a very small minority of downgrades and suspensions, and is usually reserved for more complex cases.

25In addition to Dr. S's recommendation, the Minister relies on the CMA Driver's Guide and the CCS Guidelines. The Minister submitted that the CMA Driver's Guide and the CCS Guidelines both document that in drivers with hypertrophic cardiomyopathy, commercial drivers are disqualified from driving if they have any of the following high risk features: wall thickness >= 30 mm, syncope, otherwise unexplained systolic dysfunction (LVEF <50%), and presence of an apical aneurysm or a calculated risk of ventricular arrhythmia above 6% over 5 years.

26The Minister identified that the appellant has a left ventricular ejection fraction <50% as documented by both Dr. H and Dr. N. In the Cardiovascular Assessment Form, Dr. H checked the box indicating the appellant's ejection fraction is 35 – 50%. In Dr. N's consultation report from August 2024, he reported that the appellant suffers from "nonischemic cardiomyopathy heart failure with reduced ejection fraction…", and documented that a contrast echocardiogram completed in September 2023 demonstrated an ejection fraction of 44%. The report further indicates that a more recent echocardiogram study demonstrated "left ventricular systolic dysfunction with visually estimated ejection fraction between 40-50%".

27The appellant submitted an updated echocardiogram report dated December 20, 2024, documenting an ejection fraction of 44%, which further supports the Minister's position.

28The Minister also relied on Canadian Council of Motor Transport Administrators Medical Standards for Drivers [February 2021] (the "CCMTA Standards"). Chapter 3 of the CCMTA Standards indicates that cardiomyopathy causes an episodic impairment of all the functions necessary for driving and, as such, the driver cannot compensate.

29The Minister highlighted Standard 3.6.48, which documents standards for commercial drivers with hypertrophic cardiomyopathy. In this Standard, the Minister noted that the recommendations are taken from the CCS Guidelines. The Minister further acknowledged that the CCMTA Standard does not reflect the current CCS recommendation regarding a reduced ejection fraction, but reported the CCMTA Standard is outdated and is currently undergoing revision to reflect the 2023 CCS Guidelines, and is expected to be released in the first quarter of 2025.

30Section 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.

31The appellant acknowledged that "the numbers speak for themselves" and he does not argue that his ejection fraction meets the threshold established in the CCS Guidelines to hold a commercial licence. However, he testified that he may be an exception to these Guidelines for several reasons: he has had hypertrophic cardiomyopathy for 25 years, has followed all of the recommendations from his physician, has not been admitted to hospital with heart problems since his heart surgery in 2008, and has driven with an ejection fraction below 50% safely before the Guidelines were updated. The appellant reported that he understands the importance of safe roads and has a spotless driving record.

32The appellant testified regarding his latest appointment with his cardiologist Dr. N. The appellant testified that he had an updated echocardiogram less than three weeks prior to the hearing, on December 20, 2024, and had a follow up appointment with Dr. N a few days later. During the appointment with Dr. N, the appellant testified he discussed his downgraded licence, the new CCS Guidelines, and requested a letter of support to reinstate his commercial licence. The appellant reported that Dr. N was sympathetic to his situation and acknowledged that his cardiac condition had not recently changed, but Dr. N declined writing him a letter of support.

33The appellant was asked about treatments for his medical condition. The appellant testified that he has always followed the recommendations of his physicians. He had previously taken amiodarone for the arrhythmia of atrial fibrillation. This medication was later discontinued when he was found to be experiencing side effects. He currently takes six cardiovascular medications daily. He reported he has had Holter monitors completed periodically to monitor his heart rhythm at the request of his cardiologist, but has not had one done in the last few years.

34The appellant testified that he drives a flatbed truck 3500 – 4000 miles every two weeks to the United States and back. He drives approximately 8 hours per day and testified he always stays within the regulations of driving hours permitted. He carries chains, coils, electrical equipment and loads/unloads his own truck.

35I appreciate the appellant's frustration that he has become ineligible for a commercial licence following an update of the CCS Guidelines, although I balance that with the recognition that the CCS Guidelines are not published frequently nor frivolously. They are produced by cardiovascular researchers and clinicians, and updated periodically in response to advances in investigation and management of cardiovascular diseases. The 2023 Guidelines were developed to address the need perceived by CCS members to update 2003-2004 guidelines in response to significant developments in the evaluation and treatment of cardiac disorders that rendered previous recommendations outdated or obsolete. Further, these 2023 Guidelines were formulated on the best evidence available to guide risk assessment, reporting, and fill a gap in knowledge synthesis pertaining to the risk of sudden incapacitation across cardiovascular conditions. Lastly, the updated 2023 Guidelines have taken into consideration estimates of risk in patients on contemporary therapy for cardiovascular diseases.

36I also acknowledge the appellant's position that he has driven safely with an ejection fraction under 50%. However, in review of the medical documentation provided back to 2008, I note that the vast majority of this time the appellant had an ejection fraction greater than 50%, and only recently has the heart function declined and ejection fraction dropped below the threshold in the CCS Guidelines. I also give weight to the point that the CCS Guidelines highlight that cardiovascular conditions are among the most frequent causes of impairment to drive, and that drivers with cardiomyopathy pose a risk to driving because sudden incapacitation is so common in this group.

37While Guidelines are important to consider, they should not act as a substitute for clinical judgement and assessment of risk with appropriate regard to the individual circumstances of each driver. The appellant testified he has been a patient of Dr. N's since 2013. As a cardiologist who has followed the course of the appellant's heart condition with regularity for over a decade, I believe Dr. N is in a position to provide an informed opinion specific to the appellant's heart condition and fitness to drive. I also acknowledge that the original hearing date was adjourned at the appellant's request to allow him an opportunity to seek further medical documentation from Dr. N. As such, I give weight to the fact that Dr. N did not provide a medical opinion or supportive letter when asked to do so by the appellant. The absence of this requested medical evidence is notable. Furthermore, I acknowledge that a second cardiologist, Dr. S, has also had the opportunity to review the individual characteristics of the appellant's medical file dating back over a decade and arrived at the opinion that the appellant is ineligible for a commercial driver's licence.

38I acknowledge the appellant's position that he has driven a commercial vehicle safely for years, and continuing to drive a commercial vehicle would not pose a risk to road safety. I understand the CCS Guidelines, CMA Driver's Guide and CCMTA Standards for commercial drivers all require a higher level of fitness than those that operate G class vehicles. I acknowledge that the differences in these standards are significant to the appellant, but I disagree that there is no additional risk to road safety when operating a commercial vehicle. I believe that the standard for driving a commercial vehicle is higher for the reasons that these drivers spend many more hours driving, often drive under far more adverse conditions, are often unable to select their hours of work, cannot readily abandon their cargo should they become unwell on duty, may also be required to undertake heavy physical work such as loading or unloading vehicles, and lastly, because should the commercial driver suffer a collision, the consequences are much more likely to be serious. The appellant testified that many of these conditions are present in the work he does as a commercial driver. Furthermore, as the risk of impairment with hypertrophic cardiomyopathy is sudden incapacitation with no ability to compensate, should he become impaired while driving, it is not difficult to understand how the consequences could be disastrous for the appellant and other road users.

39Although not bound by the CCS Guidelines, the CMA Driver's Guide, nor the CCMTA Standards, I considered them when making the decision because all of these publications are the result of lengthy and intensive processes to provide medical standards based on the best evidence available. More specifically, the CCS Guidelines fill a gap in knowledge synthesis pertaining to the risk of sudden incapacitation of cardiovascular conditions and consider estimates of risk in drivers on contemporary therapy for cardiovascular diseases.

40My review of the evidence shows that the conditions recommended for holding a commercial licence outlined in the CCS Guidelines and CMA Driver's Guide have not been met, and as the CCMTA Standards clearly document that they rely on the CCS recommendations, I accept that the updated Standards would not be met either. Furthermore, expert opinion from cardiologist Dr. S advises against commercial licensure.

41I acknowledge the burden that the lack of a commercial driver's licence is having on the appellant, but recognize that there is no opinion of a healthcare provider to support his position nor any medical evidence that supports the safety of driving a commercial vehicle with an ejection fraction of less than 50% in the setting of hypertrophic cardiomyopathy. This is weighed against the current and relevant medical evidence that the appellant does not meet the guidelines for relicensing, and the documented risks of sudden incapacitation with no ability to compensate that results from hypertrophic cardiomyopathy.

42As 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 a commercial vehicle safely.

Conclusion

43I find that the Minister has discharged the onus of establishing on a balance of probabilities that the appellant suffers from a medical condition, namely hypertrophic cardiomyopathy, and that medical condition is likely to significantly interfere with his ability to drive a commercial vehicle safely.

ORDER

44For the reasons set out above, pursuant to subsection 50(2) of the Act, I confirm the Minister's decision to downgrade the appellant's driver's licence.