7268 v. Registrar of Motor Vehicles, 2012 CanLII 19570

Licence Tribunal

Appeal d'appel en Tribunal matière de permis

DATE:

2012-04-17

FILE:

7268/MED

CASE NAME:

7268 v. Registrar of Motor Vehicles

Appeal under section 50(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, from a Decision of the Registrar of Motor Vehicles pursuant to section 47(1) of that Act - to Appeal a Suspended Licence

Applicant

Applicant

-and-

Registrar of Motor Vehicles

Respondent

REASONS FOR DECISION AND ORDER

ADJUDICATOR:

D. Ian Turnbull, M.D.

APPEARANCES:

For the Applicant:

Applicant, self-represented

For the Respondent:

Russell McKnight, Agent representing the Registrar of Motor Vehicles

Heard in London:

April 2, 2012

DECISION AND REASONS

This is an appeal to the Licence Appeal Tribunal (the “Tribunal”) by the Applicant respecting a decision of the Registrar of Motor Vehicles (the “Registrar”) pursuant to section 47(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8 (the “Act”).

INTRODUCTION

The Applicant is a 31-year-old woman whose driving privileges were suspended by the Registrar on June 21, 2011 (Exhibit #1) for a seizure disorder.

The Applicant maintains the seizures are the result of discontinuing birth control pills (“BCP”). The Applicant rejects the Neurologist’s suggestion to take anticonvulsant medication because of possible side effects.

An October 26, 2011 (Exhibit #3, Tab 4) report of the Medical Advisory Committee (“MAC”) of the Registrar continued the suspension of the Applicant’s driving privileges.

For consideration of restoration of her driving privileges, the MAC gives the Applicant two options: either a five (5)-year period free of seizures (without anticonvulsant therapy), or one (1)-year seizure-free while taking anticonvulsant medication.

EXHIBITS

1. Notice of Suspension of Driver’s Licence – Registrar – dated June 14, 2011

2. Notice of Appeal - Medical – Applicant – dated March 7, 2012

3. Tabbed Submission (1-7) – Registrar – dated March 7, 2012

FACTS

1. While at a campground in May 2011, the Applicant had two seizures within hours witnessed by her husband. The Applicant was seen at a rural hospital Emergency Room (“ER”) and released each time.

2. The Applicant was seen by a Neurologist on June 7, 2011, who deemed the Applicant had sustained two grand mal seizures and, possibly, an earlier seizure event in March 2011. The Neurologist reported the Applicant to the Registrar (Exhibit #3, Tab 1) under section 203 of the Act.

3. The effective date of the driver’s licence suspension by letter from the Registrar was June 21, 2011 (Exhibit #3, Tab 2).

4. The June 11, 2011 (Exhibit #3, Tab 2) letter of suspension from the Registrar also outlined the medical information required for the Registrar to consider reinstatement of the Applicant’s driving privileges.

5. The Neurologist’s report (Exhibit #3, Tab 3), September 7, 2011, states:

• …most likely this woman does have a generalized seizure disorder.

• …does not want to go on an anticonvulsant medication.

• …is off the birth control pill…

• …is concerned about the possible teratogenic effects of anticonvulsant medication.

6. The Neurologist’s comments on the investigations to date are as follows:

• Normal neurologic examination (Exhibit #3, Tab 3).

• EEG (electroencephalogram) – “mild slowing in the left frontal region which is likely of trivial significance” (Exhibit #3, Tab 3).

• MRI (magnetic resonance imaging) scan of the head was “normal” (Exhibit #3, Tab 3).

7. A Sleep Analysis Report (Exhibit #3, Tab 3c) is reported – “normal sleep study”.

8. These medical reports, plus additional laboratory reports (Exhibit #3 - Tabs D, E, F and G) were forwarded to the MAC of the Registrar for consideration of restoration of the Applicant’s driving privileges.

9. In a November 1, 2011 letter (Exhibit #3, Tab 5), the Registrar concurred with the MAC recommendation that the Applicant’s driving privileges remain suspended.

10. The Applicant states the following:

• The seizures are a result of discontinuing BCP in December 2010.

• The Applicant supports this opinion with 10 pages from an Internet website, “Epilepsy Therapy Project” saying seizures are BCP-withdrawal related.

• The Applicant states the seizures are only at night.

• The Applicant states she would consider anticonvulsant medication if the seizures were “serious”, but currently wants to “wait and see”.

• Her last seizure was July 2011.

11. The Applicant has no demerit points (Exhibit #3, Tab 6).

12. The Applicant filed a Notice of Appeal (Exhibit #2) on March 9, 2012.

ISSUES

Should the decision of the Registrar to suspend the Applicant’s licence be confirmed, modified or set aside?

Does the Applicant no longer suffer from a mental, emotional, nervous or physical disability likely to significantly interfere with her ability to drive a motor vehicle safely?

LAW

O. Reg. 340/94, section 14 states:

(1) An applicant for or a holder of a driver’s licence must not,

(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely; or

(b) be addicted to the use of alcohol or a drug to an extent likely to significantly interfere with his or her ability to drive a motor vehicle safely.

(2) In determining whether an applicant for or a holder of a driver’s licence of any class meets the qualifications described in subsection (1), the Minister,

(a) may take into consideration the relevant medical standards for applicants or holders of that class of driver’s licence set out in the CCMTA Medical Standards for Drivers; and

(b) may require the applicant or holder to provide evidence satisfactory to the Minister that he or she is able to drive a motor vehicle of the applicable class safely, including,

(i) any reports of examinations under section 15, and

(ii) any additional medical information.

(3) Despite clause (2) (a) and unless otherwise provided in this Regulation, if there is a difference between a medical standard set out in the CCMTA Medical Standards for Drivers and a medical standard set out in this Regulation, the Minister shall take into consideration the standard set out in this Regulation instead of the standard set out in the CCMTA Medical Standards for Drivers.

(4) In this section, the CCMTA Medical Standards for Drivers means the document entitled CCMTA Medical Standards for Drivers, published by the Canadian Council of Motor Transport Administrators and dated March 2009, as it may be amended from time to time, that is available on the Internet through the website of the Canadian Council of Motor Transport Administrators.

Section 47(1) states:

Subject to section 47.1, the Registrar may suspend or cancel,

(b) a driver’s licence; …

on the grounds of,

(d) misconduct for which the holder is responsible, directly or indirectly, related to the operation or driving of a motor vehicle;

(e) conviction of the holder for an offence referred to in subsection 210(1) or (2);

(f) the Registrar having reason to believe, having regard to the safety record of the holder or of a person related to the holder, and any other information that the Registrar considers relevant, that the holder will not operate a commercial motor vehicle safely or in accordance with this Act, the regulations and other laws relating to highway safety; or

(g) any other sufficient reason not referred to in clause (d), (e) or (f).

Section 50 of the Act states:

50. (1) Every person aggrieved by a decision of the Minister made under subsection 32(5) for which there is a right of appeal pursuant to a regulation made under clause 32 (14) (n) or a decision of the Registrar under section 17 or 47 may appeal the decision to the Tribunal.

(2) The Tribunal may confirm, modify or set aside the decision of the Minister or the Registrar.

APPLICATION OF THE LAW TO FACTS

The Registrar has made the case that the Applicant’s driving privileges should remain suspended (Exhibit #3, Tab 5).

The Registrar acted correctly suspending the Applicant’s driving privileges following receipt of the Neurologist’s Medical Condition Report (Exhibit #3, Tab 1) of June 7, 2011.

The Neurologist says it is most likely this woman does have a generalized seizure disorder. Since the Applicant has declined anticonvulsant medication, she is at risk of an uncontrolled seizure, without warning. This is an immediate risk to road safety for both herself and the motoring public.

The Applicant stated her seizures are directly related to withdrawal of birth control pills in December 2010. She notes the seizures occurred on a monthly basis (consistent with her cycle), and only occur at night. Currently, she is taking neither birth control pills nor anticonvulsants.

The Applicant believes the seizures are due to her hormones “rebalancing” and this has taken a few months. To support this position, the Applicant has supplied 10 pages from an Internet web site – “Epilepsy Therapy Project”. This is a collection of comments from dozens of women who have experienced seizures after stopping birth control pills. The premise is the seizures are caused by hormone fluctuations following BCP withdrawal.

The anecdotal observations are difficult for the Tribunal to evaluate for many reasons, even with the Applicant’s “highlighting” several comments.

The Applicant is justifiably concerned about the possible teratogenic effects on the fetus of anticonvulsant medications should she become pregnant. There are never any guarantees with any medication. Neurologists are aware of which anticonvulsants are more likely to be associated with side effects.

The Tribunal finds the Applicant is currently suffering from a medical condition (generalized seizures) and may be unfit to safely operate a motor vehicle (O. Reg. 340/94, section 14 (1)(a)).

O. Reg. 340/94, section 14 states:

(1) An applicant for or a holder of a driver’s licence must not,

(a) suffer from any mental, emotional, nervous or physical condition or disability likely to significantly interfere with his or her ability to drive a motor vehicle of the applicable class safely; …

The Tribunal has considered all of the evidence and finds, on a balance of probabilities, the Registrar has acted properly in continuing the suspension of the Applicant’s driving privileges (Exhibit #3, Tab 5).

DECISION

Upon the application by the Applicant to appeal the Registrar’s decision, effective June 21, 2011, to suspend her driver’s licence pursuant to section 47(1) of the Act, and having considered the evidence filed with the Tribunal, and the submissions of the Registrar and of the Applicant;

IT IS THE DECISION OF THE TRIBUNAL pursuant to the authority vested in it under section 50(2) of the Act that the decision of the Registrar be confirmed.

LICENCE APPEAL TRIBUNAL

D. Ian Turnbull, M.D., Member

RELEASED: April 17, 2012